Law Offices of John Michael Jensen

Business Law

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In bargaining, negotiating, or deal-making, John Michael Jensen is committed to helping optimize your financial position, recognize risks, and negotiate beneficial arrangements that build lasting partnerships and relationships.

Business law attorneys play a critical role in advising and representing businesses in various legal matters related to their operation. Here’s a more detailed and comprehensive overview of the areas in which business law attorneys can provide assistance:

  1. Business Formation and Structure: When starting a business, one of the primary legal considerations is the structure of the entity. This involves choosing between forms like a sole proprietorship, partnership, limited liability company (LLC), or corporation. Each structure has distinct legal implications for liability, taxation, and regulatory compliance. The process includes registering the business with appropriate state authorities, drafting articles of incorporation or organization, and creating bylaws or operating agreements that govern the business’s internal operations.
  2. Business Formation and Structure: Business law attorneys help entrepreneurs and business owners choose the most suitable legal structure for their business, such as sole proprietorship, partnership, corporation (including S-corporations and C-corporations), or limited liability company (LLC). They handle the necessary paperwork, such as articles of incorporation or organization, and ensure compliance with state and federal regulations.

Business formation is a critical aspect of business law that involves the creation and structuring of a business entity. The choice of business structure, such as a sole proprietorship, partnership, corporation, or limited liability company (LLC), has significant legal and financial implications.

1. Types of Business Structures:

  • Business formation involves selecting the appropriate legal structure for a business. Common business structures include:a. Sole Proprietorship: A business owned and operated by a single individual with no legal distinction between the business and its owner.b. Partnership: A business owned and operated by two or more individuals who share profits and liabilities.c. Corporation: A legal entity separate from its owners (shareholders) that provides limited liability protection to shareholders.d. Limited Liability Company (LLC): A hybrid entity that combines aspects of both partnerships and corporations, offering limited liability protection to members.

2. Legal Consequences of Business Formation:

  • The choice of business structure has significant legal consequences, including:a. Liability Protection: Some structures, like corporations and LLCs, provide limited liability protection, shielding owners’ personal assets from business debts and liabilities.b. Taxation: Different structures have varying tax implications, such as pass-through taxation for partnerships and LLCs or double taxation for corporations.c. Ownership and Management: The structure determines how the business is owned and managed, with corporations having a more complex management structure than sole proprietorships, for example.d. Regulatory Compliance: Different structures may be subject to various regulatory requirements and reporting obligations.

3. Examples:

  • Sole Proprietorship: John, an electrician, starts his own business. He operates as a sole proprietorship, meaning he has full control over the business but is personally liable for any business debts.
  • Partnership: Sarah and David decide to open a law firm together. They form a partnership, which allows them to share profits and responsibilities but also makes them personally liable for the firm’s obligations.
  • Corporation: A group of entrepreneurs decides to launch a tech startup. They incorporate their business, creating a separate legal entity. As shareholders, they have limited liability protection but must comply with complex corporate governance and reporting requirements.
  • Limited Liability Company (LLC): A group of friends starts a restaurant business. They choose to form an LLC, combining the flexibility of a partnership with limited liability protection, allowing them to operate the restaurant while protecting their personal assets.

4. Legal Formalities for Business Formation:

  • To establish a business entity, various legal formalities must be followed, including:a. Name Registration: The business must choose a legal name that complies with state regulations and is not already in use by another entity.b. Filing Articles of Incorporation or Organization: The business must file the necessary documents with the state government, such as articles of incorporation for corporations or articles of organization for LLCs.c. Operating Agreements or Bylaws: Partnerships, corporations, and LLCs often require the creation of operating agreements or bylaws that outline how the business will be governed and managed.d. Registered Agent: Many states require businesses to appoint a registered agent who can accept legal documents on behalf of the business.

5. Legal Compliance:

  • Each business structure has specific legal requirements and ongoing compliance obligations, such as annual filings, tax reporting, and record-keeping. Non-compliance can lead to legal consequences and penalties.

6. Liability Protection:

  • One of the primary reasons for choosing certain business structures like corporations and LLCs is to limit personal liability. This means that, in the event of business debts or legal claims, the personal assets of owners are generally protected.
  • Example: If a corporation faces a lawsuit, the shareholders’ personal assets, such as their homes and savings accounts, are typically shielded from the claims against the corporation.

7. Taxation Implications:

  • Business structures can have varying tax implications. For example, sole proprietorships and partnerships are typically subject to pass-through taxation, while corporations may be subject to double taxation on profits.
  • Example: In a partnership, the business itself does not pay income taxes; instead, profits and losses are “passed through” to the individual partners, who report this income on their personal tax returns.

8. Conversion and Dissolution:

  • Businesses can change their structure or dissolve entirely as their needs evolve. Converting from one structure to another or closing a business involves specific legal procedures.
  • Example: A successful family-owned LLC decides to convert to a corporation to attract outside investors. This conversion requires filing the necessary documents and complying with regulatory requirements.

In summary, business formation is a critical aspect of business law that involves selecting the appropriate legal structure for a business. The choice of structure has significant legal consequences, impacting liability, taxation, ownership, management, and regulatory compliance. Legal professionals, including business attorneys and tax advisors, play a crucial role in guiding entrepreneurs and business owners through the process of business formation, ensuring compliance with relevant laws and regulations, and helping them make informed decisions about their business structures.

  1. Contracts: Contracts are the foundation of most business transactions. Issues in this area include the negotiation, drafting, and review of agreements to ensure they are legally binding and enforceable. This encompasses sales contracts, service agreements, leases, and non-disclosure agreements. Understanding and properly executing contracts can protect businesses from legal disputes and liabilities.
  2. Contract Drafting, Review, and Negotiation: Business law attorneys are skilled in drafting, reviewing, and negotiating various types of contracts that businesses enter into. This can include contracts with vendors, customers, employees, and partners. They ensure that contracts are legally sound, protect the client’s interests, and are enforceable in court if necessary.

Contract law is a fundamental component of business law that governs the creation, enforcement, and interpretation of agreements between parties. Contracts are legally binding agreements that outline the rights and obligations of the parties involved.

1. Elements of a Contract:

  • To be legally enforceable, a contract typically requires the following elements:a. Offer: One party must make a clear and specific offer to enter into an agreement.b. Acceptance: The other party must accept the offer without material changes.c. Consideration: There must be something of value exchanged between the parties, often referred to as “consideration.” It can be money, goods, services, or a promise to do or refrain from doing something.d. Legal Capacity: Both parties must have the legal capacity to enter into a contract, meaning they are of sound mind and legal age.e. Legal Purpose: The purpose of the contract must be legal and not violate public policy or laws.

2. Types of Contracts:

  • Business contracts can take various forms, including:a. Express Contracts: The terms of the contract are explicitly stated in writing or orally.b. Implied Contracts: The terms of the contract are not explicitly stated but are inferred from the parties’ conduct.c. Unilateral Contracts: One party promises to do something in exchange for a specific act by the other party.d. Bilateral Contracts: Both parties exchange promises to perform specific actions.e. Executed Contracts: Both parties have fulfilled their obligations.f. Executory Contracts: One or both parties have not yet fulfilled their obligations.

3. Formation of a Contract:

  • A contract is formed when the offer is accepted, creating a legally binding agreement. Here’s an example:
  • Example: Sarah offers to sell her vintage record collection to David for $1,000, and David agrees to the terms. They have formed a contract, with Sarah as the seller and David as the buyer.

4. Legal Consequences of Contracts:

  • Contracts have significant legal consequences, including:a. Enforceability: A valid contract can be enforced through legal remedies if one party fails to fulfill their obligations.b. Damages: If a party breaches the contract, the non-breaching party may be entitled to damages, which are financial compensation for losses incurred.c. Specific Performance: In some cases, a court may order the breaching party to fulfill their contractual obligations as specified in the contract.d. Rescission: A court may cancel or void a contract if it is determined to be illegal or entered into under duress, fraud, or misrepresentation.e. Equitable Remedies: Injunctions and other equitable remedies may be available to prevent one party from taking certain actions or to compel specific actions.

5. Types of Breach:

  • Breach of contract occurs when one party fails to perform their obligations as specified in the contract. There are two main types of breach:a. Material Breach: This is a significant violation of the contract that goes to the core of the agreement. The non-breaching party may be entitled to damages and other remedies.b. Minor Breach: Also known as a partial breach, this is a less significant violation that does not go to the core of the contract. The non-breaching party may still be entitled to damages but must continue to perform their own obligations.
  • Example: If a contractor fails to complete a construction project on time, resulting in significant delays and additional costs, it may be considered a material breach.

6. Contract Disputes and Resolution:

  • When contract disputes arise, parties may attempt to resolve them through negotiation or alternative dispute resolution methods like mediation or arbitration. If those fail, they may pursue litigation in court.
  • Legal professionals, including contract attorneys, play a crucial role in representing parties in contract disputes, ensuring that their rights are protected, and helping them seek appropriate remedies.

7. Statute of Frauds:

  • The Statute of Frauds is a legal principle that requires certain contracts to be in writing to be enforceable. These typically include contracts related to real estate, sales of goods over a certain value, and agreements that cannot be performed within one year.
  • Failure to adhere to the Statute of Frauds may render a contract unenforceable.

8. Example of Statute of Frauds:

  • If Alice agrees to lease a commercial property for five years, and the lease term cannot be completed within one year, the contract should be in writing to comply with the Statute of Frauds.

9. Limitations and Exclusions:

  • Some contracts may contain limitations or exclusions of liability, outlining the extent to which one party is responsible for damages in case of breach. However, these provisions must be reasonable and not violate public policy.
  • Courts may not enforce overly broad or unconscionable limitations of liability.
  • Choice of Law Provisions.
  • Example: A contract between a California-based company and a New York-based supplier may include a clause stating that New York law governs the contract, and any disputes must be resolved in New York courts.
  • In summary, contract law is a fundamental aspect of business law that governs the creation, enforcement, and interpretation of legally binding agreements between parties. Business contracts outline the rights and obligations of the parties involved and have significant legal consequences, including enforceability, remedies for breach, and potential damages. Legal professionals, including contract attorneys, play a crucial role in ensuring that contracts are properly drafted, enforced, and, if necessary, litigated to protect the interests of their clients. Understanding contract law is essential for conducting business transactions and resolving disputes in a legally sound manner.

Regulatory Compliance

  1. Regulatory Compliance: Businesses must adhere to a multitude of regulations that govern their operations. This includes environmental laws, health and safety standards, privacy regulations, anti-trust laws, and more. Compliance is complex and specific to each industry, often requiring legal expertise to navigate the applicable laws and avoid penalties.
  2. Regulatory Compliance: Business attorneys assist businesses in understanding and adhering to a myriad of federal, state, and local regulations that apply to their specific industry. This includes licensing, permits, environmental regulations, and industry-specific compliance standards.

Regulatory compliance is a vital aspect of business law that involves adhering to laws, rules, and regulations set forth by government authorities and industry bodies. These regulations cover various aspects of business operations and are designed to ensure fairness, safety, transparency, and ethical conduct within the business environment.

1. Importance of Regulatory Compliance:

  • Regulatory compliance is essential for several reasons:a. Legal Obligation: Businesses are legally required to comply with relevant laws and regulations, failure to do so can result in penalties, fines, and legal action.b. Risk Mitigation: Compliance helps mitigate legal, financial, and reputational risks by ensuring adherence to best practices and ethical standards.c. Consumer Trust: Compliance enhances consumer trust by demonstrating a commitment to ethical conduct and customer protection.

2. Types of Regulatory Compliance:

  • Regulatory compliance can encompass a wide range of areas, including:a. Financial Regulations: Such as tax compliance, financial reporting, and anti-money laundering (AML) regulations.b. Environmental Regulations: Covering environmental impact assessments, emissions controls, and waste disposal.c. Employment and Labor Laws: Including employment contracts, workplace safety, and fair labor standards.d. Privacy and Data Protection: Ensuring the protection of customer and employee data in accordance with data privacy laws.e. Consumer Protection: Compliance with regulations related to advertising, product safety, and consumer rights.f. Industry-Specific Regulations: Specific industries may have their own regulations, such as pharmaceuticals, healthcare, and financial services.

3. Legal Consequences of Regulatory Non-Compliance:

  • Failing to comply with relevant regulations can result in various legal consequences, including:a. Fines and Penalties: Government authorities can impose fines and penalties on businesses that violate regulations. For example, a financial institution may face hefty fines for failing to comply with anti-money laundering regulations.b. Civil Lawsuits: Non-compliance can lead to civil lawsuits, where affected parties seek damages for harm caused by regulatory violations. For instance, a patient may sue a healthcare provider for a privacy breach.c. Criminal Charges: In cases of severe non-compliance, individuals or businesses may face criminal charges. For example, corporate executives involved in securities fraud may be criminally prosecuted.d. License Revocation: Regulatory authorities may revoke licenses or permits required for business operations. For instance, a restaurant that repeatedly violates health and safety regulations may have its food service permit revoked.

4. Examples of Regulatory Compliance:

  • Tax Compliance: A business is required to accurately report its income, calculate and pay the correct amount of taxes, and file tax returns in accordance with federal, state, and local tax laws.
  • Environmental Compliance: A manufacturing company must adhere to emission limits, waste disposal regulations, and environmental impact assessments to minimize its environmental footprint.
  • Employment Law Compliance: An employer must comply with labor laws by providing fair wages, safe working conditions, and adhering to anti-discrimination and workplace harassment regulations.
  • Data Privacy Compliance: A technology company must ensure that it collects, stores, and processes customer data in compliance with data protection laws such as the General Data Protection Regulation (GDPR) in Europe.
  • Consumer Protection Compliance: An online retailer must accurately represent products, adhere to advertising regulations, and provide clear return and refund policies to protect consumers.

5. Regulatory Reporting and Documentation:

  • Compliance often requires thorough documentation and reporting. This includes maintaining records of financial transactions, employee training, safety inspections, and environmental impact assessments.
  • Accurate and transparent record-keeping is crucial for demonstrating compliance to regulatory authorities and auditors.

6. Regulatory Agencies and Oversight:

  • Various government agencies and industry-specific bodies oversee and enforce compliance in different areas. For instance, the U.S. Securities and Exchange Commission (SEC) regulates financial markets, while the Environmental Protection Agency (EPA) oversees environmental compliance.

7. Continuous Monitoring and Updates:

  • Regulatory compliance is not static; laws and regulations can change over time. Businesses must engage in continuous monitoring and updates to ensure they remain compliant with the latest requirements.

8. Role of Legal Professionals:

  • Legal professionals, including corporate lawyers and compliance officers, play a crucial role in helping businesses understand, navigate, and implement regulatory compliance measures. They provide legal guidance, develop compliance programs, and ensure that businesses adhere to relevant laws and regulations.

In summary, regulatory compliance is a fundamental aspect of business law, requiring businesses to adhere to laws and regulations set forth by government authorities and industry bodies. Compliance is essential to avoid legal consequences such as fines, lawsuits, and license revocation. Legal professionals play a central role in helping businesses understand and meet their regulatory obligations, ensuring transparency, ethical conduct, and the protection of consumer rights.

Employment Law for Business

  1. Employment Law: Employment law covers a wide array of issues from hiring to termination. This includes creating employment agreements, understanding wage and hour laws, managing benefits, ensuring workplace safety, and preventing discrimination and harassment. Employers must comply with various federal, state, and local regulations, and failure to do so can result in legal action from employees or government agencies.
  2. Employment Law: Business attorneys provide guidance on employment laws, helping companies create employment policies, handbooks, and procedures that comply with labor laws and regulations. They also assist in resolving employment disputes, including issues related to discrimination, wrongful termination, and wage and hour matters.

Employment Law to Assist Business to Comply and Protect

Employment law is a critical area of business law that governs the relationship between employers and employees. It encompasses a wide range of legal issues related to hiring, compensation, workplace conditions, and termination.

1. Overview of Employment Law:

  • Employment law regulates the rights and obligations of employers and employees. Its primary objectives include ensuring fair treatment of employees, preventing workplace discrimination, and promoting safe working conditions.

2. Key Areas of Employment Law:

  • Employment law covers several critical areas, including:
  • a. Employment Contracts: The creation and enforcement of employment contracts, which outline the terms and conditions of employment.
  • b. Wage and Hour Laws: Regulations governing minimum wage, overtime pay, and hours of work.
  • c. Anti-Discrimination Laws: Laws that prohibit discrimination based on factors such as race, gender, age, disability, and religion.
  • d. Workplace Safety: Regulations to ensure a safe and healthy working environment.
  • e. Family and Medical Leave: Laws that allow eligible employees to take unpaid leave for specific family or medical reasons.
  • f. Termination and Severance: Rules regarding employee termination, severance pay, and wrongful termination claims.

3. Employment Contracts and Agreements:

  • Employment contracts establish the terms and conditions of employment, including job responsibilities, compensation, benefits, and the duration of employment. These contracts can be written or implied.
  • Example: An employment contract may specify that an employee is entitled to a base salary, health benefits, and two weeks of paid vacation annually.

4. Wage and Hour Laws:

  • Wage and hour laws set minimum wage rates and establish rules for overtime pay. Employers must comply with these laws to ensure employees are fairly compensated for their work.
  • Example: The federal minimum wage in the United States is $7.25 per hour. If an employee works more than 40 hours in a week, they are generally entitled to overtime pay at a rate of 1.5 times their regular hourly wage.

5. Anti-Discrimination Laws:

  • Anti-discrimination laws prohibit employers from discriminating against employees or job applicants based on protected characteristics such as race, gender, age, disability, and religion.
  • Example: It is illegal for an employer to refuse to hire a qualified candidate solely because of their gender or to terminate an employee due to their age.

6. Workplace Safety:

  • Employers are obligated to provide a safe and healthy workplace for employees. Compliance with workplace safety regulations helps prevent accidents and injuries.
  • Example: An employer must ensure that employees working with hazardous materials have access to appropriate safety equipment and training to prevent chemical exposure.

7. Family and Medical Leave:

  • Family and Medical Leave Act (FMLA) in the United States provides eligible employees with up to 12 weeks of unpaid leave for qualified family or medical reasons. Employers are required to maintain health benefits during this period.
  • Example: An employee may take FMLA leave to care for a newborn child, recover from a serious illness, or provide care for a family member with a serious health condition.

8. Termination and Severance:

  • Termination laws dictate the circumstances under which an employer can terminate an employee and the rights of employees in the event of termination. Severance packages may be offered to departing employees.
  • Example: If an employer terminates an employee for discriminatory reasons, the employee may file a wrongful termination lawsuit seeking damages.

9. Legal Consequences of Non-Compliance:

  • Employers that fail to comply with employment laws may face legal consequences, including:a. Lawsuits: Employees or former employees may file lawsuits for discrimination, wrongful termination, wage violations, or other employment-related issues.b. Fines and Penalties: Government agencies may impose fines and penalties for violations of employment laws.c. Reputation Damage: Non-compliance can harm a company’s reputation and result in the loss of customers and business partners.

10. Role of Legal Professionals:

  • Legal professionals, including employment attorneys and human resources specialists, are essential for businesses to navigate employment law. They help businesses draft compliant employment contracts, establish workplace policies, and provide legal guidance to ensure compliance with employment regulations.

In summary, employment law is a crucial component of business law that governs the relationship between employers and employees. It encompasses various areas, including employment contracts, wage and hour laws, anti-discrimination laws, workplace safety, family and medical leave, and termination rules. Compliance with employment laws is essential to avoid legal consequences, including lawsuits, fines, and reputational damage. Legal professionals play a pivotal role in helping businesses understand, navigate, and comply with employment regulations to ensure fair and ethical treatment of employees while protecting the interests of employers.

Intellectual Property

  1. Intellectual Property: Intellectual property (IP) law involves the protection of creative works and innovations. This includes obtaining and enforcing patents for inventions, trademarks for brand identity, copyrights for artistic and literary works, and trade secrets for valuable business information. IP issues are vital for maintaining competitive advantage and can involve litigation to prevent or address infringement.
  2. Intellectual Property: For businesses that have valuable intellectual property (IP) assets, such as trademarks, copyrights, or patents, business law attorneys can help protect and enforce these rights. This may involve registering trademarks, filing copyright applications, or pursuing legal action against IP infringement.

Intellectual Property Law

Intellectual property (IP) law is a vital area of business law that protects the creations of the mind, such as inventions, literary and artistic works, symbols, names, and images used in commerce. IP rights grant exclusive legal protection to creators and owners, enabling them to control the use and dissemination of their intellectual creations.

1. Overview of Intellectual Property:

  • Intellectual property encompasses various categories, including:a. Patents: Protecting inventions and new discoveries.b. Copyrights: Protecting original literary, artistic, and musical works.c. Trademarks: Protecting symbols, logos, and brand names.d. Trade Secrets: Protecting confidential business information.e. Industrial Designs: Protecting the visual design of products.f. Geographical Indications: Protecting products associated with a specific region’s quality or reputation.

2. Patents:

  • Patents grant inventors exclusive rights to their inventions for a limited period (usually 20 years). They prevent others from making, using, selling, or importing the patented invention without permission.
  • Example: A pharmaceutical company obtains a patent for a new drug it developed. This patent allows the company to be the sole producer and seller of the drug for a certain period.

3. Copyrights:

  • Copyrights protect original literary, artistic, and musical works, granting creators exclusive rights to reproduce, distribute, and perform their works.
  • Example: An author holds a copyright for a novel, giving them control over its publication and adaptation into other media.

4. Trademarks:

  • Trademarks protect symbols, logos, and brand names used to identify and distinguish goods or services in the marketplace. They prevent others from using similar marks that may cause confusion among consumers.
  • Example: A well-known fast-food chain has a trademark for its logo and name, preventing others from using identical or confusingly similar marks in the same industry.

5. Trade Secrets:

  • Trade secrets protect confidential business information, such as formulas, manufacturing processes, and customer lists. They require businesses to take reasonable steps to maintain secrecy.
  • Example: A soft drink company closely guards the formula for its popular beverage as a trade secret.

6. Enforcement and Legal Consequences:

  • Infringement of intellectual property rights can result in legal consequences, including:a. Lawsuits: IP owners can file lawsuits seeking damages or injunctive relief against alleged infringers.b. Injunctions: Courts may issue injunctions to stop ongoing infringement or prevent future violations.c. Damages: IP owners may be awarded monetary damages for losses caused by infringement.d. Criminal Penalties: In some cases, IP infringement can lead to criminal charges, such as counterfeiting.

7. Licensing and Agreements:

  • IP owners often enter into licensing agreements, allowing others to use their intellectual property in exchange for royalties or fees.
  • Example: A software company licenses its proprietary software to other businesses, enabling them to use it under specific terms and conditions.

8. International IP Protection:

  • International treaties and agreements, such as the Berne Convention for copyrights and the Paris Convention for patents and trademarks, provide a framework for IP protection across borders.

9. IP Strategy in Business:

  • Developing an IP strategy is essential for businesses. This includes identifying and protecting valuable IP assets, monitoring for infringement, and enforcing IP rights.
  • Example: A tech company actively patents its innovations to protect its competitive edge in the market.

10. Role of Legal Professionals:

  • IP attorneys and specialists play a crucial role in helping businesses navigate the complexities of intellectual property law. They assist in securing IP rights, drafting agreements, and enforcing IP rights when necessary.

In summary, intellectual property is a cornerstone of business law that protects the creations of the mind, including inventions, artistic works, trademarks, and trade secrets. IP rights provide legal protection and exclusive rights to creators and owners, allowing them to control the use and dissemination of their intellectual creations. Businesses must understand the various categories of intellectual property and develop strategies for protection and enforcement to safeguard their valuable assets and maintain a competitive edge in the market. Legal professionals specializing in IP law play a pivotal role in this process, ensuring that businesses comply with IP regulations and maximize the value of their intellectual property assets.

Business Law Common Issues

Mergers & Acquisitions

  1. Mergers and Acquisitions: M&A activity involves the buying, selling, or merging of businesses. Legal issues here include conducting due diligence, negotiating terms, structuring the deal, and obtaining regulatory approvals. Attorneys help navigate the complex legal and regulatory landscapes to ensure that transactions are conducted legally and are in the best interests of their clients.
  2. Mergers and Acquisitions (M&A): Business law attorneys play a crucial role in M&A transactions. They conduct due diligence, review contracts, negotiate terms, draft acquisition agreements, and ensure compliance with all applicable laws and regulations throughout the merger or acquisition process.
  3. Securities Law: Securities law governs the issue and trade of corporate securities (stocks and bonds). Legal issues include compliance with the Securities and Exchange Commission (SEC) regulations, preparing and filing required disclosures, and managing shareholder relations. This area of law aims to protect investors from fraud and ensure transparency in the securities markets.

Mergers And Acquisitions Law

Mergers and acquisitions (M&A) law is a complex and critical area of business law that governs the process of combining two or more companies. These transactions can take various forms, including mergers, acquisitions, and divestitures, and have significant legal and financial implications for the parties involved.

1. Overview of Mergers and Acquisitions:

  • Mergers and acquisitions involve the consolidation of two or more companies to form a single entity or the purchase of one company by another. Key terms in M&A transactions include:a. Merger: The combination of two or more companies into a new entity.b. Acquisition: One company (the acquiring company) purchases another (the target company).c. Divestiture: The sale or disposal of a portion of a company’s assets or business units.

2. Legal Framework for M&A Transactions:

  • M&A transactions are governed by various laws and regulations, including:a. Antitrust and Competition Laws: Regulations that prevent monopolistic practices and ensure fair competition.b. Securities Laws: Regulations related to the sale and purchase of company shares.c. Tax Laws: Laws governing the tax implications of M&A transactions.d. Contract Law: The creation of legally binding agreements outlining the terms of the transaction.

3. Due Diligence:

  • Before entering into an M&A transaction, parties engage in due diligence to assess the financial, legal, and operational aspects of the target company. This process helps identify potential risks and liabilities.

4. Types of M&A Transactions:

  • M&A transactions can take various forms, including:a. Horizontal Merger: Two companies in the same industry and at the same stage of the production process combine (e.g., two competing retail chains merging).b. Vertical Merger: Companies in different stages of the production process or supply chain merge (e.g., a car manufacturer acquiring a tire company).c. Conglomerate Merger: Companies from unrelated industries merge (e.g., a technology company acquiring a food and beverage company).

5. Legal Consequences of M&A Transactions:

  • M&A transactions have several legal consequences, including:a. Change in Ownership: The acquiring company gains control of the target company’s assets, liabilities, and operations.b. Transfer of Contracts: Existing contracts with customers, suppliers, and employees may be transferred to the acquiring company.c. Compliance with Regulations: Ensuring the transaction complies with relevant laws and regulations.d. Notification to Shareholders: Informing shareholders of the proposed transaction and seeking their approval.e. Antitrust Review: Government authorities may review the transaction for potential antitrust violations.

6. Example of M&A Transaction:

  • Company A, a leading technology company, decides to acquire Company B, a smaller software development startup. The transaction involves Company A purchasing all of Company B’s shares. After the acquisition, Company B becomes a subsidiary of Company A, and its employees, intellectual property, and customer contracts are integrated into Company A’s operations.

7. Antitrust and Competition Laws:

  • Antitrust laws are critical in M&A transactions to prevent anticompetitive behavior and protect market competition. Government authorities, such as the Federal Trade Commission (FTC) in the United States, review M&A transactions to ensure they do not lead to monopolistic practices or hinder fair competition.
  • Example: If a large pharmaceutical company seeks to acquire a smaller competitor that produces a similar drug, antitrust authorities may review the transaction to determine if it would result in a harmful concentration of market power.

8. Securities Laws:

  • Securities laws govern the sale and purchase of company shares in M&A transactions. Publicly traded companies must adhere to regulations, such as the Securities Exchange Act, which requires disclosure of material information to shareholders and the public.
  • Example: In a merger between two publicly traded companies, the acquiring company must issue a proxy statement to its shareholders, providing detailed information about the transaction and its potential impact.

9. Tax Implications:

  • M&A transactions can have significant tax implications. Parties must consider the tax treatment of the transaction, including capital gains taxes, and structure the deal to minimize tax liabilities.
  • Example: To reduce tax liabilities, parties may choose to structure the transaction as an asset purchase rather than a stock purchase, which can result in different tax consequences.

10. Legal Advisors:

  • Legal professionals, including M&A attorneys and financial advisors, play a critical role in M&A transactions. They assist in structuring the deal, conducting due diligence, and ensuring compliance with relevant laws and regulations.

In summary, mergers and acquisitions are complex transactions governed by a legal framework that includes antitrust and competition laws, securities laws, tax laws, and contract law. These transactions can take various forms and have significant legal and financial consequences for the parties involved. Legal professionals are instrumental in guiding businesses through the M&A process, ensuring compliance with laws and regulations, and protecting the interests of both the acquiring and target companies.

Dispute Resolution

  1. Litigation and Dispute Resolution: Disputes may arise in the course of business, and litigation is the process of resolving these disputes in court. Alternatives to litigation include arbitration and mediation. Legal issues in this area can involve breach of contract, partnership disputes, intellectual property infringement, and more. Effective dispute resolution is essential to protect a business’s interests and ensure ongoing operations.
  2. Dispute Resolution: When disputes arise in the course of business, whether with partners, suppliers, customers, or employees, business law attorneys represent their clients’ interests. They may engage in negotiations, alternative dispute resolution methods like mediation or arbitration, or, if necessary, litigation in court to resolve these disputes.

Dispute Resolution Law

Dispute resolution law is a crucial component of business law that encompasses various methods for resolving conflicts and disputes that may arise in commercial transactions and business relationships. Effective dispute resolution is essential for maintaining business relationships, minimizing legal costs, and ensuring fair outcomes.

1. Overview of Dispute Resolution:

  • Dispute resolution encompasses processes and mechanisms used to resolve conflicts, disputes, and disagreements. It includes both informal and formal methods of resolving disputes.

2. Methods of Dispute Resolution:

  • Business dispute resolution can take various forms, including:
  • a. Negotiation: Parties involved in a dispute engage in discussions to reach a mutually acceptable agreement. It is the most informal form of dispute resolution.
  • b. Mediation: A neutral third party (the mediator) helps the disputing parties reach a resolution. The mediator facilitates communication and assists in finding common ground.
  • c. Arbitration: Parties present their cases to a neutral arbitrator who renders a binding or non-binding decision, depending on the arbitration agreement.
  • d. Litigation: Legal action initiated in a court of law, where a judge or jury makes a final determination on the dispute.

3. Contractual Dispute Resolution Clauses:

  • Many business contracts include dispute resolution clauses that specify the method for resolving disputes between the parties. These clauses may require negotiation, mediation, or arbitration before litigation.
  • Example: A software development contract may include a clause stating that any disputes between the client and the developer must be resolved through mediation before pursuing litigation.

4. Legal Consequences of Dispute Resolution Methods:

  • The choice of dispute resolution method can have significant legal consequences, including:a. Binding vs. Non-binding: Arbitration can result in binding decisions that are enforceable by law, while mediation typically results in non-binding agreements that parties voluntarily agree to follow.b. Time and Cost: Litigation can be time-consuming and expensive, while negotiation and mediation are often faster and more cost-effective.c. Confidentiality: Mediation and arbitration proceedings are generally confidential, while court proceedings are typically public.

5. Example of Dispute Resolution in Business:

  • Two companies, Company A and Company B, are parties to a supply contract. A dispute arises when Company A alleges that Company B did not deliver goods as specified in the contract. The contract contains a dispute resolution clause requiring mediation before litigation. The companies engage in mediation and reach a settlement where Company B agrees to compensate Company A for the goods.

6. Alternative Dispute Resolution (ADR):

  • ADR refers to methods of dispute resolution other than litigation. It includes negotiation, mediation, and arbitration. ADR methods are often preferred in business disputes because they can be more efficient and less adversarial than litigation.
  • Example: In a real estate transaction, the buyer and seller may choose arbitration as the method of dispute resolution in case disagreements arise regarding property condition or pricing.

7. Court Litigation:

  • While ADR methods are often preferred, litigation in a court of law remains an option when disputes cannot be resolved through negotiation, mediation, or arbitration.
  • Example: If a company believes it has been harmed by a competitor’s unfair business practices, it may file a lawsuit seeking damages and injunctive relief in court.

8. Role of Legal Professionals:

  • Legal professionals, including attorneys specializing in dispute resolution, play a significant role in guiding businesses through the dispute resolution process. They provide legal advice, represent clients in negotiations and mediations, prepare cases for arbitration or litigation, and ensure compliance with relevant laws and regulations.

9. International Dispute Resolution:

  • In international business transactions, disputes may arise between parties from different countries. International dispute resolution mechanisms, such as international arbitration, provide a framework for resolving cross-border disputes.
  • Example: An international construction contract may specify that disputes be resolved through arbitration under the rules of the International Chamber of Commerce (ICC).

10. Enforceability of Decisions:

  • Decisions and agreements resulting from dispute resolution processes can be legally enforceable. For example, arbitration awards can be enforced through court orders, and mediated settlement agreements can be binding contracts.

In summary, dispute resolution is a critical aspect of business law that allows parties to resolve conflicts and disagreements through negotiation, mediation, arbitration, or litigation. The choice of dispute resolution method can have significant legal consequences, impacting time, cost, confidentiality, and enforceability. Legal professionals specializing in dispute resolution play a crucial role in assisting businesses in choosing the most appropriate method and guiding them through the resolution process while ensuring compliance with applicable laws and regulations. Effective dispute resolution is essential for preserving business relationships, reducing legal costs, and achieving fair and efficient outcomes.

Risk Management

  1. Consumer Protection: Consumer protection laws are designed to prevent businesses from engaging in fraud or specified unfair practices. This area of law covers issues such as product liability, deceptive advertising, and warranty law. Businesses must ensure that their practices are in accordance with consumer protection regulations to avoid litigation and regulatory scrutiny.
  2. Risk Management: Business attorneys assess legal risks that a business may face and provide advice on how to mitigate these risks. They help implement risk management strategies to protect the company from potential legal liabilities.
  3. International Trade: Businesses engaged in international trade must navigate a complex web of laws and treaties governing cross-border transactions. This includes issues related to tariffs, export and import controls, customs classifications, and international contract law. Navigating these laws requires an understanding of both domestic and international legal frameworks.

Each business’s needs will vary, and not all business law attorneys handle every one of these areas, so it’s important to seek out a lawyer or firm that’s a good fit for the specific needs and challenges of your business.

Risk Management Law

Risk management is a critical aspect of business law that involves identifying, assessing, and mitigating risks that businesses may encounter in their operations. Effective risk management is essential for protecting a company’s assets, reputation, and financial stability.

1. Overview of Risk Management:

  • Risk management in business involves the systematic process of identifying, assessing, prioritizing, and mitigating risks to achieve business objectives while minimizing negative outcomes.

2. Types of Risks in Business:

  • Businesses face various types of risks, including:a. Operational Risks: Risks related to day-to-day business activities, such as supply chain disruptions or equipment failures.b. Financial Risks: Risks associated with financial decisions, including currency fluctuations, interest rate changes, and credit risk.c. Compliance and Legal Risks: Risks related to non-compliance with laws and regulations, potential lawsuits, and regulatory penalties.d. Reputation Risks: Risks that could damage a company’s reputation, such as public relations crises or product recalls.

3. Legal Framework for Risk Management:

  • The legal framework for risk management in business is multifaceted and includes various laws and regulations:a. Contract Law: Governs the creation and enforcement of contracts that can allocate risks between parties.b. Tort Law: Addresses liability for negligent acts or wrongful conduct that can lead to legal claims.c. Insurance Law: Governs the purchase and use of insurance policies to mitigate risks.d. Corporate Governance: Sets out principles and regulations for corporate decision-making and risk oversight.

4. Risk Identification and Assessment:

  • Identifying and assessing risks involve recognizing potential hazards and evaluating their impact and likelihood. Businesses use risk assessments to prioritize and manage risks effectively.
  • Example: A manufacturing company identifies the risk of product defects that could result in lawsuits, recalls, and reputational damage. They assess the likelihood and potential financial impact of this risk.

5. Risk Mitigation:

  • Risk mitigation strategies aim to reduce the impact or likelihood of identified risks. These strategies can include:a. Risk Transfer: Shifting risk to another party through contracts or insurance policies.b. Risk Avoidance: Ceasing certain activities or investments to eliminate a specific risk.c. Risk Reduction: Implementing measures to reduce the likelihood or impact of risks, such as safety protocols or cybersecurity measures.

6. Example of Risk Mitigation:

  • A technology company implements cybersecurity measures, including firewalls and data encryption, to reduce the risk of data breaches and protect sensitive customer information.

7. Compliance and Legal Risks:

  • Compliance with laws and regulations is a fundamental aspect of risk management. Non-compliance can result in legal consequences, such as fines, lawsuits, or reputational damage.
  • Example: A financial institution must comply with anti-money laundering (AML) regulations to prevent illegal financial activities. Failure to do so can lead to regulatory fines and legal action.

8. Insurance in Risk Management:

  • Insurance is a vital tool in risk management that helps businesses transfer certain risks to insurers. Types of insurance policies may include:a. Liability Insurance: Protects against legal claims and liabilities.b. Property Insurance: Covers damage or loss of physical assets.c. Cybersecurity Insurance: Provides coverage for data breaches and cyber-related risks.

9. Legal Consequences of Inadequate Risk Management:

  • Inadequate risk management can lead to legal consequences, such as financial losses, lawsuits, regulatory fines, and damage to a company’s reputation.
  • Example: A pharmaceutical company faces lawsuits and regulatory penalties after failing to adequately test a drug for potential side effects, resulting in harm to patients.

10. Role of Legal Professionals:

  • Legal professionals, including attorneys specializing in risk management and compliance, play a critical role in helping businesses navigate complex legal requirements and develop effective risk management strategies. They provide legal advice, draft contracts, and assist with compliance efforts to mitigate legal risks.

In summary, risk management is an integral part of business law that involves identifying, assessing, and mitigating risks to protect a company’s interests. Legal frameworks, including contract law, tort law, and insurance law, provide the foundation for managing risks effectively. Failure to implement robust risk management strategies can lead to legal consequences, financial losses, and damage to a company’s reputation. Legal professionals are essential in guiding businesses through the process of identifying, assessing, and mitigating risks while ensuring compliance with relevant laws and regulations.

Matters for Business Attorneys

Business law attorneys specialize in the laws related to the running and operation of a business. They can provide valuable assistance in a wide range of matters, from the formation of a company to handling daily governance issues, dealing with legal disputes, and even business cessation or sales.

In summary, business law attorneys are essential for businesses of all sizes and industries. They offer valuable legal counsel, navigate complex regulations, protect intellectual property, facilitate business transactions, and represent clients in legal disputes. The specific services a business attorney provides can vary based on the unique needs and challenges of each business, making it essential to select an attorney or law firm with expertise in the relevant areas of business law that apply to your particular situation.

Select Business Law Cases

“Whether parties have reached a contractual agreement and on what terms are
questions for the fact finder when conflicting versions of the parties’ negotiations
require a determination of credibility.” (Hebberd-Kulow Enterprises, Inc. v.
Kelomar, Inc. (2013) 218 Cal.App.4th 272, 283 [159 Cal.Rptr.3d 869].)

  • “Whether a contract is illegal or contrary to public policy is a question of law tobe determined from the circumstances of each particular case.” (Jackson v.
    Rogers & Wells (1989) 210 Cal.App.3d 336, 349–350 [258 Cal.Rptr. 454].)
  • “In order for acceptance of a proposal to result in the formation of a contract, the proposal ‘must be sufficiently definite, or must call for such definite terms in the acceptance, that the performance promised is reasonably certain.’ [Citation.]” (Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 811 [71
    Cal.Rptr.2d 265].)
  • “Whether a contract is sufficiently definite to be enforceable is a question of law for the court.” (Ladas v. California State Automobile Assn. (1993) 19
    Cal.App.4th 761, 770, fn. 2 [23 Cal.Rptr.2d 810].)
  • “Consideration is present when the promisee confers a benefit or suffers a
    prejudice. Although ‘either alone is sufficient to constitute consideration,’ the
    benefit or prejudice’ “ ‘must actually be bargained for as the exchange for the promise.’ ” ’ ‘Put another way, the benefit or prejudice must have induced the promisor’s promise.’ It is established that ‘the compromise of disputes or claims asserted in good faith constitutes consideration for a new promise.’ ” (Property California SCJLW One Corp. v. Leamy (2018) 25 Cal.App.5th 1155, 1165 [236 Cal.Rptr.3d 500], internal citations omitted.)
  • “[T]he presumption of consideration under [Civil Code] section 1614 affects the burden of producing evidence and not the burden of proof.” (Rancho Santa Fe Pharmacy, Inc. v. Seyfert (1990) 219 Cal.App.3d 875, 884 [268 Cal.Rptr. 505].)
  • “Being an affirmative defense, lack of consideration must be alleged in answer to the complaint.” (National Farm Workers Service Center, Inc. v. M. Caratan, Inc. (1983) 146 Cal.App.3d 796, 808 [194 Cal.Rptr. 617].)
  • Wage and hour claims are governed by two sources of authority: the provisions of the Labor Code and a series of wage orders, adopted by the Industrial Welfare Commission. All of the wage orders define hours worked as “the time during which an employee is subject to the control of an employer, and includes all the time the employee is suffered or permitted to work, whether or not required to do so.” (Hernandez v. Pacific Bell Telephone Co. (2018) 29 Cal.App.5th 131, 137 [239 Cal.Rptr.3d 852]; see, e.g., Wage Order 4-2001, subd. 2(K).) The two parts of the definition are independent factors, each of which defines whether certain time spent is compensable as “hours worked.” Thus, an employee who is subject to an employer’s control does not have to be working during that time to be compensated. (Morillion v. Royal Packing Co. (2000) 22 Cal.4th 575, 582–584 [94 Cal.Rptr.2d 3, 995 P.2d 139].) Courts have identified various factors bearing on an employer’s control during on-call time. However, what qualifies as hours worked is a question of law. (Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833, 838−840 [182 Cal.Rptr.3d 124, 340 P.3d 355].) Therefore, the jury should not be instructed on the factors to consider in determining whether the employer has exercised sufficient control over the employee during the contested period to require compensation.
  • “ ‘The elements of a cause of action for negligence are well established. They are “(a) a legal duty to use due care; (b) a breach of such legal duty; and the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d 496].)
  • “Breach is the failure to meet the standard of care.” (Coyle v. Historic Mission
    Inn Corp. (2018) 24 Cal.App.5th 627, 643 [234 Cal.Rptr.3d 330].)
  • “The element of causation requires there to be a connection between the
    defendant’s breach and the plaintiff’s injury.” (Coyle, supra, 24 Cal.App.5th at p. 645.)

California Business Law Codes

California Business & Professions Code




DIVISION 2. HEALING ARTS [500 – 4999.129]


DIVISION 4. REAL ESTATE [10000 – 11506]








DIVISION 10. Cannabis [26000 – 26325]

California Commercial Code



DIVISION 2. SALES [2101 – 2801]




DIVISION 6. BULK SALES [6101 – 6111]





DIVISION 11. FUNDS TRANSFERS [11101 – 11507]





California Labor Code









DIVISION 6. The Promote Ownership by Workers for Economic Recovery Act [10000 – 10010]

California Corporations Code


TITLE 1. CORPORATIONS [100 – 14631]

TITLE 2. PARTNERSHIPS [15800 – 16962]



TITLE 4. SECURITIES [25000 – 31516]

TITLE 10. REPEALS [100000 – 100008]

California Revenue and Taxation Code



DIVISION 2. OTHER TAXES [6001 – 61050]

business law lawyer attorney contract organization formation employment IP intellectual property patents litigation money employments

Common Business Law Issues

In addition to other Business law, negotiations, and contracting, John Jensen has experience in (i) business formation, start-up, and capitalization issues, including Internet or on-line businesses; and (ii) fine art, museum, gallery contracts, intellectual property negotiations, and art law.

Business law in California involves multiple legal disciplines and can include aspects of contract law, employment law, intellectual property, securities law, antitrust, taxation, bankruptcy, and more.

Business law is designed to provide a framework within which businesses can operate in a fair and predictable manner.

  1. Choosing Correct Business Formation and Structure:
    • Laws concerning the establishment of a business entity, such as corporations, limited liability companies (LLCs), partnerships, and sole proprietorships.
    • Requirements for articles of incorporation, bylaws, and operating agreements.
    • The regulatory framework for the governance of business entities.
  2. Writing Clear and Favorable Contracts:
    • The clear drafting, review, and enforcement of business contracts that contain favorable terms is essential.
    • Understanding the elements of a legally binding contract, including offer, acceptance, consideration, and mutual assent.
  3. Abiding By Requirements in Employment Law:
    • Knowing and Following the rules governing the employer-employee relationship, including wage and hour laws, anti-discrimination laws, and workplace safety regulations.
    • Writing favorable and fair employment agreements, employee handbooks, and independent contractor agreements.
  4. Correctly Acquiring and Managing Intellectual Property (IP):
    • The protection and enforcement of trademarks, copyrights, patents, and trade secrets.
    • Licensing agreements and IP litigation.
  5. Taxation:
    • Federal and state tax obligations.
    • Structuring business transactions to minimize tax liabilities.
  6. Real Estate:
    • Laws governing the purchase, sale, and lease of commercial property.
    • Zoning and land use regulations.
  7. Creditor and Bankruptcy Law:
    • Laws that provide for how businesses deal with debt and insolvency.
    • Processes for restructuring or discharging debts through bankruptcy proceedings.
  8. Consumer Protection:
    • Laws and regulations that protect consumers from fraud, unfair business practices, and defective products.
  9. Environmental Law:
    • Regulations that govern the impact of business operations on the environment.

Common Business Law Issues

Issues in Business Law:

  1. Disputes over Contract Terms:
    • Conflicts may arise regarding the interpretation or fulfillment of contract terms, leading to litigation or arbitration.
  2. Compliance with Regulations:
    • Ensuring that a business is in compliance with all applicable local, state, and federal laws can be complex, especially for businesses operating across state or national borders.
  3. Employment Issues:
    • Disputes involving wrongful termination, discrimination, wage and hour laws, and workplace safety.
  4. Intellectual Property Infringement:
    • Disagreements over the use or misuse of trademarks, copyrights, or patents can lead to legal action.
  5. Partnership and Shareholder Disputes:
    • Conflicts between partners or shareholders, especially in closely held businesses, can arise regarding the direction of the business, distribution of profits, or other governance issues.
  6. M&A Challenges:
    • Legal issues that arise during mergers and acquisitions, including antitrust concerns, due diligence problems, or disputes after closing.
  7. Tax Disputes:
    • Controversies with tax authorities over tax assessments, audits, and the classification of activities for tax purposes.
  8. Bankruptcy and Insolvency:
    • Navigating the bankruptcy process, including the protection of creditors’ rights and the restructuring of debts.
  9. Consumer Complaints and Litigation:
    • Dealing with claims of product liability, deceptive trade practices, or breach of warranty.
  10. Data Privacy and Cybersecurity:
    • Addressing the legal aspects of protecting sensitive business and customer data in compliance with privacy laws.

Business law in California is constantly evolving, as new legislation and court decisions shape the legal landscape. Companies must stay informed and compliant with the latest developments to avoid legal pitfalls and to safeguard their interests.

Los Angeles business lawyer attorney
Los Angeles business lawyer attorney  John Michael Jensen