Category Archives: Small Business Service

Free Wills Month: Your Mortality? It’s Not Morbid.

tigerThis month for the entire month of May, this law office is participating in a campaign known as Free Wills Month. Anyone over the age of 55 years old (or married to someone 55 and up) can get a FREE consultation with us to prepare a simple will.

For those of you who follow the blog, you may remember that we did this promotion two years ago. You can check out the inaugural blog here.

Anyway, this is one of those things that should be an easy sell. Everyone likes things that a free, but when it comes to pondering one’s eventual demise, people are incredibly reluctant to do so. Specifically, older people. This makes total sense and is natural, but in some way it’s counter intuitive. We plan for our weddings. We plan for vacations. We plan for every other event in our lives except  death.

This is not to disparage or demean the Baby Boomers in my life, but you guys…please, come on.  Your children and extended family will very much appreciate knowing your desires about what should happen to your belongings when you meet the fate that will greet us all. Dad, if you’re reading this, this blog is dedicated to you. I sincerely hope that after years of patient badgering, I have worn you down and finally convinced you to follow my advice.

Love always,

Your tireless youngest daughter

P.S. This campaign directly benefits Texas Children’s Hospital and will run from May 1 to May 31, 2016. For more information, check out the website.

Online Comments, Reviews, and Defamation: Where’s the Line?

011On the internet everyone is a critic. Sites like Yelp, Angie’s List, Google Plus, and other platforms regularly offer people an opportunity to express how they feel about a business and describe what kind of experiences they’ve had. What all of these sites have in common, however, is a lack of any kind of warning about the risks that come along with leaving a negative customer review.

People posting reviews online are typically seeking an outlet to describe what they may perceive to be a warning to other potential buyers, but they may not realize the inherent downside in that 1 star Yelp review. Negative reviews may result in decreased business for the company receiving the critique and could also damage that company’s reputation. That damage is actionable. A number of people have been sued by private companies for writing derogatory comments about their customer experiences. A contractor in Virginia sued (and won) a judgment against a Virginia woman who accused him of billing her for work he didn’t actually perform and possibly stealing her jewelry. The court in that case ordered her to re-write her online review on Angie’s List. That decision was later reversed, but the angry customer may still be liable for monetary damages.

Writing a review online that is false, misleading, or embarrassing could open you up to a different type of liability as well: defamation. This cause of action is very broad and typically difficult to defend against. So what’s the moral to the story? Is it really worth it to vent your frustrations online about a bad experience with a business? The website hosting your review is immune from civil liability under federal law, but you aren’t. If you are going to post an online review, please make sure that your review is at the very least truthful and free of embellishment.

If you find yourself on the receiving end of a citation because of your online comments about a business, make sure you receive sound legal counsel about how to respond to the lawsuit and what steps to take to protect yourself from further liability. If you’re a business who has been damaged by a customer’s review online, you also need to talk to a lawyer to determine what exactly your rights are. The internet has brought with it a very powerful tool for transparency and accountability in the market place, but that tool (like every tool) has its risks. Buyers beware! Businesses be warned!

 

Source: http://ideas.time.com/2013/01/07/yelp-reviewers-beware-you-can-get-sued/

3 Legal Things to Do Differently in 2015

CFPjCOO21. Write a will

Nobody likes to think about the inevitable but life can change in an instant. Does anyone ever plan to have  a car accident or fall ill? Of course not. But we buy car insurance and medical insurance anyway. If you have children, own a business, or anticipate having a family, a last will & testament makes your assets and wishes known to the people who are important to you. Make 2015 the year you get your affairs in order!

2. Stop paying for speeding tickets.

Most people get a citation for speeding, running a red light, expired registration, or any other traffic violation, and they look up the ticket number online or call the court before the deadline and pay the fine. Big mistake! You are entitled to a jury trial in traffic cases. This means the state (usually the city or county in traffic court) has the burden of proving you committed the offense beyond a reasonable doubt.  Before you pay that ticket, think about calling an attorney to represent you. We are often able to get your ticket dismissed or your fines significantly reduced.

Even if you don’t want to try your case, many offenses are eligible for deferred disposition, also known as probation. If you take this option, you simply pay a fine and promise not to commit the offense again for a period of six months to a year, as determined by the court. If you can successfully avoid being pulled over during that period, your ticket will be dismissed.

3.  Think about Incorporating Your Business

Did you know that if you own a business as a sole proprietor in your own name, and you are sued in connection with your work, all of your assets are at risk?  If you’re a start up with no money, you may be considered “judgment proof,” but you will (probably) not always be broke, and it’s a good idea to plan for the future. In the event that you are even moderately successful in your business, it’s a good idea to consider incorporating your business. Not only does it protect your personal assets from creditors, but there are a number of tax benefits available to corporations that could save you some money around tax season.

If you’re interested in starting the year off on a proactive note, be sure to contact an attorney at (713) 574-8626 to schedule your initial consultation.

Some Thoughts on Legal Max in Miami, FL

LegalMaxThis weekend I attended the Legal Max seminar hosted by Dave Lorenzo, the man pictured to my right. I learned some really great ideas that I wanted to share on my blog. One of the things that struck me about Dave and the other awesome presenters was their enthusiasm. As I wind down 2014 and think about the strides I’ve taken in my legal career, it was important to me to sharpen my business chops and make sure that I invested time in learning what it would take to bring my law firm from good to great. These are the three things that left the greatest impression on me from the conference.

1. Differentiation is Everything. Lawyers are everywhere and legal services are available in abundance from Legal Zoom to prepaid legal plans. The attorney who doesn’t take the time to do things differently from her peers is destined for a mediocre career and a constant struggle to make new clients. My goal in 2015 is to be the lawyer who brings the most value to her clients and keeps in touch with former clients because at the end of the day, my clients are my biggest priority. Like all relationships, it’s paramount for me to keep the lines of communication open between myself and my current and former clients. They should never forget that they have a lawyer in the family.

2. Being on the first page of Google is a misguided goal.

“If you aren’t on the internet, you don’t exist to people looking for lawyers on the internet.” –direct quote from Brian Tannebaum, former Above the Law.com columnist

Mr. Tannebaum’s presentation made a great point: people are on the internet looking for information and the best deal available. If I want to be the cheapest attorney, then the internet browsing crowd is my target audience. If I want to create a different type of client base, the internet becomes significantly less important. There are so many ways for me to keep in touch with current and former clients, so why should I spend money on an “internet marketer?” That expense could be used to improve the quality of service I provide my clients, so unlike the herds of other lawyers, my goal is to do things differently from my competitors. I certainly hope people continue to browse my website, and my plan in 2015 is to focus on writing quality content that helps people make better choices in their lives. If they decide they want to hire me after reading something that resonates with them or helps them answer a question, then fantastic.  Otherwise, I want my blog to be a source of useful information that gives people an idea of who I am and how I may be of service to them.

3. Don’t assume people know what you do. This applies not only to lawyers but to folks in all service-oriented professions. My friends and family may know I’m an attorney, but do they really know what I do? It would be naive of me to think that my family and friends actually read my blog or take that big of an interest in what type of law I practice. So what’s a lawyer to do? What’s a CPA to do? What’s a therapist to do? We have to make an effort to remind people of what it is we actually do and what kinds of clients we are looking for.

Friends, family, and former clients are just like everyone else. They are focused on themselves and their own lives. The only way to stay on their mind is to get in front of them in some way. This simple idea made a big impact on me, and I look forward to creating an email and a print newsletter to keep in touch with the people in my life to let them know what I’m doing and remind them that I’m always here, no matter what their problem may be. Even if I can’t directly respond to their problem, there’s a good chance I can refer them to someone else that I know and trust. Aside from all of the great things I gained from the conference, I also went on a fantastic boat tour of Miami Beach, Florida. Overall, it was a great weekend, and I look forward to putting these insights into practice as we head into the new year. To check out photos from my trip, feel free to add me on Instagram @sugarlandesq.

Are You Proactive or Reactive?

Hey youMost of the time I meet people in the middle of a crisis. Sometimes a loved one has recently died. Other times my clients have pending criminal charges or lawsuits filed against them. In these instances, my clients are reacting to the slings and arrows of life. Crises happen and are sometimes unavoidable. However, there are times when you can prepare for what lies ahead. Being prepared for the future and planning for some of the inevitable challenges that we all face is how I define being proactive. Instead of reacting to your circumstances, you are creating options and opportunities for yourself.

  • When a person comes to me to write a last will & testament, I know my new client is proactive.
  • When a person comes to me to ask questions about a contract before signing it, I know he or she is proactive.
  • When the owner of a start-up comes to me to incorporate his new business, I know he is proactive.
  • When a person inquires about power of attorney documents so that their affairs are handled before they go overseas for military service or business, I know that person is proactive.
  • Any time I am asked to actively market oil, gas, and minerals for mineral owners seeking a sale or a lease of their property, I know my clients are proactive.

You may be wondering, “why does this matter?” It matters because being proactive puts my client in the driver’s seat of his or her life. I have a greater ability to assist the proactive client because I know that person is looking ahead to what could be instead of instinctively reacting to their current circumstances.  This changes the dynamic of our relationship and allows me to make suggestions, ask questions about their concerns, and generally be of more value.

I appreciate all of my clients, but frankly, the proactive clients are my favorite. They have emergencies. Everyone does, but more often than not, they are better prepared when trouble comes their way because they sought my counsel before something has even gone wrong in the first place. Don’t wait for the other shoe to drop. Contact a lawyer to discuss your future, your business, the birth of your first child, you pending nuptials, or any other major life change you may be facing. You might be surprised what you learn, and how I may be of use to you in the long run.

To schedule a consultation with an attorney who wants to build a lifetime relationship with you, call (713) 574-8626.

Has a Former Employee Stolen your Ideas? Protect Your Trade Secrets Part 3

Businesses that get caught up in trade secret disputes and litigation often have to disclose some aspect of their trade secrets in order to prove or disprove allegations and claims.  This potentially causes much risk in pursuing or defending against trade secret-stealing former employees, competitors, and other thieves.  Now that Texas has enacted the TUTSA, hopefully many of the protections built in the law will help positively address these ongoing concerns and encourage trade secret owners to protect their proprietary information in a proactive way.

Pursuant to TUTSA, actual and threatened misappropriation may be enjoined or stopped by a court order. Texas courts have traditionally been reluctant to expressly recognize the idea of “threatened misappropriation,” which is often linked to the “inevitable disclosure” doctrine, or the idea that the information will eventually become public knowledge and thus no longer secret. The inclusion of the “threatened misappropriation” language in TUTSA should be particularly useful for a company seeking to enjoin the activities of a former employee who joins a competitor or starts a competing business because the injunction may be applied before any trade secret information has been used to the company’s detriment. Moreover, TUTSA allows the continuation of an injunction for additional time to eliminate any commercial advantage derived from misappropriation, rather than termination of the injunction once the protected information is no longer secret. TUTSA also gives courts the power to compel “affirmative acts to protect a trade secret” under appropriate circumstances. This provision is great news for trade secret owners who can now stop the spread of their information before it starts with the help of the courts under TUTSA.

  1. Provision for Attorneys’ Fees and Monetary Damages

The ability to recover attorneys’ fees is a new form of relief available under TUTSA. Texas courts will now have discretion to award the prevailing party its reasonable attorneys’ fees where willful and malicious misappropriation is shown. Trade secret owners will be much more likely to pursue these claims because the threat of mounting legal fees will no longer be a deterrent. Further, attorneys’ fees may be awarded for misappropriation claims made in bad faith. Previously, any claim for attorneys’ fees relied on a separate cause of action such as breach of a confidentiality agreement or recovery under the Texas Theft Liability Act (“TTLA”).Caution must be exercised here, however, because claims brought in bad faith (or without merit) will require the trade mark owner to pay the attorneys’ fees of the other party if the owner loses.

With respect to monetary damages, TUTSA provides for the actual loss caused by the misappropriation, as well as any unjust enrichment not included in the actual loss computation. Unjust enrichment could include a defendant’s increased revenues and resulting profits, reduced production costs and resulting profits, and the avoided cost of development. Furthermore, a court has the power, in exceptional circumstances, to condition future use of the trade secrets upon payment of a reasonable royalty for no longer than the period of time for which use could have been prohibited. Alternatively, damages may be calculated by a reasonable royalty for the unauthorized use or disclosure of a trade secret. TUTSA also makes exemplary damages available for willful and malicious misappropriation proven by clear and convincing evidence. However, such an exemplary damages award is limited by TUTSA to no more than twice the amount of actual damages.

2. Enhanced  Protection for Trade Secrets during Litigation

In addition to the trade secret protections discussed above, TUTSA tasks courts with preserving the secrecy of an alleged trade secret, and it provides “a presumption in favor of granting protective orders to preserve the secrecy of trade secrets.” Among the means of protecting trade secrets through protective orders, TUTSA specifically includes “provisions limiting access to confidential information to only the attorneys and their experts” and ordering parties not to disclose alleged trade secrets during litigation.

3. Reverse Engineering Not Inherently Improper

Although TUTSA generally expands a company’s ability to protect its trade secrets, there are statutory limits. Excluded from the Act’s definition of trade secret is any information learned through the “reverse engineering” of a competitor’s product, which is defined as “the process of studying, analyzing, or disassembling a product or device to discover its design, structure, construction, or source code.” Thus, assuming the product was lawfully acquired, a company remains without legal recourse against a competitor that learns how it is made through reverse engineering.

TUTSA also provides examples of activities that are not considered improper means of acquiring a trade secret. However, TUTSA stipulates that a trade secret acquired or learned by “proper means” is not a source of liability for the learner.  “Proper means” includes independent development and reverse engineering, unless prohibited. Therefore, a license agreement which prohibits the reverse engineering of a licensed product will indeed protect the trade secrets of that product since any reverse engineering would therefore fall under the “unless prohibited” language.

What TUTSA Has Not Changed

The three-year statute of limitations on misappropriation of trade secrets remains unchanged.  Also note that TUTSA does not apply, however, to any trade secret misappropriation or continuing misappropriations that occurred prior to September 1, 2013.

For more information about how to further protect your business ideas and trade secrets, please call us today at (713) 574-8626.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

#Sugar Land business lawyer

Protecting Your Trade Secrets Part 2: TUTSA to the Rescue!

 

If you own a business that has proprietary information of any kind (secret recipes, customer lists, technical data, etc.), you will be glad to know that Texas has enacted a law just for you. The Texas Uniform Trade Secrets Act (“TUTSA”) was modeled after the Uniform Trade Secrets Act (“UTSA”) authored by the Uniform Law Commissioners of the National Conference of Commissioners on Uniform State Laws in 1979. States without UTSA depend on the common law to resolve disputes over misappropriation of trade secrets. This creates great uncertainty for industry, particularly for companies that conduct business in more than one state, since the courts in different jurisdictions have made conflicting decisions on trade secret issues. Additionally, some important issues have never been adequately addressed in the common law. Variations in state law have created confusion about which law should be applied, and encourage litigants to “forum shop” or file their lawsuits in the jurisdiction with the most favorable laws.

Under the common law, some fundamental concepts were disturbingly unclear, including the precise definition of a “trade secret,” and the question of rights and equitable relief for businesses whose secrets have been improperly obtained and used. In the past, only experts in trade secrets law have been able to interpret the existing law. The uniform act was written to clarify rights and remedies, making the law comprehensible to a far broader segment of the legal profession. As a result, private industry should find it easier, and ultimately less expensive, to obtain competent legal assistance in protecting trade secrets. With these goals in mind, Texas became the 48th state to adopt its version of the UTSA. The adoption of substantially similar language to the uniform statute will make Texas’s trade secrets law more consistent with the laws of other states.

The Texas Uniform Trade Secrets Act went into effect on September 1, 2013.1 Similar to UTSA, the focus of TUTSA is primarily to codify Texas’s current trade secret law, while strengthening trade secret protections and providing greater certainty to misappropriation claims. The new statute can be found in Texas Civil Practice & Remedies Code Chapter 134A.

What Is Misappropriation?

Misappropriation means acquiring a trade secret by “improper means” or from someone who has acquired it through “improper means.” Things like theft, bribery, and misrepresentation are “improper means.” Misappropriation also includes disclosure and use of a trade secret acquired through “improper means.” If there is a misappropriation, the injured person may be entitled to injunctive relief and damages. If there is willful and malicious misappropriation, the injured party may be entitled to exemplary damages.

If you believe a former employee or competitor has gotten your proprietary information without your knowledge or consent, call us today at (713) 574-8626.

How to Protect your Business’ Trade Secrets Part 1

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This blog is specifically for business owners. If you have formulas, special recipes, client lists, or any other information you wouldn’t want your competitors to have, pay close attention. There are a few steps you can take that will protect your trade secrets and the livelihood of your business. Texas passed a new law called the TUTSA that will be discussed in detail later that is a boon to small business owners because it provides increased protection and secrecy during trade secret litigation. Before you get to that point, however, take heed to the following:

  1. Identify Trade Secrets

Businesses should identify what information is considered a trade secret. A trade secret is information with commercial value that has not been publicly disclosed by its owner. It may encompass elements such as business methods, strategic plans, customer lists, formulas, or product designs. Many businesses are faced with employees having access to their confidential information and data that they do not want to see being shared with a competitor.

2. Take Precautions during Hiring

When hiring from the competition, a company can fall into the cross hairs of a trade-secret enforcement action. The best practice is to take reasonable measures to respect competitors’ trade secrets such as using orientation training to educate employees about common types of trade secrets in your industry, along with how to use the company’s trade secrets. Require new hires to agree in writing not to mix their jobs with a former employer’s trade secrets.

3. Confidentiality, Non-Compete, and Non-Disclosure Agreements

Given the increased certainty in the law, businesses should consider choosing Texas as the governing law for their agreements as well as modifying their current agreements to reflect the recent changes.  As the ultimate determination of whether information constitutes a trade secret will be case specific, businesses should be able to demonstrate measures taken to safeguard trade secret information and should clearly identify such information as “confidential.”

4. Send Prompt Cease-and-Desist Letters

Your in-house counsel or legal department should send a cease-and-desist letter immediately upon learning that an ex-employee has landed a job with a direct competitor before that competitor has an opportunity to launch a new product or business initiative using any misappropriated trade secrets. The letter should specifically notify the competitor regarding the types of trade secrets the employee may have. A vague cease and desist letter will not put your competitor on notice to stop using your ex-employee’s confidential information, so be as specific as possible.

Conclusion

Businesses that get caught up in trade secret disputes and litigation often have to disclose some aspect of their trade secrets in order to prove or disprove allegations and claims.  This potentially causes much risk in pursuing or defending against trade secret-stealing former employees, competitors, and other thieves.  Now that Texas has enacted the TUTSA, hopefully many of the protections built in the law will help positively address these ongoing concerns and encourage trade secret owners to protect their proprietary information in a proactive way.

Lawyering 101 Part 2: That’s Not What I Bargained For

As a business person, I have gotten a few hints at how to read people thanks to a number of board meetings, sales conferences, etc. However, one thing has become abundantly clear to me in my 5 years of business and corporate experience: the phrase above is secretly lurking in the minds of all parties present at any negotiation.

“That’s Not What I Bargained For” sums up every single transaction…ever. My small business clients are so important to me because they are able to tell me exactly what they want, and usually, when pressed they can tell me exactly how they want “it” done. In these trying economic times, it is absolutely imperative for people to understand the basics of bargaining. For a brief history lesson, I want to tread lightly into the barter system. For a more thorough and entertaining lesson, please see here: http://www.time.com/time/magazine/article/0,9171,1931665,00.html?xid=rss-topstories

My prospective client has a productive small business. He needs counsel and advice on how to manage his money because he’s a young man, and he wants to send his intended to school. He also wants a motorcycle. I immediately told him to forget the motorcycle and rearrange his priorities. In return, he is designing a very unique piece of artwork for my personal collection.

A barter just happened.

How, Moss? Read the above paragraph one more time, and you can find the answer to your question.

He and I have built our relationship on a solid foundation of trust, integrity, and most importantly transparency. Prospective client works in a cash-based business, so when he has money in his pocket, understandably he wants to spend it. I’ve advised him to save more. Simple as that.

These and other values are constantly present at this law firm. It is my open and honest intention to maintain these core values throughout my practice, from my desk, to the legal assistant’s role, to the intern’s expectations of me. Have a productive Tuesday everyone.

Cheers!