Category Archives: Legal & Regulatory

How Do You Handle a Side Project? Two Considerations

Situation: An early principal of a company has done a lot of work on a product that no longer fits the company’s business strategy and focus. The CEO wants to reward this individual for past work. An arrangement could include equity plus a big chunk of whatever this individual can make marketing the product that he created. What is the best way to handle this side project?

Advice from the CEOs:

  • There may be benefits to working with this individual as proposed. Letting the individual play in his own sub-market gives you an additional customer and may lead to interesting but yet unknown opportunities. Take care that this does not impact critical timelines for the company’s principal strategy.
  • A set of guidelines for this arrangement may include:

o    No grant of additional stock in the company – the opportunity to pursue the project should be sufficient incentive.

o    Keep this side project as company property.

o    Give the individual a sizable chunk of any revenue that he can gain from the product.

o    Task the individual to manage and solve technical challenges so that this does not impact company priorities.

o    Retain control of timelines and quality sign-off so that this project does not conflict with your higher priorities.

o    Give the individual sufficient support so that he is more likely to succeed.

  • Are there concerns regarding brand risk?

o    Draft an agreement to allow this project to operate cleanly and treat the principal an early small customer. Define the requirements of the project, release timelines, and branding options so that they do not interfere with the company’s larger goals.

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How Do You Respond to a Breach in Policy? Five Suggestions

Situation: A company recently terminated their lowest performing sales representative. Prior to surrendering the company computer, the employee sent a goodbye email blast to the company and customer email lists. This action was a breach of company confidentiality policy. How do you respond to a breach in company policy?

Advice from the CEOs:

  • Have the human resources manager send out a company-wide message specifying how this misconduct violated company policy and the potential impact on the company. In the same message, re-emphasize company confidentiality policy and the importance of complying with policy. Follow-up with conversations between managers and employees about the importance of company confidentiality.
  • Consider having all employees sign a new company confidentiality agreement every 6 months. This should be accompanied by explanations of company policy and conversations to reinforce the importance of complying with policy.
  • As a follow-up to this situation, be proactive by informing affected clients that this individual has left the company and let clients know who their new sales representative is.
  • Be aware in your internal communications that this action may have been an honest mistake, not intended to harm the company. If this is the case and your internal response is too strong, this may have a negative impact on other employees.
  • If the individual goes to work for a competitor, send the new employer a copy of the termination agreement signed by the employee and put them on notice that you will prosecute any violations of prior confidentiality agreements.

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How Can a Lawyer Help You Meet Your Goals? Five Ways

A small company has need for legal advice, but is unsure how to properly utilize a lawyer. Legal costs have gone up over the last decade, so expense is one concern. Another is a desire to understand how to form an effective relationship with a lawyer or law firm, and how to effectively manage billable hours. Bottom line, how can a lawyer help you meet your business goals?

Advice from the CEOs:

  • First, seek the counsel of a firm that specializes in small businesses. Just as you would seek a specialist physician to treat a serious medical condition, SMBs are best served by corporate lawyers who understand how they are different from large corporations and who can advise them at a rate and under an arrangement that fits their financial situation.
  • Schedule regular “off the clock” lunches and conversations with your lawyer. The ideal lawyer for smaller companies serves as an “outside counsel.” Your outside counsel is essentially your legal quarterback and should be willing to meet with you off the clock to discuss general business needs. Of course, as a courtesy to your lawyer, if your conversation starts getting into areas where you are receiving legal advice you shouldn’t expect free advice.
  • Know what to ask your lawyer versus what to ask your auditor and tax specialist. Each has a separate and distinct domain.
  • Trust your lawyer – or find a new lawyer. The best legal relationship is when your lawyer is treated as a member of your team. Sharing the business context aids your lawyer in advising you.
  • There is no need to overspend on lawyers, but you do need to assure that you spend for what you need. A good relationship with your lawyer can help you to walk the line where you are spending appropriately.
  • Special thanks to Deb Ludwig of DJL Corporate Law for her contribution to this discussion.

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How Do You Optimize Supply Agreements? Seven Guidelines

Situation: A company wants to add off-shore manufactures to its supply chain. This is a new experience and the CEO seeks guidance on how to negotiate supply agreements. They want win-win agreements with their new suppliers. How do you optimize supply agreements?

Advice from the CEOs:

  • No supplier relationship is risk-free, especially if you are a small company. Be sure to cover ownership of new IP developed during the relationship. For example, assure that the supplier adds no new developments without communicating these to you in writing. You may want to fund new developments selectively to assure protection of your IP. This is essential if you need to switch or add suppliers rapidly to maintain adequate supply.
  • A service agreement is not always about cost. It’s about deliverables, and quid pro quo is important.
  • Manage your key supplier relationships as diligently as you manage your key client relationships. They are equally critical.
  • In a contract negotiation between supplier and OEM or customer, both sides need to clarify customer needs and supplier capabilities. The greater the transparency on expectations, deliverables, and contingencies, the better the agreement and contract.
  • In negotiating an agreement with a Chinese company, make the enforcement jurisdiction either Hong Kong or Macao. Why? So that courts can enforce terms of the agreement on the Chinese party in the case of a dispute.
  • Post-termination obligations are a key to any negotiation – you want this clarified in advance.
  • Contracts serve two purposes: a legal tool, and a way to drive behavior. They provide an opportunity to assure that both parties are on the same page and, under the best circumstances, serve as process documents.

Special thanks to Bijan Dastmalchi of Symphony Consulting for his contribution to this discussion.

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Should You Put Privacy Statements on a Web Site? Five Thoughts

Situation: An early stage software-as-a-service (SAAS) company notes that a number of companies have privacy statements on their web sites. Is this something that is common, and should they consider their own privacy statement on their site?

Advice from the CEOs:

  • If your services include the collection of users’ personally identifiable information many users will want to know that the information that they put on the site is secure. Get legal advice on the handling and storage of personally identifiable information. You may want to qualify for TRUSTe or a similar service.
  • Others will be competing in your space, or close to it. Look at these companies’ sites for what type of privacy statement they use.
  • Research how important this is to your target audience. Get assistance from someone who is good at drafting surveys. Hire a summer intern or local college student to conduct the survey. This is a quick way to answer your question.
  • Determine your business policy regarding privacy. If policy considerations dictate that you should have a statement, then find a model statement that you like and use this. Model a statement after one that appeals to you from another company. Make sure that you cover anything that you feel is important, and retain any prerogatives that you feel are important.
  • Create a link to a separate page that contains a model privacy statement. Count the number of clicks that it receives. You may find that nobody clicks on this.

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How Do You Identify New Customers? Four Alternatives

Situation: A company wants to expand its markets and customer base. Currently their business is dominated by a single customer. What best practices have you developed for identifying new customers and markets?

  • The key to getting new customers is to devote dedicated time to this task.
    • If your company is populated by engineer or software specialists, consider hiring a sales professional – a commission based hunter sales person who has experience landing big accounts in markets similar to yours. You may pay this person a good percentage of sales for brining in this business, but gaining the additional business can be worth it.
  • Much depends upon your relationship with your large customer. When a single client has rights over or ownership of the technology of the company but is not pursuing broader markets that the company is interested in, is it feasible to negotiate rights to pursue this business?
    • The larger client will pursue their own interests, not those of the smaller vendor. Perhaps a win-win deal can be worked out, but it may be difficult – particularly if the larger client is concerned that use of the technology in other markets could affect its interests in their primary markets.
    • Be very careful in this situation. The easiest tactic for the larger company to defend itself from a perceived threat is to sue and simply bury the smaller vendor through legal expenses. While the smaller company may be legally within its rights, deep pockets can beat shallow pockets through attrition.
  • In the case that the larger client simply continues to buy all capacity of the smaller company, an alternative is to raise rates, or perhaps to just say no.
  • Consider recreating the opportunity – create your own adjunct proprietary product with your own software or design talent and expand your horizons with this product.
    • Be aware, the large client can still sue if there is any appearance that your proprietary product impinges on their product rights. As in the case above, the larger company has the resources to bury the smaller company in legal expenses regardless of who is legally correct.

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How Do You Respond to a Regulatory Wild Card? Seven Suggestions

Situation: A company that has been in business for several generations has been approached by a government official with an unexpected regulatory requirement and a stringent timeline for compliance. This was completely unexpected and it will be disruptive to comply. How do you respond to a regulatory wild card?

  • Approach the agency and negotiate an extension of the deadline, or a series of steps that will bring you into compliance but under conditions so that compliance does not disrupt your business and workload.
  • Dig to determine the ultimate reason behind this development. Is it a neighborhood evolution issue where new neighbors want you or your business out of the way? If so, is there a win-win alternative that gives you a new or better location in exchange for moving.
  • Seek legal assistance – local lawyers may be knowledgeable of the officials involved or their superiors, and will know the language to use to ask for the leeway that you require.
  • Circle the problem from every angle – look for other city contacts that can assist.
  • Trade a tax concession for compliance – particularly if the issue is a long-standing situation that has just now been brought forward.
  • Look for a way to turn the problem into an opportunity by solving the problem uniquely in a way that favors you.
  • Consider asking them to help solve the problem.
  • Do NOT respond with an attack. Local officials can be in place for a long time and may hold a grudge.

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How Do You Communicate Benefits Changes Following an Acquisition? Four Thoughts

Situation:  A company was recently acquired. The acquirer wants to merge benefit structures between the two entities. Both contribute a similar amount toward benefits; however the distribution of benefits between retirement and health plans, and other benefits varies considerably. How do you approach the staff to communicate changes in benefits following an acquisition?

Advice from the CEOs:

  • Ideally, you want to gather employee input on what benefits are important to them before the overall package is finalized. This will help you to negotiate in your employees’ interest.
  • Make sure that the acquiring entity is aware of state regulatory requirements that may force them to retain state-specific benefits.
  • National companies often employ a cafeteria benefit strategy that allows the employees to make choices among benefit options, and fund these choices either at a company-paid base level or allow employees to supplement their choices through pre- or post-tax payroll deductions. There are numerous providers who offer cafeteria plans.
  • What’s the best way to have a conversation with employees once the new benefit package has been finalized?
    • Emphasize that the company is offering and funding this benefit and specify the amount that the company is funding as a percent of salary.
    • Create a grid mapping the full program:
      • Amount of company contribution
      • Old Program and benefits
      • New Program and benefits
      • Changes in allocation and changes in the total value of benefits offered.
    • If you have access to industry or regional comparisons for like-sized companies, and those comparisons put your company in a favorable light, share these as part of the communications package.
    • If you know that a highly valued benefit is being reduced, consider a short-term subsidy to ease the shift.
    • Be sure that you are clear and concise in your communications of the new plan and changes to the employees. You may want to have an outside consultant on hand to cover specific questions.
    • Be sure that any decisions your employees must make in the new program are fully and clearly explained.

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What Are The Best Ways to Create a Presence in China? Six Suggestions

Situation: A company’s major customers are expanding their manufacturing in China. They want the company to be able to service their Chinese locations. If you don’t already have a presence in China, what are the best ways to create a presence in China? In addition, how do you get the cash produced by these operations out of China?

Advice from the CEOs:

  • Increasingly, multinational businesses with operations in China seek vendors who can seamlessly handle all of their domestic and international needs. In China, the objective is to be able to translate service output into English so that US managers can monitor the output and assure that Chinese operations are meeting the same or similar basic standards as their domestic and other foreign operations. If your company can’t do this large contracts are at risk.
  • Look for local partners, including partners located in Hong Kong or Japan who can deliver service in China to your standards. You want partners who you can risk-manage.
  • It is interesting to look at the Japanese approach to China. Japanese concerns known to CEOs around the table only transfer highly developed, late stage manufacturing projects to China.
  • As you look at partners who have capabilities in China there are a number of qualities that you want to investigate:
    • Competence and honesty.
    • Loyalty – a partner who will stick with your company and not just take the new knowledge and start to compete with you.
    • Absence of graft and record of compliance with the Foreign Corrupt Practices regulations.
  • If you work with Chinese partners, work with two of them. Do not give them exclusive agreements, and do not tell them about one-another. This is critical to protecting any IP that you will be using in China.
  • We’ve learned over the past year that taking cash from your Chinese operations out of China is difficult. The Chinese government imposes heavy fees and levies on companies exporting earned capital because they want this capital to remain in China. Given this, you must ask yourself whether this is important to you. [like]

How Do You Respond To A Frivolous Lawsuit? Four Suggestions

Situation: A company sued a customer for non-payment. The customer had a long history of slow payment or payment only on threat of denial of service. The customer countersued and has offered to settle for a $7,000 payment. How would you advise the CEO to respond to this frivolous lawsuit?

Advice from the CEOs:

  • One option is to let the countersuit go to trial. The challenge is that if this ends up before a jury the outcome is a crapshoot and can be very stressful. You may win, but at a higher cost than to settle, and if the other party declares insolvency you may never recover your costs. You also have to deal with the distraction of the suit.
  • Another option is to respond very aggressively through your lawyer. This sends a message to the other party and may prompt them to lower or drop the settlement demands. If this doesn’t work and you aren’t a gambler, give up the $7K and walk away. However, if there is a way to make this the most expensive $7K that the other party ever collected, go for it.
  • You may decide on principal to prosecute the case to send a strong message to the market that others should not fool around with your company.
  • To prevent this situation in the future, assure that you have clauses in all your agreements to prevent future repetitions of this situation. Specify binding arbitration in the case of payment or performance disputes. Arbitration can be more effective and timely than litigation.

Key Words: Suit, Countersuit, Jury, Arbitration, Cost, Opportunity, Delinquency, Payment, Settlement, Clause

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