People who run companies, big or small, understand business, and especially they know their area of expertise better than any lawyer. Business Law protects what you have, the business you build, and importantly the knowledge, understanding, and expertise which sets you apart from your competitors.
Once you have the legal documents, agreements and contracts in place you will be free to energize your efforts and to focus on growing your organization, without having to look over your shoulder and waste good energy and time on legal matters that could have been avoided.
Henderson & Henderson law firm in Charleston SC is also a small business, therefore we understand the constant challenges of running a company. We believe local businesses provide unique character, exceptional services, and innovative products. We know that many legal problems can be prevented or mitigated with the proper legal counsel. See the sections below for more information.
Business Law Services
Partnership and Operating Agreements
As an internal-affairs governing document it establishes functional roles and financial responsibilities of owners, members, and/or managers. They clarify verbal communications during your firm’s formation or modification process. Additionally, they serve as a shield for the company against personal liability. Without a partnership and operating agreement, your business might resemble a sole proprietorship, thus potentially jeopardizing your members to personal liability.
Typically these documents contain provisions on powers and duties of members and managers and distribution of profits and losses, however, there are no specific guidelines on its contents. Each business is unique, and their operating agreement should be tailored to reflect the operations of their limited liability company (LLC.) Only six states (California, Delaware, Maine, Missouri, Nebraska, and New York) legally require LLCs to have one, however, it is highly recommended for all companies to create something to protect owners from personal liability and to organize primary functions within one key document. This will establish internal transparency and serve as a company’s roadmap for handling large decisions. Our business law firm would be delighted to assist you in creating a valid and enforceable operating agreement.
This subject covers a large category of law. Our firm is equipped to handle mergers and acquisitions, entity formation, contract development and review, and other business transactions, which can range from lease negotiation to licensing agreements. A large portion of our clients joined us while they were forming their firm, and we still continue to handle their important issues as they have flourished here in the Lowcountry of Charleston and South Carolina!
As you begin and also grow, it is almost inevitable that you will have to seek intellectual property law protections. They have fostered innovation as patents protect inventions, copyrights protect literary and musical work, and trademarks protect slogans and logos. While patents and copyrights are issued by the federal government, trademarks can be issued by state. In South Carolina, the Secretary of State’s Office registers and renews trademarks. Whether you are trying to protect your brand or defend your artwork, our firm is able and ready to assist you in protecting you fully.
Contract Drafting and Review
Whilst they are legally binding, and can be orally constructed, important contracts, especially related to your livelihood, should be written and signed by all parties. They are the epicenter of the SME and corporate world. Drafting includes writing out the terms, fees, conditions, and functional duties of all parties involved. Examples of common contracts are service, confidentiality, non-compete, and independent contractor agreements. If you already have something binding, it would be advantageous to have a business attorney review them to point out the dangers of ‘breach’ and other complicated provisions.
Strategic Entity Formation and Conversion
Having been voted the #1 Best City in the United States for the seventh year in a row, Charleston, is notorious for its rich history, aesthetic window boxes and colorful houses, and most importantly – tourism. The restaurant trade is booming year round, and the Lowcountry is growing to be a magnet for manufacturing as Boeing, Volvo, and the Port Authority employ thousands of workers. Additionally, with the Joint Military Base and the Medical University, our economy is impressively diverse.
Starting your business, or moving to South Carolina has never been easier. Whether you are forming a corporation, non-profit, or limited liability company (LLC), we will guide you through the statutory requirements to have your establishment up and running.
These are governing documents that detail the functional duties and roles of senior members within your company. Most importantly, it details the decision-making process. Furthermore, it will outline profit shares, regulations of sale of corporate shares, and the processes for when shareholders leave the company – voluntarily and involuntarily. Whilst they should complement your company’s organizing document and bylaws, the main goal is to equitably and fairly safeguard everyone involved, while protecting the company at large.
Sometimes there comes a time when businesses have run their course and are ready to dissolve. This can be due to retirement, other prospects, or a failure. In South Carolina, you must (1) close your tax accounts, and (2) file articles of dissolution pursuant to S.C. Code § 33-14-103. The filing fee for South Carolina LLC is $35.00. You could potentially still owe unemployment insurance tax, employee withholding tax, and/or sales & use tax. It is important to have a legal guide walk you through the process of properly dissolving your firm to avoid liability.
This important function includes strategizing, identifying, and developing plans for future leaders and managers within your business. It is a process that ensures your organization will run smoothly after certain people leave their positions. This activity assesses your training programs, develops how you evaluate performance reviews, and addresses potential roadblocks for growth. Having a corporate attorney perform a comprehensive review for you can help efficiently streamline turnover processes and protect your short and long term future.
Here is a system and process by which companies are controlled and directed. Typically, the board members are primarily responsible for governing their organizations. It is the duty of the shareholders to appoint the directors and serve as a check and balance to the board. Strategic corporate governance reinforces transparency and accountability within your firm’s leadership. Having a business attorney serving as a third-party legal guide eliminates the conflict of interest between shareholder and upper management. Our lawyers serve as counselors and consultants that will review your company regulations, management communication, and best practices for efficient operation.
This refers to “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the good of one party from those of others.” Additionally, service marks are similar to trademarks, but instead of representing a good, it represents a source of services. However, both terms are traditionally referred to as the same. You can register yours with the United States Patent and Trademark Office, or you can register it within your state. While filing at the state level is less expensive, it only provides protection within your state.
In South Carolina, an application is $15.00, and you must include the following: (1) name of applicant; (2) applicant’s principal place of work address; (3) any South Carolina business addresses; (4) type of company formation; (5) description of the trademark; (6) a list of the goods or services with which it will be used; (7) mode or manner in which it will be used; (8) the class(es) in which the goods/services fall in; (9) date of first use; and (10) three specimens of the mark. Retaining an attorney to assist in your registration will help you understand the process and streamline your application.
Referring to “a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works.” It is used to protect intellectual property including your literary, musical, dramatic, and artistic works. Registration is voluntary, however, if you seek to bring a lawsuit for infringement, you must register your work.
As today’s world becomes increasingly centered around technology, seeking protection is highly encouraged. The defense to an infringement is Fair Use, which is a legal doctrine that grants unlicensed use of material under certain circumstances. Section 107 of the Copyright Act identifies certain situations that permit use of protected material – such as “criticism, comment, news reporting, teaching, scholarship, and research” – as examples of activities that may qualify as fair use. However due to the ever-evolving, complex field of intellectual property law, it is advised that you seek a business attorney to assist you in registering or making a claim for infringement.
Trade Secret Protection
As another subset of intellectual property, this will “consist of information and can include a formula, pattern, compilation, program, device, method, technique or process.” Specifically, in order to be entitled to trade secret protection, the secret must be (1) used in a business and (2) give an economic advantage over other competitors involved in the same type of activity.
While this arose out of the United State’s ratification of the Agreement on Trade Related Aspects of Intellectual-property Rights, an international accord between World Trade Organization members, claims typically are handled in state court. In 2016, Congress passed the Defend Trade Secrets Act of 2016 which created a federal civil right of action for parties to remove their action to federal court. Here in SC, protections are codified in the South Carolina Code of Laws in Title 39: Trade and Commerce, Chapter 8: Trade Secrets. You might be entitled to recovery if a former employee or competitor misappropriated your information and obtained your trade secret improperly.
This is a contract between the co-owners or board of directors that governs in the event that a co-owner or board of directors’ member dies, leaves the organization, or is forced to leave the firm. They are also referred to as “buyout agreements.” Buy-sell agreements can be tailored to control who can buy a departing owner’s share or seat, and how the succession plan is carried out. Most situations that trigger their use are death, disability, retirement, divorce, bankruptcy, and/or sale of the company. Having this understanding mitigates conflict and dispute during turbulent times and provides stability and consistency for shareholders and board members.
This covers an understanding between you and your supplier that details the roles and responsibilities of the contracted goods or services. Additionally, they will typically outline the fees associated with the goods or services. Vendor contracts should address proprietary and confidential information, termination and remedies, and disclaimers and indemnifications. They are multifaceted and should be personalized to your company’s characteristics. Our firm here in Charleston, S.C. is more than equipped to draft an agreement specific to your organization that will provide clarity and understanding to you and future customers.
Independent Contractor Agreements
These are legally binding contracts between clients and suppliers, typically for the performance of a specialized set of services. Also referred to as “1099 workers”, the contract will detail the set of services agreed upon and will identify costs and payment for the services. One of the most important reasons for an independent contractor agreement is to clearly explain that they are not an employee of the client. These are typically ensured more benefits from their employers than independent service suppliers. South Carolina distinguishes the difference through a four part balancing test: (1) direct evidence of the right or exercise of control; (2) furnishing of equipment; (3) the method of payment; and (4) the right to fire. A clear understanding that identifies the specific roles of the contractor along with a distinct payment plan can protect your organization from future liability.
These form a binding contract between employers and their staff. Additionally, it can be an agreement between a worker and labor union. Employment agreements detail salary or wages, the worker’s schedule, duration of contract, and general responsibilities. While understanding can be implied from promises from interviews, a document solidifies one’s status and prevents firing of anyone unexpectedly. South Carolina is deemed an “at-will employment state” which means that an employer may fire or an employee may quit their job without notice or reason. To avoid this unexpected situation, a contract can prevent the uncertainty of working at-will.
This is a contract between you and an employee that mandates they will not enter into similar employment during or after with competitors. Also referred to as covenants not to compete, they are based on the basic principle of respect, but they are narrowly construed and generally disfavored by the law to promote economic competition in communities. In South Carolina, in order to have a valid and enforceable noncompete agreement, it must satisfy the following five-prong test: 1) necessary for the protection of the legitimate interest of the employer; (2) reasonably limited in its operation with respect to time and place; (3) not unduly harsh and oppressive in curtailing the legitimate efforts of the employee to earn a livelihood; (4) reasonable from the standpoint of sound public policy; and (5) supported by valuable consideration. Because of the high burden to meet to enforce one, it is highly advised to retain an attorney to guarantee you are procedurally sound and in compliance with state laws.
Non Solicitation Agreements
Similar to noncompete, in the fact they limit former staff members from approaching the company’s clients directly. Essentially, keeping former employees from stealing customers from under their former employer. Non solicitation agreements should address confidential information that is to not be shared in future employment; this normally includes client lists and certain company secrets. They are normally between companies and contractors or between contractors and subcontractors.
These are agreements between two or more parties to agree to keep secret certain information. They are used in the corporate world to ensure contractors and potential investors do not divulge company secrets after being on the work site or being introduced to sensitive company information. NDAs outline confidential information that is off limits to be shared, and most should include a time period of how long one or more parties must keep information secret. In South Carolina, the law typically will enforce a nondisclosure agreement unless it impedes on economic freedom and seeks to limit competition in a community.
Terms of Employment
This document explains the responsibilities and benefits of a job, and should explain work hours, wages/salary, vacation and sick days, plus other associated benefits. While you might have a valid verbal contract with a member of staff, it is highly recommended to have an expressed agreement between the employer and employee. Typically, the details will require notice and/or reason for termination, and “a person hired under an employment contract for a definite term may not be discharged before the completion of the term without just cause.”
Without an expressed contract, a worker might consider themselves an employee at-will, which allows them to quit without notice or reason, thus leaving you rushing to re-hire. Specific terms will streamline the hiring process, clearly set expectations, and provide stability for your business.
If you are around long enough, these will happen. When one or both parties disagree about the terms and conditions of a former agreement, you have found yourself in the middle of a contract dispute. Typically, most of these revolve around ambiguous definitions or confusion around the offer and acceptance. However, sometimes you might be stuck in a scenario where there is a clear and material breach of contract. There are a handful of remedies available depending on the severity and type of issue. If you are facing a disagreement, big or small, call us today, and we will navigate you through until a settlement is reached.
As a rule of thumb, you should have a written agreement with each of your people. This should include their hourly rate or salary, their term, and their provided benefits. Without a legal document, everyone is stuck in the classic he-said-she-said situation that will inevitably lead to a dispute or misunderstanding. If you are in need of employee contract drafting or review, please call our office today to learn how we can help your business!
Even within the most well-oiled organizations, disagreements between employers and employees will appear. Whether you are faced with wrongful termination allegations, wage disputes, or harassment claims, our lawyers at Henderson & Henderson are prepared to navigate the situation with your best interest in mind. While you can take preventative measures to these types of claims, there will come a day where you will most likely be found to be the target of litigation. In this case, do not retaliate. Contact our office for guidance and to review your options.
Business Law Case in Charleston: Partnership Dispute
A business owner called our law firm one day with problems with his partner. Things were great early on and the business was successful, but the relationship deteriorated. One was working more hours and generating more revenue which caused problems eventually. On top of that, there was nothing more than a verbal understanding that they were 50/50.
This is when we explained how valuable an operating agreement for business owners can be. It can prevent what became a costly dispute between the parties. Our legal documents can tackle many of the issues that may come up later and are a great preventative piece of the puzzle.
Learn more about what a business attorney can do for you, about Wesley Henderson, and contact us with any question.