When starting a new business, one of the most important decisions that entrepreneurs must make is choosing the type of business entity under which they will operate. Many new businesses form as limited liability companies, or LLCs, as they combine the limited liability offered by corporations with the flexibility and favorable tax treatment of partnerships. The document that governs how an LLC operates is known as its “operating agreement.” While an LLC’s operating agreement does not need to be filed with the Secretary of State, it is still required that every LLC have one and that the document clearly lays out the rights and responsibilities of the company’s members.


It is highly advisable for anyone in the process of forming an LLC to consult with an attorney to ensure their operating agreement accurately represents the intent of the parties it affects and it contains the necessary provisions. Below is some information about a few of the basic issues any LLC’s operating agreement should address.

The LLC’s Ownership Structure – One of the most important issues that should be addressed in an operating agreement is the ownership of the company. Ownership can be determined either by allocating percentages or by issuing “units,” which are similar to stocks issued by a corporation. In the absence of provisions to the contrary, California’s default LLC rules will apply, which may or may not reflect the intent of the people forming the LLC.

The term “intellectual property,” or “IP,” refers to intangible property that is the creation of a person’s mind. IP is given certain aspects of property rights by law. One way of looking at IP, is that it is the property right one possesses in information. McCarthy’s Encyclopedia of Intellectual Property defines “intellectual property as “an all-encompassing term used to designate as a group all of the following fields of law: patent, trademark, unfair competition, copyright, trade secret, moral rights, and the right of publicity.” For example, moral rights, also called the right of attribution, require that I attribute the quoted language to its source. Otherwise, I would not only be guilty of plagiarism, but also copyright infringement.


While intangible, intellectual property can be extremely valuable and in some cases may be a company’s sole asset. Some examples of the types of intellectual property that often has significant value include software code, techniques of manufacture, client lists, artistic works, works of authorship and formulas. For example, the Google search-engine algorithm and the recipe for Coca-Cola are each valuable forms of IP, the former being protected by a patent and the latter as a trade secret.

Intellectual property can be legally protected in several ways, including the use of legal instruments such as patents, copyrights, or trademarks. This area of law can be extremely complicated, so it is important for anyone seeking to protect their IP to discuss their options with an experienced attorney.

Whether purchasing or leasing commercial real estate, where you decide to locate your business is critical. Some businesses remain in the same location for decades, even though major changes in ownership or operations.

Some businesses are forced to move because they fall behind on rent, outgrow the space, simply close their doors, or other similar reasons. Other businesses, however, may have their location threatened for reasons that are completely beyond their control. In such situations, an owner should contact an experienced commercial real estate and business attorney to determine their options and rights as soon as possible.

Eminent domain can affect businesses

Last year, California legislators passed the Healthy Workplace Healthy Family Act of 2014, which provided the opportunity to accrue paid time off for sick leave to almost every California employee. The law allows qualifying employees who have worked at least 30 days to begin accrual and to use that sick time after 90 days of employment. The law covers temporary, part-time, and full-time employees with very few exceptions. Such exceptions only apply to certain employees with collective bargaining agreements, some air carrier employees, and in-home providers of supportive services.

Because the new law so widely affects California employers, all business owners should thoroughly familiarize themselves with it to avoid legal disputes or sanctions for noncompliance.


Basic requirements for employer compliance

To make your business distinguishable, it’s important to focus on choosing and trademarking a business name early on; this is essential to securing ownership of your new company. Here are 3 steps to choosing the name of your business and protecting it under trademark law.


3 Steps for Trademarking a Business Name

  1. Pick a Name Category

Even seasoned business professionals can benefit from having legal counsel on their side when making a purchasing decision. Here are 3 advantages of hiring an experienced lawyer to help when purchasing real estate commercially.


3 Advantages of Hiring a Lawyer for a Real Estate Purchase

1. Determine State-Specific Laws

Some of the world’s most successful companies started as partnerships. Microsoft, Apple, McDonald’s, Warner Bros., Ben & Jerry’s, and Google are only some examples of now corporate giants that began with only two people working together to start a business. Unfortunately, many partnerships do not work as well, often because of disputes between the partners. Many of these disputes may be avoided by simply drafting and signing a valid and appropriate partnership agreement at the beginning of operations. An experienced business attorney can help you identify which issues need to be addressed in your particular partnership arrangement.


The law does not require an agreement

Anytime two or more people begin business operations, they automatically have a partnership. Much like a sole proprietorship, a partnership requires no filings with the Secretary of State or other formalities in order to establish the business entity. If you do not have a partnership agreement and a dispute arises, you will have little control over how the dispute is resolved. In cases without an agreement in place, California law will govern the situation and not the wishes of the respective partners, which can be problematic in many cases. For example, California law allows each partner an equal say in the management of the business, as well as an equal share in profits. This would not be fair if one partner contributed substantially more time, effort, or money to the business than the other. Therefore, not only will a partnership agreement help to avoid misunderstandings in the first place, but may also lead to a fairer resolution of any legal issues.

At the end of June 2015, the Supreme Court of the United States (SCOTUS) published several opinions, including the highly-publicized decision that ruled all bans on same-sex marriage unconstitutional. While most of America was focused on the equal rights decision, there were two additional decisions regarding the use and protections of patents and copyrights that may be highly important to business owners and entrepreneurs.


Kimble v. Marvel Enterprises

Owners of patents may license their invention to others to use, to sell, to manufacture with, or to advertise for sale. In return for the license, the patent owner collects royalties. Some patent holders have long-lasting royalty agreements with companies that depend upon the technology to operate.

The robust expansion of the Internet and increased accessibility of Internet-enabled devices has provided entrepreneurs and existing businesses an easy and relatively inexpensive way to reach millions of people. One only needs to look the meteoric rise of companies like Amazon and Netflix to see the growth potential of an Internet-based business.  In fact, many types of businesses which once were required to have a bricks-and-mortar presence can now operate solely online, significantly cutting their overhead costs. One only needs to look at the rise of companies like Amazon and Netflix to see the growth potential of an Internet-based business.

Because of this potential, more and more people are choosing to start their own online business selling goods or services to people around the country and even the world. While the Internet has removed many of the barriers of entry that have traditionally kept many people from starting a business, it has also created significant and new legal issues that business owners must consider before building a website and selling their product. It is for this reason that anyone considering starting an online business should discuss their situation with an experienced lawyer. Some of the more important issues related to starting an online business are discussed below.

Type of business entity

For many new and existing businesses, their intellectual property (IP) may be by far their most valuable asset. Intellectual property can include literary works, software code, processes, formulas, manufacturing specifications, marketing plans, or designs.  In some cases, a company’s ideas may literally be their only asset – consider, for example, an individual with the idea for the next smartphone app that will be downloaded by hundreds of millions of people. She, and any company that she forms to develop that app, have the asset of that idea before even a single line of code is written. Of course, it is only natural to want to protect that asset from misappropriation by other parties. In many cases, the best way to achieve this goal is to use a non-disclosure agreement (NDA) with any other parties with whom the idea may be discussed.

What is a Non-Disclosure Agreement?

Fundamentally, NDA agreements are contracts between two or more parties that outline information that they wish to share with each other but not with other parties. There are two main types of NDA agreements, which are:

  • One-Way NDAs – Also known as a “unilateral non-disclosure agreement,” this type of NDA restricts one party from disclosing information to another third party.
  • Mutual NDAs – This type of non-disclosure agreement, which may also be called a “bilateral non-disclosure agreement,” is often used when two parties need to disclose confidential information to each other in order to be able to work together. They restrict both parties from disclosing certain information to others.

Sticking with our app-developing entrepreneur, let us further imagine that she has a degree in marketing and does not know the first thing about developing a smartphone app. In order to bring this app to market, then, she must hire a company or partner up with someone else who has that expertise. In order to do so, however, she needs to disclose certain information about the app that would potentially allow another party to take the idea and develop it themselves. In these cases, a NDA agreement can operate to prohibit any party with whom she discusses her idea from disclosing its details to others. NDAs can be used to protect a variety of information that may be valuable to your business. Among the most common include:

·         Manufacturing processes

·         Business strategies

·         Software

·         Machines and devices

·         Designs

·         Formula

·         Business models

·         Sales contacts

·         Recipes

·         Artistic or literary works

 

Contact a Silicon Valley business lawyer today to discuss your legal matter

Businesses that are seeking to protect their intellectual property from misappropriation should discuss their circumstances with an lawyer as soon as possible. Call the Structure Law Group today at (408) 441-7500 to schedule a consultation with one of our San Jose business lawyers.