Starting a new business can be both an exciting and daunting process. Many of the entrepreneurs I have met love running their company, but they typically do not enjoy attending to certain administrative or legal items that are essential to the long-term success of any business. Accordingly, it’s not uncommon for entrepreneurs to let important legal issues slide as they get caught up managing a number of other business issues that they view as more pressing. Unfortunately, legal mistakes can significantly set start-ups back and can even kill the business altogether. This article will briefly summarize five common legal pitfalls that all start-ups should seek to avoid.
1. Failing to Incorporate the Start-Up as a Limited Liability Entity
This item is absolutely crucial. Every business, regardless of its type or industry, is exposed to liability. There are any number of things that can lead to significant liability, such as: products liability or other tort claims, contract disputes between vendors or suppliers, employment law claims, problems paying back debt, etc. Every state offers a variety of limited liability entities to choose from (e.g., Corporations, LLCs, Limited Partnerships, etc.). Structuring your business in this form generally ensures that the founders’ personal assets are protected if the company gets sued, goes bankrupt, etc. Without the liability shield offered by these various entities, the founders’ personal assets (as opposed to just the assets of the company) are at risk. Naturally, it is easy to see how a failure to incorporate can be devastating to both a business and its founders. There is no reason to unnecessarily put your home, your vehicle, or your savings at risk.
2. Failing to Have a Written Agreement Between Co-Founders
It is important to have a formal founders agreement (e.g., Buy-Sell Agreement, Operating Agreement, Partnership Agreement, etc.) in place between the key players as early possible. Any founders agreement should cover a number key business terms, such as:
- What percentage of the company each founder owns;
- Who the officers and directors of the company are;
- How the key decisions and day-to-day decisions of the business will be made;
- How salaries will be determined;
- How contributions of cash or other assets will be made; and
- What restrictions will be placed on transfer of ownership interests in the company (i.e., what happens if a founder dies, becomes disabled, or otherwise leaves the company).
A failure to have a good founders agreement in place can lead to substantial headaches down the road. Disputes over any one of these issues can ultimately lead to long and expensive litigation (the Facebook ownership dispute is often cited as a classic example).
3. Failing to Have a Good (Pro-Company) Set of Standard Terms and Conditions for Products/Services
Every company should have a well drafted set of standard terms and conditions to govern the sale and/or purchase of goods and services. Otherwise, the business relationship in question may be governed by less favorable boiler plate terms supplied by the other party or by general legal defaults (which may or may not be favorable depending on the circumstances). A good set of standard terms and conditions should:
- Discuss what representations or warranties (if any) are being made in connection with the products or services? Generally, if you are the seller/service provider, it is a good idea to disclaim all representations and warranties (whether express or implied) except for those set forth in the relevant documents. It is obviously important to limit the start-up’s potential exposure for costly breach of warranty claims;
- Place limits on the company’s potential liability. A good set of terms of conditions will generally limit (or exclude altogether) a company’s liability for any special, consequential or indirect damages (such as lost profits). Moreover, it is not uncommon for standard terms and conditions to limit a company’s total exposure under a contract to a stated percentage of the purchase price or service fee received;
- Address payment, shipping and delivery terms;
- Protect your confidential information and intellectual property; and
- Outline how disputes will be resolved (i.e., what is the governing law and what venue will disputes be decided in?). This item is especially important when dealing with cross-border customers or suppliers (i.e., having to litigate a matter in another country’s court system can unpredictable, time consuming and expensive).
It is easy to see why having a clear framework governing the relationship between your customers and/or suppliers is a good idea as it can significantly limit any potential exposure in the event of a dispute. While these terms may be subject to some negotiation, they can at least provide a favorable starting point and some measure of predictability.
4. Failing to Sufficiently Protect Intellectual Property
Intellectual property (“IP”) is often the most valuable asset of a start-up. IP generally encompasses a company’s ideas, products, processes and production methods, trade secrets, name and logo, etc. Exploitation of any of these items can be severely damaging to a business. For example, it is easy to see how it could be harmful if a competitor is able to copy your new product or open a competing business utilizing a similar name and logo. Some common ways to protect your intellectual property are:
- Patents. A patent gives an inventor the ability to protect their invention by granting the right to prevent others from making, using, or selling the patented subjected matter for a period of time.
- Copyrights. Copyrights protect various types of creative works (software, books, articles, music, movies, etc.). A copyright generally gives the owner the exclusive right to make copies or derivative works of the protected item.
- Trademarks. Trademarks protect the value of names, logos, etc. Trademarks are acquired by use; however, registering a trademark at the federal level has numerous benefits, including the ability to restrict competitors from using “confusingly similar” marks.
- Nondisclosure Agreements. Non-disclosure agreements can be used to prevent customers, suppliers and employees from disclosing a company’s confidential or proprietary information.
5. Employment Issues
Employment law is another area where start-ups frequently run into problems:
- For instance, having employees presents tax compliance issues (i.e., certain withholdings are required from each paycheck). In addition, make sure you know the difference between independent contractors and employees as misclassification can lead to various penalties.
- It is generally a good idea to have written employment agreements with key employees. A good employment agreement should: outline the scope of the employment relationship and protect the company by containing provisions regarding assignment of inventions, non-disclosure, and non-competition obligations.
The attorneys at Fitzpatrick Lentz and Bubba, P.C., have extensive experience advising entrepreneurs and start-ups. For more information, please contact Ken Charette or any other attorney in our Corporate, Business and Banking Group.
This blog post has been prepared and published for informational purposes only. None of its content should be construed as or relied upon as legal advice. Therefore, no one should act or refrain from acting based on its content. The content is not a substitute for competent legal advice. For legal advice or answers to specific questions, please contact one of our attorneys. Information provided by our attorneys should only be considered legal advice after a formal attorney-client relationship has been established with our law firm and you and confirmed in writing by one of our attorneys.