General Counsel in California

Is your company set up properly?

An experienced business law attorney can advise you on how to properly structure your company.  Depending on your choice of entity, there are different legal documents which may be needed, including partnership agreements, shareholder agreements, articles of organization, LLC operating agreements, corporate bylaws, initial resolutions and other paperwork.  These documents set forth the roles, rights and obligations of those involved in the business.  They also establish rules and procedures for operating the business, including policies related to decision-making, corporate governance, dispute resolution and other matters.  Well-drafted agreements are crucial to preventing conflicts or minimizing their effect on the business.  However, companies also must ensure they comply with their own rules consistently in order to avoid potential problems.  Where questions arise, general counsel can provide appropriate guidance.

Are your business contracts protecting your interests? 

Contracts should always be in writing to avoid misunderstandings between the parties and to ensure that the terms can be fully enforced.  The types of contracts that may be needed by a business vary based on the industry, size and other factors.  Examples of common agreements include:

Commercial Leases

Businesses may lease building space as well as equipment, both of which can be a significant expense.  Leases set terms and conditions for a given piece of property, including monthly payments, maintenance agreements, deposits, the length of the lease and other items.  Since these contracts generally last for years, it is essential to negotiate favorable terms.  Tenants or lessees sometimes assume that leases are standard documents that cannot be changed, but that is not true in many instances.  In fact, you may be able to substantially reduce your costs and gain more flexibility in your use of the space.

Service/Vendor Agreements

Service agreements are used when one party (the service provider or vendor) provides a service to another for monetary compensation.  The agreement typically has two parts: the statement of work and the terms and conditions.  The statement of work may outline monetary compensation, timelines for payment, types of services provided, timeframes to render the services and other provisions.  The terms and conditions commonly provide for the ancillary stipulations of the parties, such as intellectual property ownership, non-disclosure, non-solicitation, indemnification, choice of law and other provisions.  These provisions are used to safeguard the company’s confidential information and address dispute resolution matters.

Licensing Agreements

A licensing agreement is a contract between an owner of rights (“licensor”) and someone who wants permission to use those rights (“licensee”) for certain designated purposes.  When licensing intellectual property, the key issues include the scope of rights granted, payment structure, representations and warranties and indemnification.  In the case of a Software as a Service (SaaS) agreement, there are additional concerns, such as performance obligations, ownership of intellectual property and limitations on liability.  Regardless of which side you are on, an attorney should always review the agreement to safeguard your interests.

Privacy Policies and Terms of Service

Many businesses, especially those in e-commerce, are just starting to feel comfortable adapting to Europe’s GDPR (General Data Protection Regulation), but this is not the only privacy law that businesses should consider.  In California especially, your business’s data security and privacy policy must comply with the California Consumer Privacy Act (CCPA), which mandates notice, opt-out and other privacy considerations for businesses that meet certain standards set forth by the state government.  California is setting a precedent as one of only a handful of U.S. states to pass any widespread privacy regulations, in a country that currently has no omnibus federal privacy law.  If your business is in California or provides goods or services to California residents, and meets additional revenue requirements or specifically deals in buying and selling personal information, the CCPA may apply.  Our California attorneys can determine whether your business is subject to the CCPA and how to comply with it.

Are you up to date on employment law issues?

Employment laws are complex, so companies need to be proactive about establishing rules and procedures governing the employment relationship.  Generally, California is an at-will employment state, and its employment laws tend to favor employees.  For instance, California employers are required to provide a meal break for some employees.  Employment documents, like these commonly used examples below, should be prepared by an attorney.

• Employee Handbook. An employee handbook is a document that outlines a company’s policies, permitted and prohibited behavior, and a description of the company’s mission.  It outlines the expectations of the employer and communicates the rights and obligations of both the employer and employee.
• Offer Letter and Employment Agreement. An offer letter and employment agreement memorialize a new employee’s job duties, compensation, benefits and other provisions of employment, which help minimize misunderstandings and future problems.
• Separation or Severance Agreement. A separation or severance agreement typically provides a departing employee with a benefit package in exchange for the employee’s waiver of their right to sue the company.

Do you need to raise capital?

Raising capital is a common concern for most companies.  There are different financing options available, depending on the growth stage of the company, with unique legal and financial requirements for each.  General counsel can assist with meeting investors’ due diligence requirements and preparing necessary legal documents, such as a Term Sheet, Stock Purchase Agreement, Investor Rights Agreement, Right of First Refusal and Co-Sale Agreement, Voting Agreement and Schedule of Exceptions.  An attorney can also ensure compliance with federal and California state securities laws.

Have you protected your intellectual property? 

Most companies have some sort of intellectual property, such as a trademark or copyright.  While both may be protected under the common law, best practice is to seek registration and the protection of U.S. intellectual property laws.  Federal trademark registration puts others on notice of the company’s mark so they do not use a similar one, and allows the trademark owner to sue an infringer in federal court for damages.  Similarly, copyright registration also gives the owner the right to sue for infringement of the work and obtain statutory damages.  In California, you may be awarded more for infringement than you would in New York.  Experienced counsel can take appropriate steps to secure and protect your intellectual property rights and maximize its value for the business.

How can you effectively resolve business disputes?

When conflicts arise in business, most people think of litigation as the solution.  However, there are alternative methods of dispute resolution that can be faster and more cost-effective.  In mediation, a neutral third party facilitates discussion and resolution between the parties, but does not decide the case or serve as a judge.  In arbitration, a neutral party acts as a private judge and renders a decision in the matter.  However, whether the award is legally binding depends on the parties’ underlying agreement.  Where it is legally binding, the courts can enforce the arbitration award.

Every business can benefit from having general counsel to help it avoid potential risks, comply with laws, and ultimately, grow.  If you are the owner of a company that does not have an internal legal department, you may want to consider hiring a California law firm to provide the support and protection you need.

Romano Law can provide general counsel services in New York, California and Florida.

Photo by Sean Pollock on Unsplash