Alternate Dispute Resolution

It’s no secret... lawsuits are expensive, there’s no guarantee of success, and even if you win a monetary award, there’s no guarantee the award will ever be collected. For these and other reasons, the notion of resolving disputes without lawsuits can seem attractive. Consider the following... What is ADR? Alternate Dispute Resolution... Simply stated, ADR is any means of resolving a dispute without litigation. Probably the most commonly used form of ADR is—negotiation. Parties are always free to resolve disputes themselves—without any formal process whatsoever. However, the most widely recognized forms of ADR are mediation and arbitration. Mediation is usually…Continue Reading

Selecting, Protecting and Using Business Names (Revisited)

The importance of business names... Choosing a name for your business or practice is an important matter. In addition to marketing considerations, the selection, protection, and use of business names implicate legal issues entrepreneurs often overlook or misunderstand. Here are a few thoughts on the subject. How to search the availability of NJ business names---FREE! Searching the “availability” of names of business and professional entities in NJ is free and easy. Simply hop on the web and go to, enter the preferred name in the dialogue box, click search, and the results will appear. CAUTION! The system searches for…Continue Reading

Fee Shifting and Forum Selection in Bylaws

Where to fight your "partners"... And who will pay? Clearly, litigation can present numerous difficult issues. Among the fundamental issues are the questions of where the lawsuit must be brought and whether you can compel your adversary to pay your attorneys' fees and litigation expenses if you win. Consider the following... Where can you commence a lawsuit? For a court of a particular state to a hear case, it must have jurisdiction over the parties. Most typically, a state court will have the power to hear a case if the parties either "live" in the state or otherwise have a…Continue Reading

LLC and Business Corporation Compared

  LIMITED LIABILITY COMPANIES AND BUSINESS CORPORATIONS are just two of the wide variety of business structures to choose from when deciding how to organize and operate business ventures. Other alternatives include the sole proprietorship, general partnership, limited partnership, and limited liability partnership. For a number of reasons, corporations and LLCs are often regarded as “better” choices. This article compares some of the key features of LLCs and corporations.   Historic Availability Corporations have been available in all states for many decades. LLCs have been available in New Jersey since 1994. By comparison, LLCs are relative newcomers but are quickly…Continue Reading

Shareholder Agreements

Shareholder AgreementsOWNERSHIP OF A CORPORATION is represented by shares of stock. Most of us are familiar with public corporations, for example— Microsoft, Ford, Coca Cola, etc. These corporations have large numbers of owners (i.e., stockholders or shareholders) and are referred to as public corporations because their stock is traded freely and openly through recognized exchanges and markets, such as the New York Stock Exchange and NASDAQ. Conversely, private corporation stock is not traded through recognized exchanges and markets, and private corporations are usually owned by a small number of stockholders (i.e., they are closely held). Millions of small businesses are organized…Continue Reading

Selling a Business Legal Aspects and Considerations

SELLING A BUSINESS is a major decision. Business owners typically wrestle with this question when they ponder retirement or wish to pursue different business opportunities and interests. This article highlights the legal aspects and potential pitfalls of various stages of the business sale process. Sale vs. Dissolution Rather than selling the company, a business owner could, of course, wind-up and dissolve the company. However, in doing so, the business owner will not be able to fully realize the value of the company’s goodwill. In essence, goodwill consists of a business’ reputation, patronage and other intangible assets. Typically, a successful business…Continue Reading

Selecting, Protecting and Using Business Names

CHOOSING A NAME FOR YOUR BUSINESS OR PRACTICE is an important matter. A business name can serve to inform potential customers or clients as to what goods or services you offer. With time, a business name will impart to customers and clients, as well as potential customers and clients, a level of quality and professionalism they can expect from you. So, it is no surprise that entrepreneurs should, and often do, carefully consider their choice of business names in the context of marketing and business development. However, in addition to marketing considerations, the selection, protection, and use of business names…Continue Reading

Post-Creation Organization of Corporations

THERE ARE NUMEROUS LEGAL FORMALITIES associated with forming, organizing and operating a business corporation. To create a business corporation, a Certificate of Incorporation must be filed with the appropriate state office. In addition, the corporation must be formally “organized” after the incorporation. An organizational meeting is held by the initial board of directors to adopt bylaws and a corporate seal, elect officers, issue shares of stock, and transact such other important business. The timely completion of this important step may serve to “strengthen” the corporate liability shield and avoid later confusion or disputes concerning the ownership and management of the…Continue Reading

Partnership Agreements

THE GENERAL PARTNERSHIP (“partnership”) form of business has existed for many years. In its simplest form, a partnership is an association of two or more individuals to operate a business for profit. All states have enacted partnership laws. New Jersey’s partnership law was significantly revised in 2000. In absence of an agreement among the partners, partnership laws establish a set of “default rules” that will govern the internal affairs of the partnership. In almost all situations, the law allows partners to replace these rules by having a “partnership agreement.” Although partnership agreements are not usually required, it may be advisable…Continue Reading

Non-Compete Agreements

A NON-COMPETE AGREEMENT (a.k.a. restrictive covenant) in the employment context is a promise by an employee not to compete with his/her employer after the employment ends. This can be embodied within a broad employment agreement or be the only provision in a stand-alone agreement. Because non-compete agreements, by their very nature, restrain trade and negatively impact an employee’s ability to find subsequent employment, people are often under the false impression that such agreements are “illegal” or unenforceable. As a general rule, they are legal and enforceable, provided that they are reasonable under the circumstances. A restrictive covenant is reasonable if…Continue Reading