As a result, many businesses are finding it difficult to perform their contractual obligations. Consequently, a common but often overlooked contractual clause is in the limelight: the force majeure clause. Contrary to popular belief, the mere existence of a force majeure clause does not invalidate a legal obligation or provide a “get-out-of-jail-free” card. It instead provides parties with a justification to either delay or cease their performance of one or more contractual obligations. In other words, depending upon the specific language of the provision, the contractual obligations may remain in place. Moreover, the force majeure clause allows the nonperforming party to assert an affirmative legal defense if litigation surrounding an alleged breach was to arise.

What Is Force Majeure?

“Force majeure,” French for “superior force,” is defined as “a provision that excuses a failure to perform resulting from ‘Acts of God’ and other circumstances outside the non-performing party’s control.” The mere existence of a force majeure clause does not automatically mean the parties to the contract can use it. The determination as to whether a clause is enforceable in a specific situation is dependent upon state law. Courts in many states have held that the force majeure clause will not excuse or suspend performance unless the clause in question explicitly includes the specific impediments to performance being asserted by a party to the contract. 

Additionally, governors from various states continue to roll back statewide stay-home orders in the hopes of restarting economies that have been crippled by this pandemic.

Business owners navigating this new landscape must figure out how to restart their operations while keeping their staff and customers as healthy as possible. Specific plans of action must be put in place for the safe and effective reopening of businesses. These plans require careful deliberation as well as strong leadership to implement.

If your business is starting on the path to economic recovery and attempting to regain some normalcy, the following are some important objectives to keep in mind.

Maintain a Hygienic Environment. The nature of this global pandemic necessitates maintaining a clean and healthy environment. For brick-and-mortar businesses, this may mean hiring cleaners for the physical premises more often and requiring more stringent disinfecting practices. In addition to increased cleanings, high-traffic common areas should be closed off to the extent possible in order to comply with social distancing measures. For employees who cannot work from home, masks and gloves should be required and provided.

Business attorneys are equipped to assist you in handling a variety of tasks that can protect you from potential legal and business pitfalls, in addition to solving existing legal issues. As important as they are to your team, finding the right business attorney may be challenging if you do not know what to look for. Keeping in mind the following tips can help you find and choose the right business attorney.

1. Assess Your Needs. When you start looking for a business attorney, it is important to consider your specific legal needs. Attorneys experienced in certain niches may be better suited for the ongoing services your business requires. Consider the following types of legal assistance you may need:

Despite the unpredictability that has accompanied this global crisis, it is not too late to implement changes to protect you, your employees, and your business. Here are some tips and strategies to help you navigate these challenges and the ones to come.

1. Participate In and Promote Social Distancing Practices. The Centers for Disease Control and Prevention has recommended that employers “explore establish[ing] policies and practices, such as flexible worksites (e.g., telecommuting) and flexible work hours (e.g., staggered shifts), to increase the physical distance among employees and between employees and others.” At the time of this writing, the President has discouraged gatherings of more than ten individuals. As an employer, creating a safe and healthy environment is critical for your company’s success. Thus, employers must work toward complying with the guidance provided by local and federal leaders. Be sure to maintain the cleanliness and sanitization of any facilities where your business operates. Failure to maintain safe environments could result in loss of the goodwill you have already established within your community.

As the collection of data increases, customers grow more suspicious of the means and methods used to collect and store data. In response to this growing concern, we are seeing increased legislation pertaining to the collection, storage, and distribution of data. Laws like the California Consumer Protection Act continue to be enacted throughout the country, putting pressure on businesses to ensure that their practices comply. Failure to adhere to customer data standards and current legislation can result in a loss of goodwill and hefty fines.

Here are a few ways you can protect the customer data your business collects.

1. Create Clear Systems for Data Collection, Storage, Distribution, and Deletion. The most important thing you can do to protect your customers’ data is to develop clear systems that outline the following steps:

• what data you collect
• how you collect the data
• where the data is stored
• who you share the information with
• how you delete the data when you are no longer using it

One common practice for developing these systems is data mapping. Data mapping identifies how data moves through your business. Remember that “data” is a broad term. It can include everything from customers’ names to their IP addresses and everything in between. Additionally, it is essential to outline policies and procedures for employees who handle customer data on company devices like cell phones and laptops.

Often, business owners try to compensate for shortcomings in their business by bringing in more and more revenue. For many people, however, business closures and quarantines have seemingly eliminated that option.

At the moment, you may be running around like your hair's on fire, trying to find any possible way to bring in more money. You may feel like you are too busy trying to control the present to worry about the future. Take some comfort in the fact that you’re not alone in feeling this. Now more than ever, though, it’s important to remember our “LIFT” principle. Take a breath and consider your legal, insurance, financial, and tax situation, and whether the pillars of LIFT can help you get through this time.

If you need to talk with someone, to brainstorm options about how you can shift from your previous income model to one that will work virtually or in an innovative manner considering current conditions, reach out to us and schedule a call to see how we can help.

If revenue is not an issue, and you are ready to pivot, awesome—do it, and let us know how we can support.

Here are 3 things that you can do as you pivot to create the most stability for you and your team.

With the sheer number of businesses, public spaces, and schools closing, we are all finding ourselves in positions we very likely have not planned for very well.

This is a time unlike any other that we have experienced, and we’re seeing it hit the job market in a big way. Thousands of people have been laid off across the country as businesses close their doors, sometimes voluntarily and sometimes due to government intervention. One poll conducted over March 12th and 13th reported that in 18 percent of US households, someone lost their job. That number is climbing. Unemployment centers and websites are overwhelmed, and experts are projecting that the number of unemployed will expand to 4.6 million before the pandemic is through.

Therefore, while you are undoubtedly very concerned about your business, your employees may be very on edge as well. They’re wondering whether their jobs are at risk, whether they’ll get the virus themselves, whether they’ll be able to take care of kids who have been sent home from school, whether elderly parents are going to be ok, and so on.

We have a few recommendations about how to inspire your team to persevere in the face of all of these anxieties.

If you accept credit or debit card payments, you may not know that you are subject to a set of standards created by the Payment Card Industry (PCI) Security Standards Council. This council, made up of the five payment card brands Visa, MasterCard, American Express, JCB International, and Discover, was created in response to increases in data breaches and fraud in the credit card industry. The PCI Data Security Standards address technical and operational systems to keep customer cardholders safe. The goal of these standards is to protect businesses, customers, banks, and all others engaged in the credit industry.

Many business owners find that collecting payment via credit or debit cards benefits both them and the customer. However, they often do not know about these established data security standards, and thus, fail to comply with them. Below are the twelve PCI Data Security Standards that business owners who accept credit and debit card payments must comply with:

One way to do this is to employ the use of social media influencers. Social media influencers are individuals who have amassed large followings of people on various social media sites who trust their opinions on a variety of matters.

Many social media influencers develop specific niches and select one or two social media platforms for their focus. Due to the nature of popular social media sites such as Instagram, Facebook, Snapchat, YouTube, and Twitter, it is important to consider the legal issues that could arise during the various stages of a relationship. If you are considering engaging a social media influencer, here are three key things you must keep in mind.

1. Have an agreement. Even though social media work feels very informal, entering into an arrangement with an influencer has serious legal implications and should be governed by a written agreement. Your social media influencer agreement should identify the influencer as an independent contractor and describe in detail what each party expects from the relationship. As with other contracts, it is vital to note compensation, essential dates, conflicts of interest, and any potential limitations imposed on the agreement.

2. Protect your intellectual property. A common problem social media influencers run into is copyright and trademark infringement. In an attempt to attract and engage their audiences, some influencers use others' content without obtaining adequate permissions or providing sufficient credit. In such instances, the influencer may be held liable for taking another’s work. Additionally, as parties to an agreement, both sides should identify who owns the copyrights and trademarks for any of the work created in connection with the agreement. For example, if a social media influencer appears in a photo with a product for a brand, the parties should agree as to who owns the copyright and identify the scope of any agreement to license the copyright in question.

The limited liability company (LLC) is one of the most popular business structures because it offers a level of flexibility and legal protection that is attractive to many people who are starting their own businesses.

The following six steps will help you get started if you are interested in forming an LLC.

1. Choose a name. To form an LLC, you must select a business name that complies with state regulations. The name you select cannot be the same as or even too similar to any other LLC’s name; it must be unique to avoid consumer confusion. Next, states often require that the name of your LLC include one of the following at the end: “limited liability company,” “LLC,” or “Limited.” This requirement gives the public notice of your business structure. As simplistic as this step may seem, it is critical to successfully establishing an LLC and being able to take advantage of the legal protections this business structure provides.

2. Select a registered agent. In addition to selecting an appropriate name, you must select a registered agent. A registered agent, also known as a statutory agent, is the party appointed to receive service of process and communication from your state’s secretary of state. Registered agents must provide an address where important correspondence can be sent. Typically, post office boxes are not acceptable places for a registered agent to receive these communications—rather, a physical address is usually required so the agent can receive service of process. When deciding who should serve as the registered agent, keep in mind that the registered agent will typically be the first person to whom the state reaches out if any issues arise with your LLC. As a result, it is important to ensure that your registered agent consistently checks incoming correspondence and relays that information to you as the business owner.

3. File documents. Perhaps the most important step in creating your LLC is filing the required documents. The articles of organization (referred to in some states as the certificate of formation) are usually filed with the secretary of state and include such information as the company’s name, the registered agent’s name and address, and the business’s purpose. This information becomes public record, so be mindful of what information you are comfortable sharing with the world. Keep in mind that there is a fee to file these documents; however, any start-up costs and filing fees you incur are tax-deductible.