Willcox, Buyck & Williams, PA Blog

Wednesday, October 21, 2015

Legal Terminology in Contracts Explained

What do these words mean? How does they affect the meaning of the contracts?

All of us sign contracts on a routine basis, whether we work under contract or sign contracts for personal reasons, such as during a purchase. You may, for example, have signed a contract when you signed up for cell phone service. If you took the time to read the entire contractual agreement to determine exactly what you were agreeing to, you may have found yourself stumped by certain of the terms. In this post, we'll define some of the terms that appear frequently in contracts. Remember, however, that the best way to interpret a contract is with the expert advice of a seasoned business law attorney.

In general, contracts are formed after the acceptance of a valid offer. The party extending the offer is called the offeror, and the party receiving the offer is called the offeree. Much of contract litigation focuses on the offer -- the offeror’s willingness to enter into a contract with the offeree that provides the offeree with the power to accept the offer and create a contract. In addition, much litigation is devoted to the acceptance -- the moment that the contract is created.

Contracts often have conditions. Depending on the language used, the obligations of one or more parties to do something pursuant to the contract may not come into effect until a particular condition has been satisfied. All contracts, however, must have what is called consideration. Consideration is the bargained-for exchange of the parties -- “this for that”  which the parties perform pursuant to the contractual exchange.

When a contractual agreement is breached, that is when one or more parties fails to do what they have agreed to do, the non-breaching party can seek a remedy. One type of remedy is damages -- the financial adjustment the court can order one party to make to right the wrong. Damages are computed in many different ways, but are always designed to attempt to make the non-breaching party whole again after the breach, by, for example, ordering the breaching party to pay compensation. Another type of remedy is an injunction, which forces one party to take a particular action.

This post is just a limited overview of very common contractual terms. To go further in depth speak with an attorney at Willcox, Buyck & Williams, P.A. Contact us at our Florence office at 843-536-8050, or our Myrtle Beach office at 843-461-3020.


Saturday, October 10, 2015

Court Decision in Favor of Employer in Disability Accommodations Case

How accommodating does an employer have to be to an employee with disabilities?

A case was recently brought before the 4th U.S. Circuit Court of Appeals concerning a disabled employee seeking accommodations beyond those required by the Americans with Disabilities Act (ADA). Both ADA federal regulations for businesses with more than 15 employees and state laws for smaller businesses require that employers make "reasonable" accommodations to disabled employees unless doing so would create "undue hardship."

The case in question involves a man who worked as a human resources specialist for the Durham Veterans Administration Medical Center in North Carolina from 2003 until his termination in 2011 for poor job performance. The employee suffers from dyslexia and attention deficit disorder (ADD). For most of his time working for the Veterans Administration, he did not request or receive special accommodation and his work was considered acceptable. His duties included customer service, recruitment, and providing technical advice and assistance.

About one year before his termination, however, he received a poor performance report. At that time, he was given a Performance Improvement Plan which he successfully completed. Nonetheless, in May, 2011, for the first time, he made a request for accommodation of his disabilities, including that his duties be limited and his performance standards lowered; he also requested an assistant. He stated that, due to organizational, leadership, and technological changes, his job had become untenable and that he had been “hospitalized twice due to the stress of the position."

In response, the Durham Veterans Administration Medical Center offered him a possible transfer to a less stressful, albeit lower-salaried, position, but he refused. He said he was interested only in the chaplain or patient advocate position, but neither was available. At this point, the employee filed a formal Equal Employment Opportunity complaint and in August, 2011 was terminated for documented performance violations, including failure to perform necessary tasks in a timely manner.

The employee sued under the Rehabilitation Act and the U.S. District Court for the Middle District of North Carolina dismissed the lawsuit in favor of the employer. Although the employee appealed his case to the 4th U.S. Circuit Court of Appeals, the appellate court upheld the lower court’s decision. Both stated that employer was not compelled to change either the employee's workload, its own performance standards, or to hire an extra employee to assist him.

If you are having legal difficulties with employment or labor law issues, or would like to discuss other business-related matters of law, please contact one of our highly qualified attorneys at Willcox, Buyck & Williams. Serving clients throughout South Carolina, we can be reached at: 843.536.8050 or 843.461.3020.


Thursday, October 8, 2015

Family Business

Family Business: Preserving Your Legacy for Generations to Come

Your family-owned business is not just one of your most significant assets, it is also your legacy. Both must be protected by implementing a transition plan to arrange for transfer to your children or other loved ones upon your retirement or death.


More than 70 percent of family businesses do not survive the transition to the next generation. Ensuring your family does not fall victim to the same fate requires a unique combination of proper estate and tax planning, business acumen and common-sense communication with those closest to you. Below are some steps you can take today to make sure your family business continues from generation to generation.

  • Meet with an estate planning attorney to develop a comprehensive plan that includes a will and/or living trust. Your estate plan should account for issues related to both the transfer of your assets, including the family business and estate taxes.
  • Communicate with all family members about their wishes concerning the business. Enlist their involvement in establishing a business succession plan to transfer ownership and control to the younger generation. Include in-laws or other non-blood relatives in these discussions. They offer a fresh perspective and may have talents and skills that will help the company.
  • Make sure your succession plan includes:  preserving and enhancing “institutional memory”, who will own the company, advisors who can aid the transition team and ensure continuity, who will oversee day-to-day operations, provisions for heirs who are not directly involved in the business, tax saving strategies, education and training of family members who will take over the company and key employees.
  • Discuss your estate plan and business succession plan with your family members and key employees. Make sure everyone shares the same basic understanding.
  • Plan for liquidity. Establish measures to ensure the business has enough cash flow to pay taxes or buy out a deceased owner’s share of the company. Estate taxes are based on the full value of your estate. If your estate is asset-rich and cash-poor, your heirs may be forced to liquidate assets in order to cover the taxes, thus removing your “family” from the business.
  • Implement a family employment plan to establish policies and procedures regarding when and how family members will be hired, who will supervise them, and how compensation will be determined.
  • Have a buy-sell agreement in place to govern the future sale or transfer of shares of stock held by employees or family members.
  • Add independent professionals to your board of directors.

You’ve worked very hard over your lifetime to build your family-owned enterprise. However, you should resist the temptation to retain total control of your business well into your golden years. There comes a time to retire and focus your priorities on ensuring a smooth transition that preserves your legacy – and your investment – for generations to come.


Thursday, September 24, 2015

How the New Cyber-Security Bill May Impact Your Business

How can I protect my business from liability due to hackers and cyber-security issues?

It seems as though every month or so, some large retailer (or the federal government) is caught scrambling to undo the latest remote hack of consumer financial data. From Home Depot to Michael’s, hackers have found intricate ways to obtain and misuse consumers’ credit card numbers, Social Security numbers, and other sensitive data. And, when this happens, where do consumers turn for answers and/or compensation? The store that allegedly allowed the breach.

Of course, stores that accept credit cards have the major credit card companies to fall back on in the event an issue occurs. Moreover, most banks will cover the cost of a data breach or fraud – reimbursing the entire sum to the cardholder with (virtually) no questions asked. Small business owners, however, wonder if there are any steps they can take to help provide added peace of mind to their worried customers, who, of course, are  eager to protect their identities and hard-earned income?

In Washington, Congress is preparing to impose international sanctions on nations considered to be involved in data hacks on American private business and government. In addition, it is preparing to add significant amendments to the Cyber Security Bill, including a clause that limit’s businesses’ liability when sharing information with the FBI or Secret Service about the details of a hack. For those who are engaged in tech, loss prevention, or anti-fraud industries, this detail could help block lawsuits from those concerned with privacy matters over the greater good of consumers overall.

Of course, consumer privacy is another major issue to consider (think: AshleyMadison.com), and many opponents of the Cyber Security Bill (in current form) object to its contents on the grounds that it provides businesses and the government with too much leeway in release personal information about perceived threats. For instance, some lawmakers are seeking to include language requiring companies to “remove, to the extent feasible, any personal information of or identifying a specific individual… that is not necessary to describe or identify a cyber security threat.” Others wish to expand this language further, requiring businesses to remove data it “reasonably believes” (as opposed to “knows”) does not pertain to a significant cyber security threat.

If you would like to discuss your business's rights and obligations with regard to consumer data and liability, please contact one of our skilled and knowledgeable business attorneys at Willcox, Buyck, & Williams. Serving South Carolina for  over a century, we can be reached at 843.536.8050 or 843.461.3020.


Friday, September 4, 2015

A Look at Google’s New Structure & Tips for Companies Looking to Regroup

What are some options for a business looking to reorganize and regroup?

In August, 2015, Google, Inc. announced a drastic reorganization plan in which it planned to focus more intently on its original business endeavor: search engines. Over the past several years, Google has dabbled in everything from driverless cars to medical research – and sources have suggested that its investors have grown weary of the growing list of "distractions." Accordingly, Google used the unique Delaware corporate law structure – which is similarly utilized by a vast number of Fortune 500 companies – to create a new company known as Alphabet.

Basically speaking, Google created the Alphabet holding company to manage its portfolio of burgeoning concepts that fall outside the realm of internet products – including Calico, its medical research firm, Google X research labs,, Fiber,which is working on a nationwide broadband network, and several capital investment firms. From there, the Alphabet umbrella will subsume Google, Inc., and its shareholders – who in combination own a company worth $226 billion. All owners will maintain the same percentage interest, just with a much broader scope.

How did a company the size of Google ever convince all its shareholders that this restructuring was a good idea? Well, under Section 251(g) of Delaware General Corporate Law, it didn’t have to. Under this little-known code section, companies wishing to merge with a holding company (i.e., Alphabet, Inc.) do not need shareholder consent to complete the transaction. Although the board of directors is still bound by the fiduciary duties of loyalty and fair dealing, a majority vote was not required in this instance, allowing the company to reorganize in the way it saw fit.

Interestingly, Google’s Class C stock, which is held by a vast majority of its non-executive shareholders, precludes participation in corporate voting and does not carry any voting rights at all. So, even if the shareholders disagreed with the move, they would need to initiate a costly derivative lawsuit to unravel the merger.

If you have questions about the best way to manage your business, corporation or shareholders, please do not hesitate to contact one of our skilled business and corporate attorneys at Willcox, Buyck & Williams. Serving clients from Florence to Myrtle, South Carolina, we can be reached  at 843.536.8050 or 843.461.3020.


Thursday, September 3, 2015

Small Business

Should I Incorporate My Business?

The primary advantages of operating as a corporation are liability protection and potential tax savings. Like any important decision, choosing whether to incorporate involves weighing the pros and cons of the various business structures and should only be done after careful research.

Once incorporated, the business becomes a separate legal entity, and assets of the corporation are separated from the owner’s personal finances. As a result, the owner’s personal assets generally can be shielded from creditors of the business.

To maintain this legal separation and avoid “piercing the corporate veil,” the corporation must observe certain formalities, including:

  • Keeping corporate assets and personal assets separate (no commingling of funds)
  • Holding shareholder and director meetings at least annually
  • Maintaining a corporate record book including bylaws, minutes of shareholder and director meetings, and shareholder records
  • Filing annual information statements with the Secretary of State
  • Filing a separate tax return for the corporation

Many business owners are concerned about “double taxation” of income that affects certain types of corporations known as “C-Corporations”.   Double taxation results when the C-corporation has profit at the end of the year that is distributed to the shareholders. That profit is taxed to the corporation, at the corporate tax rate, and then the dividends are taxable income to the shareholders on their personal tax returns. However, the corporate tax and dividend rates can be lower than the individual tax rate that a sole-proprietor would pay on a 1040 Schedule C, and a knowledgeable accountant or tax attorney may be able to advise on how to minimize the burden of double-taxation and indeed pay an effective tax rate which is lower than what a sole proprietor would pay.

For example, a small C-Corporation will likely have a shareholder who is also an employee. Paychecks to the shareholder/employee are, of course, tax deductible to the business. To the shareholder/employee, they are taxable income (as would be the case with a paycheck from any employer). A bonus could be paid to the shareholder/employee in order to lower the corporation’s taxable profit, eliminating the double-taxation. These calculations should be performed by a tax advisor, but shifting income from the corporation to the shareholder/employee (or not, depending on which has the lower tax rate) can be an effective way to lower your overall tax liability. In addition, there are certain advantages that are only available with a C-Corporation, such as full tax-deductibility of medical benefits for a shareholder/employee.

The S-Corporation avoids the double-taxation by offering a tax structure similar to the Limited Liability Company. A corporation with 100 or fewer shareholders can elect to be treated as an S-Corporation. If the corporation is profitable, the shareholder/employee must draw a reasonable salary (and pay employment tax on it), but then all remaining corporate profits flow through to the shareholder’s personal tax return (thereby avoiding the FICA tax on the portion of profits that is taken as a dividend).

An experienced attorney can help you decide which form of ownership is best for your business, help you establish the entity, and ensure the required formalities are observed.


Thursday, August 27, 2015

SEC Adopts New CEO ‘Pay Ratio’ Rule

Is the SEC within its authority to regulate CEO salaries of public companies?

In 2010, the Dodd Frank Act was enacted to help address some of the egregious and dishonest acts that gave rise to the 2008 financial crisis. Among many other mandates, the Act included a provision requiring that CEOs of publicly traded companies list their salaries in ratio format as compared with the median salary of their employees. The measure, however, has taken several years to implement, and was finally adopted as a proposal the Securities and Exchange Commission (SEC) in August, 2015.

According to Section 952(b) of Dodd Frank, commissioners of the SEC were directed to amend the Code of Federal Regulations to require the following three pieces of information in each quarterly filing:

  • The median of the annual total compensation of all employees, excluding the chief executive officer (or any equivalent position);
  • The total annual compensation of the chief executive officer
  • The ratio of the median employee salary to that of the chief executive officer.

The mandate, which was set into law in 2010, remained stagnant on the books for another two years, at which point the SEC stated it would be “finalizing the [pay ratio rule] within the next two months…”

Finally, in 2013, the SEC formally initiated a proposal to implement the pay ratio rule. Thereafter, nearly 300,000 public comments were launched from concerned investors in favor of the increased disclosure. Not until August 2015, however, did the proposal make it to a vote – which resulted in a 3-2 passage of the pay ratio rule, a measure which some decry will do nothing but ‘publicly shame’ CEOs and the companies for whom they work. Critics also launched complaints about the expensive bookkeeping requirements the new law will impose on these corporations.

Supporters of the measure, however,  hope the publicity aspect will deter the “reckless” salary configurations that contributed to the 2008 market crash. The measure is also calculated to address the burgeoning income gap between the wealthiest Americans and those enduring the plights of low income and poverty.

If you are concerned about compliance with SEC mandates and would like to discuss your company’s obligations, please contact Willcox, Buyck & Williams, P.A. at 843-536-8050 in Florence or 843.461.3020 in Myrtle Beach.


Wednesday, August 19, 2015

Commercial Real Estate

Negotiating a Commercial Lease? Be Sure to Address These Issues

When it comes time for your business to move into a new commercial space, make sure you consider the terms of your lease agreement from both business and legal perspectives.  While there are some common terms and clauses in many commercial leases, many landlords and property managers incorporate complicated and sometimes unusual terms and conditions.   As you review your commercial lease, pay special attention to the following issues which can greatly affect your legal rights and obligations.

The Lease Commencement Date
Commercial leases typically will provide a rent commencement date, which may be the same as the lease commencement date. Or not. If the landlord is performing improvements to ready the space for your arrival, a specific date for the commencement of rent payments could become a problem if that date arrives and you do not yet have possession of the premises because the landlord’s contractors are still working in your space. Nobody wants to be on the hook for rent payments for a space that cannot yet be occupied. A better approach is to avoid including in the lease a specific date for commencement, and instead state that the commencement date will be the date the landlord actually delivers possession of the premises to you. Alternatively, you can negotiate a provision that triggers penalties for the landlord or additional benefits for you, should the property not be available to you on the rent commencement date.

Lease Renewals
Your initial lease term will likely be a period of three to five years, or perhaps longer. Locking in long terms benefits the landlord, but can be off-putting for a tenant. Instead, you may be able to negotiate a shorter initial term, with the option to extend at a later date.  This will afford you the right, but not the obligation to continue with the lease for an additional period of years.   Be sure that any notice required to terminate the lease or exercise your option to extend at the end of the initial lease term is clear and not subject to an unfavorable interpretation.

Subletting and Assignment
If you are locked into a long-term lease, you will likely want to preserve some flexibility in the event you outgrow the space or need to vacate the premises for other reasons. An assignment transfers all rights and responsibilities to the new tenant, whereas a sublease leaves you, the original tenant, ultimately responsible for the payments due under the original lease agreement. Tenants generally want to negotiate the right to assign the lease to another business, while landlords typically prefer a provision allowing for a sublease agreement.

Subordination and Non-disturbance Rights
What if the landlord fails to comply with the terms of the lease? If a lender forecloses on your landlord, your commercial lease agreement could be at risk because the landlord’s mortgage agreement can supersede your lease. If the property you are negotiating to rent is subject to claims that will be superior to your lease agreement, consider negotiating a “nondisturbance agreement” stating that if a superior rights holder forecloses the property, your lease agreement will be recognized and honored as long as you fulfill your obligations according to the lease.


Tuesday, August 18, 2015

The Best Lawyers in America

Congratulations to Mark W. Buyck, Jr. and Mark W. Buyck, III for once again being selected by their peers for inclusion in The Best Lawyers in America 2016.  Mark W. Buyck, Jr. was selected in the fields Personal Injury Litigation and Mark W. Buyck, III was selected in the areas of Employment and Labor Law.

Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Over 79,000 leading attorneys globally are eligible to vote, and we have received more than 12 million votes to date on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2016 Edition of The Best Lawyers in America©, 6.7 million votes were analyzed, which resulted in more than 55,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers "the most respected referral list of attorneys in practice."


Friday, August 14, 2015

Congress Considering Bill to Simplify Mergers & Acquisitions Process

What are the latest advancements on federal corporate laws as relating to mergers and acquisitions? 

For many small businesses, the option of merging with another business – or acquiring it altogether – can be an attractive and lucrative way to increase productivity, grow jobs, and ultimately increase profits. Oftentimes, businesses considering this maneuver will enlist the services of a professional advisor or business broker to help set up the deal and seamlessly transition the companies involved. 

Unbeknownst to many, these consultants are heavily regulated by the Securities and Exchange Commission (SEC), which oversees any merger or acquisition involving the “purchase/sale, exchange, or issuance or stock or debt, or a merger or business combination transaction.”  The compliance costs for these brokers are substantial, reaching almost $150,000 annually – which is, of necessity, passed on as part of the final cost of the merger or acquisition. For many small and micro businesses, these compliance costs preclude the involvement of a broker or consultant, resulting in potential pitfalls as they attempt to expand.

Fortunately, Congress has introduced a new piece of legislation known as the Small Business Mergers, Acquisitions, Sales and Brokerage Simplification Act. Under this Act, brokers and consultants would be exempt from the regulatory oversight requirements if the proposed merger/acquisition involves businesses with annual earnings of less than $25 million and/or gross revenues of less than $250 million. In addition, the exemption would only be available in situations in which the buyer intends to maintain control and ownership of the business after purchase. 

The sponsors of the bill hope that these changes will allow smaller businesses the opportunity to work with experienced professionals during the merger and acquisition process, thereby allowing businesses the opportunity to avoid any mistakes along the way. Moreover, the change would help effectuate the estimated $10 trillion worth of private companies that will be sold or transferred as the Baby Boomer generation retires. 

If you are considering a merger or acquisition and would like to discuss the best ways to accomplish your business goals, contact the South Carolina attorneys at Willcox, Byuck & Williams, P.A. today! Please call: (843) 461-3020 in Myrtle Beach or (843) 536-8050 in Florence. 


Wednesday, August 12, 2015

Careful what you post on social media

Don’t Let Your Social Networking Activities Undermine Your Divorce Negotiations

According to the American Academy of Matrimonial Lawyers, in the past five years 81% of its members have represented clients in cases involving evidence from social networking sites, such as Facebook, MySpace, Twitter, YouTube and LinkedIn. Posted pictures and comments can make the job all-too-easy for your former spouse’s attorney to attack your credibility and ensure you do not receive the relief that you are requesting from the court.

A picture is worth a thousand words. And that picture you posted of yourself, in various stages of undress, or with a marijuana cigarette in one hand and a drink in the other, speaks volumes to the court and can result in unfavorable rulings regarding child custody or visitation. But the information posted doesn’t even have to be tawdry or illegal to land you in trouble. What about the ex-husband who claims he has no income, but his Facebook profile is chock-full of photos of luxury purchases or exotic vacations? What about the parent who posts profanity-laden status updates, insulting the judge’s competence? Should it find its way into the court, none of this information is going to help your case.

All of these communications can be considered by the court in making its rulings. Nothing you post online is 100% private, regardless of your privacy settings. Opposing attorneys can always subpoena the records, share your dirty secrets with the court, impeach your credibility, and obtain a favorable ruling for their client – your ex-spouse.

The lasting implications of a negative court ruling can far outweigh the momentary, fleeting satisfaction of venting your frustration at the judge or your ex, or sharing “fun” photos on your Facebook profile. The bottom line is that you have to think before you post. It has often been said that you should not publish anything that you wouldn’t want your Mother to see. A similar standard should be applied for those going through a divorce. What if that comment you are about to make, or the photo you are about to post, were to fall into the hands of your ex-spouse’s lawyer? This can have far-reaching consequences, affecting your income and support obligations, or visitation and custody of your children.

To avoid the pitfalls of information sharing in the digital age, you must assume that anything and everything you post will be obtained by opposing counsel and find its way into the courtroom. Family law cases involve some of our most private matters and care should be taken to ensure you protect your own privacy. Preserve your attorney-client privilege by refraining from sharing any details of your relationship or conversations with your attorney. Avoid posting compromising photos, or making derogatory remarks on your social networking profiles.

Above all, do not post anything you wouldn’t want your ex, his or her attorney, or the judge to see. Regardless of how restrictive your privacy settings may be, this information can easily be subpoenaed and become a part of the court record. If there is any doubt, do not post. You cannot “unring that bell!”
 


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