Business Law & Growth

If you're the kind of entrepreneur who wants to make a real difference while you're in business and leave behind a body of work that continues to do good for your family, your customers, and the world after you're gone, you've come to the right place.

Business formation is a pivotal time in your new company's lifecycle. Your choice of entity impacts ownership, liability, taxes, profit sharing, ongoing management, eventual sale, and much, much more. Sky Unlimited can help you make the ideal choice.  

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We help our clients leverage their IP, establish a competitive position for the future, and achieve important milestones for growth.  Our chief goal is to identify key areas in which IP protection is the most critical for achieving the company's business objectives, determine the most effective methods of protection, and create strategies to avoid issues with third-party patents.  

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The traditional law business model is flawed. It incentivizes lawyers to spend more time on matters (since they are billing for every hour in six-minute increments), increase conflict (the more conflict there is, the longer the engagement), and constantly focus on the next new client (one off transactions are the norm in most legal practices). Plus, the world has shifted and quite a lot of legal work has become commoditized into online legal drafting software, documents on demand and do-it-yourself lawyering. 

 

Lawyers, not being entrepreneurs, tried to compete and became mere shadows themselves - document drafters, doing one-off transactions for clients, such as incorporating business, and then went on the hunt for the next new client.

 

Not us! We build lifetime relationships with our clients. Because a legal relationship not built upon a lifetime foundation is worthless. Really. If you want a transaction, go online and find a document drafting service. If you want someone great that will help you move your awesome idea into a revenue generating business, take your existing business to the next level of excellence, and prepare you and your business to leave behind a legacy of significance, you've come to the right place.

 

Sky Unlimited Legal Advisory will work with you to grow your business from day one. We support startups and small businesses through their exciting lifecycle, from business formation to sale - and every challenge and opportunity in between.


Entrepreneur Weekly

Articles from the Chief Counsel's desk.  Sign up for our newsletter to receive these in your email!

Security Standards for Businesses That Accept Credit and Debit Cards

According to Total System Services, Inc., 80 percent of the consumers questioned in a 2018 survey responded that they preferred making payments using credit or debit cards.

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:

  1. Install and maintain a firewall configuration to protect cardholder data.
  2. Do not use vendor-supplied defaults for system passwords.
  3. Protect stored cardholder data.
  4. Encrypt transmission of cardholder data across open public networks.
  5. Use and regularly update antivirus software or programs.
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Legal Considerations for Social Media Influencers

As a business owner, you may be considering leveraging social media to enhance your business’s engagement and reach.

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.

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Six Steps for Forming an LLC

One of the first decisions to make when starting a business is what type of business entity to form.

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.

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New Privacy Law in 2020

Data privacy laws requiring businesses to take steps to safeguard customers’ and employees’ personal information and to notify them if a breach occurs have been on the books for years.

Recently, however, a new California privacy law—the California Consumer Privacy Act (CCPA)—was enacted guaranteeing consumers (but not employees--at least for now) the right to know what personal information is being collected and requiring businesses to respond to consumer demands for records showing all the personal information a business has collected about them and any third parties with which it has shared or sold their data, as well as requests to have their data erased and to opt-out of the sale of their personal information.

 

The new law becomes effective on January 1, 2020, and enforcement begins on July 1, 2020. Other states, including Hawaii, Maryland, Massachusetts, Mississippi, New Mexico, and Rhode Island, are following California’s lead and considering similar legislation. Because the California law will affect many small businesses, including some located in other states, and because it is likely that other states will adopt similar laws, it is important for small business owners to be aware of the new law and its potential impact on them.

 

Which Businesses Must Comply?

The CCPA applies to businesses that fall into at least one of the following categories: (1) those that earn $25 million or more in annual revenue; (2) those that buy, receive, or sell the personal data of at least 50,000 consumers or households; or (3) those that obtain at least half of their revenue selling the personal data of California residents. Any business, including those located outside of the state of California, will be subject to the law, as long as it meets one of the three conditions mentioned above. It has been estimated that more than 500,000 U.S. businesses, including many small businesses, will be impacted. The law does not apply when a business’s commercial conduct “takes place wholly outside of California,” i.e., (1) the business collected information while the consumer was outside of California; (2) no part of a sale of the consumer’s personal information occurred in California; or (3) there was no sale of the personal information collected while the consumer was in California.

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Is Your Original Written Content Protected from Theft

Today, the majority of small businesses have their own websites.

If you have included original written content such as blog posts, articles, or FAQs on your website as part of your efforts to draw people to your site and engage with new and existing customers, this is a valuable intellectual property you should take steps to protect.

 

Register your work with the U.S. Copyright Office. Although your written content is under copyright protection from the moment it is created and can be perceived directly or using a device such as a computer or mobile phone, you cannot bring a lawsuit for copyright infringement, i.e., theft or unauthorized use, unless you have registered your work with the U.S. Copyright Office. Registration also makes it easier for you to be successful in a lawsuit against an infringer. If you register your work within five years after it is published, the copyright and the facts contained in the certificate of registration the Copyright Office places in the public record will be presumed to be valid unless the person you are suing for infringement can provide evidence refuting them.

 

If you register your work within three months after you publish it or before an infringement of your work occurs, you will not have to prove the actual damages you have suffered as a result of the infringement in a lawsuit against the infringer. Rather, you will be able to recover an amount set by the federal copyright law (currently $750 to $30,000 per infringement, depending upon the court’s discretion) as well as costs incurred as a result of the lawsuit, including attorneys’ fees.

 

Damages may be difficult, if not impossible, to prove. For example, it is nearly impossible to show how many customers purchased the infringer’s product instead of yours because of the infringement. Thus, the ability to obtain the damages set by statute is crucial to ensuring you are compensated if someone uses your work without your permission. This is an important deterrent to those who may steal your work, as you will be entitled to the statutory amount every time someone views the infringer’s website—which can add up quickly. It also serves as leverage if you request that your content be removed from the infringing website rather than immediately filing a lawsuit.

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Managing the Money Aspect of Your New Business: It’s Easier Than You Think

Coming up with a great idea that can be turned into a prosperous business venture takes a certain talent.

Knowing how to get your great idea financed and properly managed, takes another.  However, it may be easier than you think.

 

What You Need, What You’ve Got, and Where to Get the Rest

If you think you’re in over your head when it comes to the financial aspects of your business, you’re probably not.  Really. In fact, all you need to do is sit down with an experienced business lawyer and determine what money you need, what you’ve got, and where to get the rest.  According to the U.S. Small Business Administration (SBA), the following are some of the financial areas in which to focus on when financing your new business:

 

Estimating Startup Costs.  While the most important startup cost will likely be “seed” money (the funds necessary to bring your idea to life), others include:

  • ongoing costs – such as insurance, inventory, and utilities;
  • one-time costs – such as incorporation fees;
  • essential costs – such as fixed expenses (rent, utilities, administrative, etc.) and variable expenses (inventory, shipping, packaging,  commissions, etc.); and
  • optional costs – such as advertising, signage, or grand opening activities.
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4 Reasons to Consider Changing Your Business Structure

As your small business expands and evolves, it may make sense to consider changing its structure. Many small businesses start out as sole proprietorship or partnerships, with only one or two owners and no employees.

Over time, as your business grows and changes, a more complex business structure may become beneficial. There are several key considerations in deciding whether a change in your business structure may be right for you and your company.

 

1. Protection from personal liability. If your small business has hired employees, taken out loans, or provided products or services to customers, you, as the owner of the business, may be exposed to extensive personal liability for business-related damages in lawsuits against the business unless you have selected a business entity that limits potential liability to business assets. In an LLC, for example, members can only lose the amount they have invested in the LLC, and they are generally not liable for business debts or obligations.

 

2. Changes in ownership. If you have been a sole proprietor, but now want to add one or more business partners, it is beneficial to formalize the arrangement by entering into a partnership or limited liability company (LLC), with a partnership or operating agreement that clearly spells out everyone’s rights and obligations.

 

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Does Your Home-based Business Qualify for the Home Office Deduction?

According to the Small Business Administration, about 50% of all businesses are home-based.

If you are one of the many owners of a home-based small business, you should consider whether your home office meets the IRS requirements for the home office deduction, which is a sometimes overlooked way to reduce taxes.

 

How Do I Qualify for the Home Office Deduction?

Although the home office deduction was eliminated for employees as part of the 2017 tax reform, owners of home-based businesses may still take advantage of this deduction as long as they meet the following requirements set out by the IRS.

 

1. You must use your home office exclusively for the operation of your business. To qualify as exclusive use, your office must be located in a separate room or rooms, or even a section of a room if you have a clear division, such as a partition, to exclude personal activities from that part of your home. If you use the office during the week, but your children use it as a playroom on the weekend, your office will not qualify for the home office deduction. If you occasionally engage in very limited personal activities, e.g., if you make an occasional personal phone call from your office, just as you might if you worked at another location, this is not likely to preclude you from meeting the exclusive use test. 

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Legal Issues to Consider Before Selling Your Product Online

If you are considering expanding your physical business or starting a home-based business, selling your products online is a great way to reach additional customers.

Before you begin to sell products online, there are several legal issues you should be aware of to ensure that your business is compliant with the law and that your interests are protected.

 

Business entity. If you are starting a new business to pursue online sales, it is important to carefully consider the pros and cons of different business structures. A sole proprietorship is uncomplicated and inexpensive, as no separate business entity is formed. In a sole proprietorship, there is no distinction between your business and personal assets, so you are personally responsible for all the business’s debts and liabilities. A partnership is a similarly simple business structure used when two or more people co-own a business. Like a sole proprietorship, you will be personally liable for all the business’s obligations—including those incurred by your partner. A limited liability company (LLC) is a separate business entity that can be formed by a single business owner or multiple owners. It involves the payment of certain fees to the state and a few formalities, such as an annual meeting, and in some states, an annual report. An LLC, however, provides limited liability, meaning, if someone is injured by one of your products, they can only sue the business, and your personal assets will be protected. Other business structures are available as well—these are just some of the most common structures used by small businesses. We can help you evaluate which business structure will best achieve your goals.

 

Trademarks. A trademark is a word, name, symbol, device, or a combination of them used or intended to be used to identify and distinguish the goods and services of a seller or provider, and to indicate the source of a good or service. A trademark is one of your business’s most valuable assets, and if you engage in e-commerce transactions beyond your state’s borders, it is important to register your trademark with the United States Patent and Trademark Office, which enforces your rights as a trademark holder across the entire country, not just the state in which your business is located.

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DIY Investment Management of Retirement Assets

As baby boomers begin to retire, the burden of making management decisions regarding their retirement assets may seem daunting.

This is especially true for those who choose to forego using professional investment advisors and instead self-manage their assets. Despite the challenges, there are benefits to choosing to manage your retirement assets on your own, particularly if you are a business owner with expertise in the area in which you choose to invest your funds. The primary benefits associated with managing your retirement assets are:

  • Exercising greater control over what types of investments you make,
  • Enjoying greater flexibility in organizing these investments, and
  • Avoiding high fees sometimes associated with having a financial advisor.

If you choose to pursue the DIY method, a reasonable option for you to explore is the self-directed Individual Retirement Account (IRA). A self-directed IRA is like other retirement accounts that allow individuals to save for retirement. A self-directed IRA can take the form of any of the more common ROTH, SEP, and traditional IRAs, allowing your investments to enjoy benefits like tax-free growth or specified tax-deferment. The self-directed IRA’s unique attribute relates to the types of investments that are permitted. Unlike standard IRAs, a self-directed IRA extends beyond mutual funds and stocks. With a self-directed IRA, a custodian can also invest in real estate, private company stock, precious metals, and all other investments available by law.

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