October 24, 2014
Reiss on Legal Snares for Entrepreneurs
Inc.com quoted me in 6 Legal Snares All Entrepreneurs Should Be Ready to Dodge. It reads,
The last thing you want to do as an entrepreneur is pour through long dull documents written by lawyers for lawyers. But there’s a reason it’s called work and not fun. Miss taking care of this aspect of your business and you might find yourself being investigated by the federal government, on the hook for thousands in otherwise unnecessary costs, in a never- ending fight with others involved in the company, or stuck at the exact time you need to be moving.
I was speaking with David Reiss, a professor of law at the Brooklyn Law School and research director of its Center for Urban Business Entrepreneurship (CUBE). Entrepreneurs often lack the broad business experience that would help them avoid a number of traps on the way to growing a business, he said. Here are some of the most common.
Real estate contract snags
“You have a great idea but know nothing about the basics of being a small business person, so you sign the first lease [you’re offered],” he said. But a commercial property lease is a complex document that makes an apartment lease look like nothing in comparison. It typically is something to be negotiated, and getting help to understand the ramifications of various clauses is crucial. “Often there are pretty complicated rent increase provisions that entrepreneurs don’t get,” he said. The document as written might assign you a portion of the building’s increased operating expenses in addition to rent increases. Overly strong restrictions on the ability or reassign or sublease the lease’s obligations could mean an inability to move to a larger space when the business grows. “What are the use restrictions?” Reiss asked “What if the business morphs into something else? Does that violate the use limitations on the space? “
Pick the right corporate structure
You’ll likely have many choices of how to legally and financially structure the company. Some are an LLC, sole proprietorship, partnership, S-corp. , or C-corp. “They have different tax implications, different implications as you increase in size and revenues,” Reiss said. If you have the wrong structure in place, you might find yourself having to unwind it as the business expands. Not only might that be unnecessarily expensive, but you’ve potentially opened yourself to renegotiating some basic arrangements that could be troublesome.
Get a fitting partner agreement
If you need a reminder of how badly partnerships can go, look at Snapchat or Square. One day everything is fine. The next, former best friends are at each other’s throat. You have to consider how to allocate both profits and losses (some investors might like more of the latter).
“Some people are putting in time, some are putting in intellectual property, and some are putting in cash,” Reiss said. “People have different expectations for each of those contributions.” A thorough and well-constructed partner agreement provides a framework for addressing the important issues before everyone is at an impasse.
Have appropriate protection for intellectual property
All businesses have intellectual property. Getting protection on every aspect can burn through cash. For example, patents are great, but if you can’t lock down broad enough protection, competitors might be able to easily work around the walls you built, in which case you may have wasted money. Perhaps trade secrets might be more appropriate. Do you really need to trademark every single name and phrase? Maybe yes, maybe no. Talk to a professional to devise a useful strategy, keeping an eye on what you can afford and how much effort you might need to divert from getting business done.
You’ll need commercial general liability insurance and might also need property insurance. Might directors and officers liability insurance, also known as D&O, be advisable to protect principals in the company? Does your lease or contracts with clients demand particular levels of coverage?
On one hand, anyone who says that regulations make it impossible to open a business is someone to be questioned. On the other, you can get badly tripped up in some common areas like taxes, handling inventory, or labor laws. “A little bit of planning can save you lots of headaches, money, and bandwidth,” Reiss said. “If you’re working 16 hours a day, you don’t want to be thinking about an investigation by the Department of Labor. You need someone to run through a checklist with you of the regulatory overlays on small businesses.”
Bringing lawyers, accountants, insurance brokers, and others in for reviews and discussions isn’t cheap, but it’s a lot less expensive than trying to solve problems after they’ve snared and tripped you.