BusinessSmartPractice Articles

Many small business owners recall the uncertainty surrounding the European Union’s (EU) implementation of the General Data Protection Regulation (“GDPR”) in May 2018.  Over two years after the EU adopted the GDPR’s language in 2016, businesses finally faced the regulation’s requirements amid a haze of ambiguity.  Most businesses felt woefully unprepared to deal with potentially heavy violations, and many drafted new privacy policies in an attempt to meet the new standard.  The problem: the EU’s lack of clarity and how far it would take these novel regulations. So, what do we know one year later?

On November 27, 2017, Wisconsin enacted Chapter 204 of the Wisconsin Statutes, which allows for the creation of a benefit corporation, not to be confused with a “B-Corp.”  A benefit corporation is a type of corporation that places a high value on both the community and the environment, and puts these values on equal footing with profits. The process of creating a benefit corporation is very similar to creating a general corporation, with a few additional hurdles.

How important is a name? As individuals, a name is synonymous with one’s identity. Is it any different for a company? Small and large companies spend significant time and resources developing the names associated with their goods and services. You would think that a commensurate amount of resources are spent on clearing and protecting a brand name. Unfortunately that is not the case.

One recurring real estate issue involves the question of misrepresentation when a party purchases property, only later to find issues with the structure or condition of that property. The Court of Appeals dealt with two separate cases which outline theories that have been used to recover damages or void the contract.

A fundamental aspect of business law is limited liability.  Business owners want to shield themselves personally from the inherent business risks associated with interacting with the public or selling products and services.  Accordingly, business owners set up legal entities such as corporations or limited liability companies to create a corporate veil between their personal activities and their business activities.

Automatic renewal clauses (“ARC”) seem to find their way into every type of commercial contract imaginable – from the most critical supply agreements to the delivery of towels for the bathroom. So long as both parties are content with this arrangement, an ARC serves to maintain the basic terms of the contract (such as insurance requirements, payment terms, and indemnification) without the need for renegotiation.  But what if the buyer is no longer content with the status quo and wants to move to another vendor? 
 

The duty of good faith and fair dealing, a long-recognized legal construct compelling parties to deal with one another fairly, acts as a baseline operating procedure to help ensure negotiating parties contract with a sense of honesty. While seemingly straightforward, the 7th Circuit recently narrowed good faith's protections.

Regardless of the reasons that might attract or bring a someone to serve as a director to the board, once selected, every director is charged with certain fiduciary duties to the organization – and a failure to discharge any one of these duties can expose a director to personal liability.  

“Twas the night before Christmas, and all through the house, not a creature was stirring, not even a mouse.  The stockings were hung by the chimney with care, in hopes that St. Nicholas soon would be there.” If you are in business, St. Nicholas is not the person you need to be expecting at year-end!

The operating agreement for an LLC is the statutorily recognized contract between the owners of an LLC which serves as the legal road map for how the Members will manage and operate the business. There are 8 key provisions Members of an LLC should address in an Operating Agreement.

Business deals can move at the speed of light. It is easy for business owners to focus so intently on the deal that they overlook legal nuances that bite them in the pocketbook later.  A recent matter in our office – a truly cautionary tale – emphasized that fact.

Among the many issues facing small business owners, estate planning is one that often falls last on the list.  This should not be the case.  A well thought out estate plan and buy/sell agreement can help mitigate business disputes, retain the value of the business and provide a proper path for a business to continue after an owner’s death or incapacity.
 

The majority of companies today rely in some fashion on their online presence.  Whether it’s a restaurant seeking positive reviews or a retailer offering its goods for purchase, the modern business interacts with customers over the Internet on a daily basis.  While most business owners understand how best to engage with their customers, not all are familiar with how their company’s website projects to those browsing online.  As demands for data protection and online transparency continue to increase, it is important to realize how a website can impact a business’s legal liabilities or its relationship with customers.  An easy step in the right direction is an updated terms of service or website privacy policy.

 

If you or your company work within the construction industry, whether as a general contractor or subcontractor, and whether in the residential or commercial building market, chances are you already know the Golden Rule – “Whoever has the gold makes the rules.”  The project owner dictates the rules to the general contractor who, in turn, dictates those (and perhaps more) rules to its subcontractors.  Whether these rules are found in lengthy written contracts or subcontracts or nestled in the fine print on the back side of a purchase order, they are routinely presented as a “take it or leave it” proposition.  Those without the gold may then be left with the choice of declining an otherwise good project or accepting the work on the proposed terms and running the risk that they may later regret doing so. 
 

Historically low interest rates, aggressive lending and a positive economic outlook have continued to drive strong merger and acquisition (“M&A”) activity in 2018, with brisk deal activity expected to continue for the next 12 months according to Wall Street and public accounting firms who track M&A trends. If you are considering taking your business to market, there are a few key steps you should take in order to maximize your sale value.  
 

There is a growing use of vacation rentals by owner (VRBO) by property owners nationwide.  Many of us know people who have used this concept for their own property or have used the VRBO website to obtain a vacation spot or accommodation during Packer weekends. However, before using your property as a VRBO, there are important factors to consider. 
 

Here is the all-too-common scenario:  Buyer issued the Request for Quotation with standard Terms and Conditions (“T&C”).  Seller provides quotation with it's own standard T&C. The parties negotiate the high points. Buyer issues a Purchase Order. Seller sends its Order Acknowledgement. Seller ships the goods and Buyer accepts shipment. Something falls apart and dispute arises (defective product, late delivery, lack of payment, etc.) Despite initial efforts, the dispute cannot be resolved. Now what?!  Do you have a contract?  What are the terms of the contract?  Whose T&C is in control?

Many people are involved with non-profit entities, whether they donate to them, sit on their boards, or simply use their services. Non-profit entities are unique business entities at both the state and federal levels which are fraught with compliance issues that can jeopardize their non-profit status and liability protection.    

The demise of one company creates financial opportunity for another. When one company jettisons a failing venture, another can profit through the acquisition of equipment and raw inventory at liquidation prices. The most common vehicle to accomplish such a transfer is an Asset Purchase Agreement (“APA”), which typically excludes from the transfer all of the seller’s liabilities. This often leaves the seller with inadequate cash (the sale proceeds) to satisfy the seller’s debts and, consequently, a host of angry creditors scrambling for payment. 
 

E-commerce can be a boon for retailers – large and small – looking to expand their sales footprint beyond their brick and mortar locations.  However, following the United States Supreme Court’s June 21 ruling in South Dakota v. Wayfair, Inc., navigating e-commerce just became more complicated. 
 

The Wisconsin Fair Dealership Law (“WFDL”) governs the relationship between manufacturers and suppliers (“Grantors”) and their distributors, independent sales representatives, and dealers (“Dealers”).  The WFDL creates legal standards and procedures that must be followed by Grantors prior to terminating a protected Dealer or changing the competitive circumstances of dealership agreements.  Failure to comply with WFDL carries significant consequences.
 

Over the past few years, data security has become a hot button issue in the business community.  From financial institutions (see: Wells Fargo) to brick and mortar retail stores (see: Target), numerous recognizable businesses have experienced online security breaches leading to compromised customer information.  This growing trend of security concerns of customer data has resulted in new government regulation in hopes of curtailing data impropriety.
 

On April 16, Governor Scott Walker signed into law The Landlord’s Omnibus Bill (the “Bill”).  The Bill, which significantly changes Wisconsin’s landlord-tenant law, is just one of the many legislative changes affecting the real estate industry made during the 2017-18 legislative session.  Many of the Bill's provisions, although not all, make the ownership of residential rental property less onerous.  This article is intended to be a high-level discussion of a few of the more significant changes under the Bill.
 

You can ask any employer what agency they fear the most and OSHA tends to be at the top of the list. And yet many employers do not understand what their obligations are under the Occupational Safety and Health Act (“OSH Act”) and, therefore, are not prepared when OSHA shows up at their door. The Occupational Safety and Health Administration (“OSHA”) is authorized to enforce the safety and health laws promulgated pursuant to the OSH Act.

It’s five o’clock Friday afternoon and your top sales person, Sally Jones, marches into your office to announce that she is resigning and, starting Monday, she is going to work for the competition.  To add insult to injury, she informs you that she convinced two of your other three sales people to follow her—leaving your sales force nearly gutted and the competition stacked with successful sales people having intimate knowledge of your business and, worse yet, your customers.
 

Most of us have resorted to checking out online reviews of companies when conducting our due diligence prior to engaging a company for their services or buying its products.  A wealth of information is available online, and if it is online, it must be true, right?  WRONG!  Businesses are more susceptible than ever to negative, misleading and false reviews with the surge in popularity of social media.  It is important for business owners to remain proactive in monitoring and, when necessary, correcting or defending their online reputation from defamatory reviews.
 

How will the trade tariffs on China affect you and your business?  If you provide goods or services to others, the proposed tariffs very likely will affect you.  So what should you do? 
 

Today’s real estate markets have certainly heated up in recent months. It is a seller’s market on the used residential side and a buyer’s market with substantial new construction being outpaced by the market of buyers. Even though it seems like the commercial market is flush with opportunities, we are seeing an uptick in new construction, sales and leasing.
 

For businesses that require customized equipment, purchasing capital improvements can create a substantial liability.  So, too, for vendors that manufacture the customized equipment – often investing significant manufacturing costs over a production period that can last several months.  Vendors who cannot (or who will not) agree to carry the manufacturing costs will demand prepayment for its work and materials.  What is the legal risk of prepayment?
 

In 2015 Congress enacted a new partnership tax audit regime, which became effective for all tax years beginning after December 31, 2017.  The primary difference between the old rules and the new rules is that the IRS will audit a partnership on the entity level versus auditing each individual partner.  Accordingly, the new rules affect the individual tax liability of partners, the responsibility of each partner during and after an audit and how the IRS conducts a partnership audit in general. 
 

Until recently, Wisconsin was one of 18 states that prohibited on‑line shareholder meetings.  The Wisconsin Business Corporation law was modified November 27, 2017 to permit Wisconsin corporations to hold virtual shareholder meetings.  Previously, Wisconsin law required corporations to hold in-person shareholder meetings, although the law permitted virtual Board of Director meetings.  The new law doesn’t mandate that corporations conduct virtual meetings; it simply gives companies an option that previously wasn’t available.