Pay Me, Please: How to Get Back Retained Funds

by Shelly Levick Masters

Segal McCambridge Singer & Mahoney, Ltd.

Shelly Masters is a Shareholder in the Austin office of Segal McCambridge Singer & Mahoney, Ltd. With over ten years of experience, she maintains a varied trial practice that focuses primarily in the areas of complex business litigation, general litigation, construction, employment, insurance coverage and products liability. Ms. Masters is a frequent author and speaker on a variety of legal topics for city, state and national events and publications. She is the Co-Leader of the firm’s Construction Practice Group and one of the creators and editors of LegalBuild, a legal newsletter for the construction industry. Her experience includes all aspects of pre-trial and trial work before state and federal courts, as well as mediation and arbitration. She has acted as primary trial counsel involving cases pertaining to construction defects, breach of contract, insurance coverage, property damage, wrongful termination, sexual harassment, personal injury and corporate matters. She has provided legal representation in all aspects of commercial and residential construction, including liability defense, contract disputes and interpretation, OSHA compliance, premises liability and indemnity issues on public, private and federal projects. She currently represents commercial and industrial product and equipment manufacturers in environmental and toxic tort product liability litigation. Her practice also includes corporate risk assessment, insurance coverage analysis and business organization planning and implementation. Segal McCambridge Singer & Mahoney is a full-service, national law firm with offices in Illinois, Maryland, Michigan, New York, New Jersey, Pennsylvania and Texas.

Subcontractors in Texas know that when they subcontract with a prime contractor to work on a private construction project, the prime contractor holds back part of the contract price as retainage. That money is supposed to be paid to the subcontractor after the project is completed. However, as funds diminish and disputes arise, prime contractors may be slow to pay retainage. This article addresses the steps necessary to perfect a claim for retained funds.

Topics: Legal, Articles

Legal lifecycles of businesses – equity financing for the business - part five (part 2 of 2)

by John Drisdale

Drisdale Law Firm

John Drisdale is a principal in the Austin area business law firm of Drisdale Law Firm. Drisdale believes in Ben Franklin’s theory that preventive legal costs are typically a fraction of remedial legal costs such as litigation and dispute resolution. John graduated second in his 1979 law class at Baylor University and was Editor in Chief of the Baylor Law Review. He is a published author and speaker on several important legal topics that affect small business including business entity formation, buy-sell agreements, purchasing and selling businesses, contracts, and commercial real estate. His professional experience includes practicing business law as a partner in an international law firm and serving as general counsel for a publicly traded global corporation. John now focuses on the "entry to exit" preventive business law needs of small to mid-size businesses. Drisdale limits his law practice to the areas he knows best and helps his clients manage the rest. Litigation, tax and other specialty matters are referred to other attorneys and professionals. John’s practice is based in Lakeway Texas where he has been an active Board member of the Lake Travis Chamber of Commerce for many years. He enjoys making business owner educational presentations to area groups and is a lifetime learner.

This is the fifth of 18 articles tracing the legal lifecycle of a business from its formation, through its operation and to its sale. As a Texas attorney located in Lakeway, Texas (outside of Austin in Central Texas), John Drisdale is limiting these articles to a summary of Texas and federal legal matters.

Topics: Legal, Articles, Content Type

Legal lifecycles of businesses – equity financing for the business - part five (1 of 2)

by John Drisdale

Drisdale Law Firm

John Drisdale is a principal in the Austin area business law firm of Drisdale Law Firm. Drisdale believes in Ben Franklin’s theory that preventive legal costs are typically a fraction of remedial legal costs such as litigation and dispute resolution. John graduated second in his 1979 law class at Baylor University and was Editor in Chief of the Baylor Law Review. He is a published author and speaker on several important legal topics that affect small business including business entity formation, buy-sell agreements, purchasing and selling businesses, contracts, and commercial real estate. His professional experience includes practicing business law as a partner in an international law firm and serving as general counsel for a publicly traded global corporation. John now focuses on the "entry to exit" preventive business law needs of small to mid-size businesses. Drisdale limits his law practice to the areas he knows best and helps his clients manage the rest. Litigation, tax and other specialty matters are referred to other attorneys and professionals. John’s practice is based in Lakeway Texas where he has been an active Board member of the Lake Travis Chamber of Commerce for many years. He enjoys making business owner educational presentations to area groups and is a lifetime learner.

This is the fifth of 18 articles tracing the legal lifecycle of a business from its formation, through its operation and to its sale. As a Texas attorney located in Lakeway, Texas (outside of Austin in Central Texas), John Drisdale is limiting these articles to a summary of Texas and federal legal matters.

Topics: Featured, Legal, Articles

Avoiding litigation with “defensive due diligence” for tech company acquisitions

by James Blake

The Blake Law Firm, PLLC.

James Blake is a growth-oriented business attorney who strives to be a creative business partner, to identify value-add opportunities, and to crystallize the relationships, structures, and processes that will drive your commercial success. James Blake practices law in Texas and Hawaii, and has protected the interests of businesses across a broad range of industries, including technology, construction, service and retail, food and beverage, franchisors and franchisees, product manufacturers, and investors. His work experience encompasses commercial transactions, litigation, and advising business operations in the U.S., Africa, and Asia. James was an editor of Law Review at the University of Hawaii and conducted international commercial law research for the Institute of Asian Pacific Business Law. He served as the Official Reporter for the 2008 IAPBL China Enterprise Bankruptcy Law Symposium held in Hong Kong, and in the same year worked at a large firm in Singapore. James currently advises clients in international business and investment issues in addition serving his client’s legal and business needs in Hawaii and Texas. Currently based in Austin, Texas, James is an avid writer and enjoys speaking at business-law seminars in addition to his legal practice. In his spare time, James enjoys sculling and kayaking on Ladybird Lake, outdoor photography, and supporting visual and performing arts.

The old adage “time is money” is nowhere more true than in the tech industry, where it’s often more advantageous to buyout another company for its technology instead of investing time and money in an in-house development project. Due diligence is generally a process oriented around discovering information about a target company and its technology, but it’s also a delicate process that must be structured defensively to protect a prospective buyer from future litigation.

A prospective buyer takes on great risk in the due diligence process. The process provides the buyer with a wealth of knowledge about the target company’s trade secrets and other confidential information. Where the buyer decides against acquisition, the target company might sue for willful misappropriation if it believes that the prospective buyer later infringed upon intellectual property revealed in the due diligence process.

To guard against future lawsuits and to fortify available defenses, prospective buyers should design and implement multiple mechanisms of “defensive due diligence.” The first step in this process is to define the essential goals of the acquisition, specifically identifying the scope of the technology that the buyer wishes to obtain and the purpose that technology will serve for the buyer. Providing this limited focus for your due diligence team will prevent inadvertent discovery of extraneous confidential information that might later become the subject of a lawsuit.

The second step is for the prospective buyer to identify and document all of its own prior or current efforts to develop technology similar to the other company’s targeted technology. Thorough documentation of the buyer’s concurrent technology development will provide the front line of defense in a lawsuit alleging that the prospective buyer misappropriated the target company’s intellectual property.

A third and critical step is to plan the methods of holding, transferring, and communicating the acquired information among and between due diligence team members. This is imperative to protect the information from leaking outside of the due diligence team. Also, if the prospective buyer decides against acquisition, all confidential information must be destroyed – a daunting (and sometimes impossible) task if the document management and communication systems are not strictly structured and implemented.

As with any endeavor, a business seeking to obtain technology through merger or acquisition must “look before it leaps” to safeguard against future legal woes. While a large part of the due diligence process involves an “offensive” strategy of discovering a target company’s weak points, it’s also important to have a good “defensive” game, too. A comprehensive defensive due diligence strategy that includes the three steps outlined above can prevent many future lawsuits from emerging and can provide the elements of a strong defense when litigation rears its ugly head.

Topics: Technology, Business Best Practices, Legal, Strategic Planning, Articles, Risk Management

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5 ways to prevent excessive costs in your construction project

by James Blake

The Blake Law Firm, PLLC.

James Blake is a growth-oriented business attorney who strives to be a creative business partner, to identify value-add opportunities, and to crystallize the relationships, structures, and processes that will drive your commercial success. James Blake practices law in Texas and Hawaii, and has protected the interests of businesses across a broad range of industries, including technology, construction, service and retail, food and beverage, franchisors and franchisees, product manufacturers, and investors. His work experience encompasses commercial transactions, litigation, and advising business operations in the U.S., Africa, and Asia. James was an editor of Law Review at the University of Hawaii and conducted international commercial law research for the Institute of Asian Pacific Business Law. He served as the Official Reporter for the 2008 IAPBL China Enterprise Bankruptcy Law Symposium held in Hong Kong, and in the same year worked at a large firm in Singapore. James currently advises clients in international business and investment issues in addition serving his client’s legal and business needs in Hawaii and Texas. Currently based in Austin, Texas, James is an avid writer and enjoys speaking at business-law seminars in addition to his legal practice. In his spare time, James enjoys sculling and kayaking on Ladybird Lake, outdoor photography, and supporting visual and performing arts.

Large construction projects come loaded with latent risks that could lead to project failure or excessive cost due to the interdependent relationships of material suppliers, sub-contractors, general contractors, architects, and engineers. Some of these risks may be mitigated through no-cost contract and process controls, while other risk management methods will inevitably add expense to your project. The best strategy to protect your project against failure or runaway costs will likely include a combination of techniques, including some of the methods described below.

Topics: Featured, Business Best Practices, Legal, Articles, Risk Management

Legal lifecycles of businesses – protecting business assets - part four

by John Drisdale

Drisdale Law Firm

John Drisdale is a principal in the Austin area business law firm of Drisdale Law Firm. Drisdale believes in Ben Franklin’s theory that preventive legal costs are typically a fraction of remedial legal costs such as litigation and dispute resolution. John graduated second in his 1979 law class at Baylor University and was Editor in Chief of the Baylor Law Review. He is a published author and speaker on several important legal topics that affect small business including business entity formation, buy-sell agreements, purchasing and selling businesses, contracts, and commercial real estate. His professional experience includes practicing business law as a partner in an international law firm and serving as general counsel for a publicly traded global corporation. John now focuses on the "entry to exit" preventive business law needs of small to mid-size businesses. Drisdale limits his law practice to the areas he knows best and helps his clients manage the rest. Litigation, tax and other specialty matters are referred to other attorneys and professionals. John’s practice is based in Lakeway Texas where he has been an active Board member of the Lake Travis Chamber of Commerce for many years. He enjoys making business owner educational presentations to area groups and is a lifetime learner.

This is the fourth of 18 articles tracing the legal lifecycle of a business from its formation, through its operation and to its sale. As a Texas attorney located in Lakeway, Texas (outside of Austin in Central Texas), John Drisdale is limiting these articles to a summary of Texas and federal legal matters.

Topics: Featured, Legal, Articles

New insurance coverage may alter contract litigation

by Shelly Levick Masters

Segal McCambridge Singer & Mahoney, Ltd.

Shelly Masters is a Shareholder in the Austin office of Segal McCambridge Singer & Mahoney, Ltd. With over ten years of experience, she maintains a varied trial practice that focuses primarily in the areas of complex business litigation, general litigation, construction, employment, insurance coverage and products liability. Ms. Masters is a frequent author and speaker on a variety of legal topics for city, state and national events and publications. She is the Co-Leader of the firm’s Construction Practice Group and one of the creators and editors of LegalBuild, a legal newsletter for the construction industry. Her experience includes all aspects of pre-trial and trial work before state and federal courts, as well as mediation and arbitration. She has acted as primary trial counsel involving cases pertaining to construction defects, breach of contract, insurance coverage, property damage, wrongful termination, sexual harassment, personal injury and corporate matters. She has provided legal representation in all aspects of commercial and residential construction, including liability defense, contract disputes and interpretation, OSHA compliance, premises liability and indemnity issues on public, private and federal projects. She currently represents commercial and industrial product and equipment manufacturers in environmental and toxic tort product liability litigation. Her practice also includes corporate risk assessment, insurance coverage analysis and business organization planning and implementation. Segal McCambridge Singer & Mahoney is a full-service, national law firm with offices in Illinois, Maryland, Michigan, New York, New Jersey, Pennsylvania and Texas.

Business owners have long wrestled with the uncertainties inherent in litigation, often times reaching what is commonly known as the “business decision” to resolve legal matters by way of pre-trial settlement in order to minimize the unknown costs and outcomes associated with trial. In contract litigation, a party’s litigation risks may be heightened beyond the threat of an adverse verdict for breach of that contract if the contract at the subject of the dispute contains a “prevailing party” provision (i.e., a contract clause requiring that, in the event of litigation, the prevailing party is entitled to recover attorneys’ fees from the losing party). Further, in the absence of a contract with such a provision, parties face this risk as Texas law provides a statutory right to recover attorney’s fees to a prevailing party under certain circumstances. See TEX. CIV. P. & REM. Code § 38.001. Tallying up the amounts of a potentially adverse verdict, a party’s own legal fees and adding in those of the adverse party is enough to dissuade even those with the strongest of cases from taking the matter to court.

Topics: Featured, Legal, Articles

Legal lifecycles of businesses: securing ownership of the business assets, part three

by John Drisdale

Drisdale Law Firm

John Drisdale is a principal in the Austin area business law firm of Drisdale Law Firm. Drisdale believes in Ben Franklin’s theory that preventive legal costs are typically a fraction of remedial legal costs such as litigation and dispute resolution. John graduated second in his 1979 law class at Baylor University and was Editor in Chief of the Baylor Law Review. He is a published author and speaker on several important legal topics that affect small business including business entity formation, buy-sell agreements, purchasing and selling businesses, contracts, and commercial real estate. His professional experience includes practicing business law as a partner in an international law firm and serving as general counsel for a publicly traded global corporation. John now focuses on the "entry to exit" preventive business law needs of small to mid-size businesses. Drisdale limits his law practice to the areas he knows best and helps his clients manage the rest. Litigation, tax and other specialty matters are referred to other attorneys and professionals. John’s practice is based in Lakeway Texas where he has been an active Board member of the Lake Travis Chamber of Commerce for many years. He enjoys making business owner educational presentations to area groups and is a lifetime learner.

This is the third of 18 articles tracing the legal lifecycle of a business from its formation, through its operation and to its sale. As a Texas attorney located in Lakeway, Texas (outside of Austin in Central Texas), John Drisdale is limiting these articles to a summary of Texas and federal legal matters. As these articles evolve, their numbering and order may be adjusted or supplemented by his blogs as appropriate.

Topics: Featured, Legal, Articles

State of Texas small business survey

by Jan Triplett

Business Success Center

Jan Triplett, Ph.D. is the CEO of the Business Success Center (BSC), a City of Austin certified green business, that provides sales and financial growth strategies, planning, and implementation. She is also a professor in Business and Professional Skills for the online MBA program at Mary Baldwin University. Triplett is a national and international speaker, author of A Networker’s Guide to Success and co-author of Thinking Big, Staying Small and Easy to be Green. She published The Networker ” magazine for over ten years and moderated KUT radio’s nationally syndicated program, “The Next 200 Years”. She was co-creator of the award-winning “City Management Academy” and the “Owners MBA” and co-founded the Entrepreneurs’ Association Hatchery incubator and accelerator. She is a small business activist. She served as a White House Conference on Small Business and Congressional Summit delegate, served on the Mayor’s Task Force on International Infrastructure, initiated the Northcross IBIZ District and recommended portions of Austin’s Big Box Ordinance. She was a founder of the Women’s Chamber of Commerce of Texas and the Greater Austin International Coalition. The SBA honored her as Texas’ Small Business Advocate. She has also earned her CBTAC and Director credentials. Her company received a Small Business Administration (SBA) five-star national award and the Austin Business Journal named it a top 20 management consulting firm.

No ivory tower wanted here. Instead let's tell them like it is!

Topics: Featured, Legal, Blog Posts, Strategic Planning, Risk Management

How the rise of SaaS relates to SOX, SAS 70 and your legal contracts

by Amanda Finch

Journyx

Amanda Finch is a software industry veteran and a leading expert in alliance strategy. Ms. Finch is the Director of Strategic Alliances at Journyx, the first company to provide Web-based time-tracking, project accounting and resource management solutions that guide customers to per-person, per-project profitability. Ms. Finch is also CEO of ADV Group, a consulting firm that helps software companies manage alliance portfolios to deliver real competitive advantage. Ms. Finch has worked with larger companies such as IBM, NEC, and Vignette, as well as a broad range of startups. As a Certified Project Manager, she has authored numerous articles on project and program management for online and print publications. She has also contributed to law journals and other publications on the topic of regulatory compliance for software-service providers and consumers.

The growing popularity of Software-as-a-Service (SaaS) is having a significant impact on data security and regulations compliance. Most companies are concerned—and rightly so—about the legal and security issues raised when company data is located outside their firewall. This article will explain:

Topics: Featured, Legal, Articles

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