New Year Legal Check-List: 2020
NEW YEAR THOUGHTS:
We would like to express our thanks to our many clients, colleagues and friends who helped to make 2019 a terrific year. We would also like to extend our best wishes to our readers for a happy, healthy & prosperous 2020! We do what we do because we like it and because we want to make a difference. But we could not do it without all of you.
NEW YEAR LEGAL CHECK-UP:
With the new year upon us, the following is a list of ten suggestions for starting it off right by putting some of your professional and business affairs in order. Not all suggestions may be applicable to all readers, but they are designed to provide a framework for planning ahead. Make your own additions to the list as they come to mind.
1. CONDUCT AN INTELLECTUAL PROPERTY AUDIT: The Sarbanes-Oxley Act requires all publicly traded companies to identify, value, and protect their copyrights, patents, trademarks, trade secrets and other intellectual property. Corporate officers can be held civilly and criminally liable for the failure to protect the company’s intellectual property. We believe this kind of audit represents a “best practice” for all businesses – whether publicly traded or not.
2. REVIEW YOUR COPYRIGHTS: Have you reviewed all copyrightable material (websites, CDs, DVDs, screenplays, computer programs, manuals, advertising brochures, etc.) to see if you’ve placed a proper copyright notice on each and if you’ve registered the materials with the Copyright Office in Washington, D.C.?
3. REVIEW YOUR TRADEMARKS & DOMAIN NAMES: Have you reviewed all names, words, and logos used to describe your business to see if you’re using trademark and service mark designators on your website, letterhead, and advertising, etc.? Check to make sure that any words or names you are using are not descriptive or generic; if they are, seriously consider changing them. Also consider trademark registration to protect your marks and logos and additional domain name registrations to prevent cyber-squatting. If you are conducting business under a fictitious name, be sure you have filed and published a fictitious name statement and that it’s current.
4. DEVELOP TRADE SECRETS AGREEMENTS: Do you have a compilation of data (a customer list, sources of supply, method of doing business) or any secret processes that are not known to the general public and give you a competitive advantage? If so, you may have a trade secret that can be protected by a trade secret policy that includes specific written understandings with your employees and independent contractors.
5. MEET WITH YOUR ACCOUNTANT: Have you scheduled an appointment to meet with your accountant to start the new year right? By planning ahead you may be able to reduce taxes and to forecast your income and expenses. Your accountant may be able to suggest ways to prepay certain expenses and to defer income.
6. PLAN AHEAD FOR 2020: There are two universal keys to success in the business world: adequate planning and adequate capitalization. Take time to write down where you’d like to be one year from now and develop a written game plan to get there; be sure you’ve made some reasonable estimates as to what it will cost you to complete your plan and where the money will come from to do so.
7. REVIEW ALL CONTRACTS: Have you taken a look recently at all agreements to which either require you to do something for someone else or which obligate someone else to you? Does the agreement need to be modified in any way to reflect changed circumstances? If so, contact the other side to see if you can work things out. Try to get important agreements written down if they are not already reduced to writing. Do you operate a website for your business and have you made sure that you have legally enforceable Terms and Conditions of use and a clear Privacy Policy in place?
8. CHECK YOUR PARTNERSHIP AGREEMENT: Are you are conducting business as a partnership? If so, this is a good time to review your agreement; see if there have been any changes since the last agreement was written up that need to be reflected in writing. If you don’t have your agreement in writing, use this as an opportunity to do so; oral agreements are sometimes valid, but they’re difficult to enforce.
9. CHECK YOUR CORPORATE DOCUMENTS: Have you checked to see if your corporate records are up to date and if any recent changes need to be reflected on the books of the corporation? If you’ve been considering incorporating or forming a LLC, use this as an opportunity to talk with your accountant and attorney about the pros and cons of doing so.
10. REVIEW AGREEMENTS WITH EMPLOYEES AND INDEPENDENT CONTRACTORS: If you have employees or use independent contractors, is your basic understanding with them reduced to writing?; if not, you can develop standards forms for this purpose. Also double-check to see if your “independent contractors” really are; the general rule now is that the IRS, the California Employment Development Department and the courts are going to treat more “independent contractors” as employees and to require withholdings, etc.
There is quite a bit more that can be said about all of this, but these 10 steps are a great start. Please call (858.793.8090) or write, of course, if you have any questions or suggested additions to this list!