Business Practice Areas and Legal Definitions

Business Contracts:
Business contracts are written agreements spanning a broad range of the business relationships that occur in the life of a typical company.  They can include non-compete agreements, non-piracy agreements, non-disclosure agreements, restrictive covenants, employment agreements, producer agreements, sales representative agreements, consulting agreements, management agreements, franchise agreements, licensing agreements, deferred compensation agreements and independent contractor agreements.

Contracts are the very stuff upon which the marketplace is founded, and they provide the basis for a large share of business litigation.  The remedies for breach of contract include money damages and injunctive relief expressly directing one of the parties to perform a contractual obligation.  This remedy involves a form of injunction called a “specific performance” decree.  The remedy of specific performance is often called an “extraordinary” equitable remedy, in that courts will not grant specific performance except in a sharply limited number of circumstances.  Punitive damages are not an available remedy in a contract lawsuit.

Business Litigation:
Business litigation is the area of law that provides assistance in the preparation and presentation of a lawsuit or other resort to the courts to determine a legal question or matter in business situations.  Business can be any activity or enterprise entered into for profit, usually a company, a corporation, partnership or any such formal organization.  Business lawyers advise and represent businesses and financial institutions in such areas as business torts, class actions, complex contracts, financial forensics, government investigations, international dispute resolution, professional relations, real estate disputes, securities and antitrust, technology and intellectual property, professional malpractice, shareholder and corporate governance and telecommunications.  Business lawyers place an emphasis on achieving or defending against pre-judgment remedies, including pre-judgment orders for writs of possession, attachments, temporary restraining orders, and injunctions, as well as arbitration or mediation settlements and monetary compensation resulting from lawsuits.  Transactional business lawyers represent clients in matters relating to, but not limited to, organizational, operational and contractual documents for corporations, partnerships and limited liability companies, commercial transactions, mergers, real estate acquisitions, leasing and development and commercial financing.

Business and Corporate Services:
Business and corporate services involves advising companies and investors in the purchase, sale and mergers of businesses.  The services provided include forming and funding start-up companies, buying and selling practices, assets, divisions and companies, engaging in private stock offerings and re-sales, structuring venture capital financing, forming off-shore sales and sourcing entities, structuring commercial and partnering transactions and syndicating real property acquisitions.

Labor Laws:
Historically, labor laws have focused on such matters as eliminating unsafe workplace conditions, securing a living wage for employees, and eliminating, or at least, tempering the strife that often occurs between employee and employers. Since the appearance of organized labor, laws have established collective bargaining rights, and have sought to prevent either employers or employees, individually or through associations or unions, from engaging in unfair labor practices. It is well-established, by various statutes, that both sides to a labor dispute are legally required to engage in good faith collective bargaining. Modern labor laws also address such complex and often emotionally charged issues as strikes, picketing, mutual injunctive relief and lockouts.

Labor and Employment attorneys can help employers with the following:

• Reviewing client employee handbooks, manuals and policy statements
• Assisting with federal and state wage and hour law issues and claims
• Representing employers before the Equal Employment Opportunity Commission (EEOC) and state human rights agencies
• Providing advice on issues involving National Labor Relations Board (NLRB) representation and elections including campaign assistance
• Representing employers in unfair labor practice proceedings before the National Labor Relations Board and state labor agencies
• Providing representation for grievance and arbitration hearings under collective bargaining agreements
• Collective bargaining on behalf of clients including strategic planning and acting as spokesperson
• Counseling on issues related to strikes or lockouts and providing related litigation support

Employment Law:
Employment law is a well-established body of statutes and judicial decisions covering all rights and obligations within the employer-employee relationship, including current employees, job applicants and former employees. It covers a wide range of legal issues, ranging from employment discrimination and wrongful termination to matters involving wages and workplace safety. Many employment law issues are governed by applicable federal and state employment law, but a number of issues are determined according to basic contract law.

Sexual Harassment:
Sexual harassment is any unwanted and unwelcome sexual behavior. It involves a broad range of conduct, including such verbal harassment as derogatory comments, explicit sexual comments and descriptions of sexual exploits, leering or requesting sexual favors. The term also describes physical harassment, ranging from inappropriate touching to outright sexual assault. In order to be classified as illegal the conduct in question must be both unwelcome and offensive to the victim.

Sexual harassment is a form of sexual discrimination, prohibited in employment settings under Title VII of the Civil Rights Act of 1964. Title IX of the 1972 Education Act makes sexual harassment in schools or other educational settings unlawful. The Federal Fair Housing Act also provides protection against sexual harassment, and most states have enacted legislation making it unlawful.

Defamation:
Defamation is the communication of a false and unprivileged statement that exposes another to hatred, contempt, or ridicule, or which causes him or her to be shunned or avoided, or which has a tendency to injure him or her in his or her trade or occupation.  The defamatory statement must be communicated to someone other than the person to whom it refers, and it must refer to a living person.  Defamation communicated verbally it is called Slander, but if it is communicated in writing, it is called Libel.  Most defamation litigation in the business arena concerns the employer’s “qualified privilege” to defame.  Under this concept, employers and former employers are often protected from liability for defaming employees or former employers.  By its very definition, however, the privilege is “qualified,” and not absolute.  It is generally limited to situations in which the employer or former employer is making a good faith communication of information to someone who has a legitimate interest in receiving it.

Breach of Fiduciary Duty:
The formation of a "fiduciary relationship" begins when someone places special confidence and trust in another who has substantially superior knowledge and training, and also relies on that person to act in his or her best interest.  If this trust is knowingly and voluntarily accepted, a “fiduciary” relationship is said to exist.  This places a legal duty on the stronger of the two to act diligently in the best interest of the weaker party and never, under any circumstances to secure any advantage at the weaker party’s expense.  There are a limited number of circumstances in business transactions where a fiduciary relationship comes into play.  Courts tend to rigorously enforce fiduciary duties, and in the event of a willful breach often award punitive damages as well as compensatory damages.  Some common examples of fiduciary relationships are a trustee-beneficiary relationship, a doctor-patient relationship, a lawyer-client relationship and a corporate officer-stockholder relationship.

Sales Commission Disputes:
In avoiding sales commission litigation there is no substitute for an artfully drafted agreement spelling out precisely how and at what rate sales representatives are to receive commissions.  Common usage and custom are also taken into consideration by courts in determining the issues, even where there is a written agreement.

Trade Secrets:
A trade secret is any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.  Trade secret difficulties can be eliminated or, at least, minimized by effective legal language in employment and/or severance agreements, but situations will still arise from time to time where litigation presents the only viable solution.

Real Estate Practice Areas and Legal Definitions
Real Estate Financing and Transactional Services:
Typically, as they expand, growing businesses become more and more involved in real estate transactions, ranging from office space to retail store properties to warehouses and shopping mall syndication.  A qualified business lawyer can provide valuable assistance in traditional real estate purchase, sale and leasing transactions, and in dealing with environmental and various other issues arising out of industrial and agricultural redevelopment projects.

Real Estate Negotiations:
In major financial transactions, especially those involving real estate properties, it’s important to have a knowledgeable negotiator working for you, one who knows the law and whose loyalty to you is undivided.  Real estate brokers and agents depend on sales commissions for their livelihood.  If the sale does not occur they receive nothing for their time and energy, and this can create a conflict of interest.  You need someone representing you who is less concerned about a particular sale going through than with making certain your legal rights are protected.

Quiet Title Matters:
Sometimes a particular piece of real property has title defects of such significance that no sale or other transfer of ownership can occur until they are resolved.  The usual method of clearing title defects is a lawsuit called a “Quiet Title” action.  In the Quiet Title action, the Court would receive and consider evidence on the issue, and if satisfied that the judgment had been discharged, would issue an order dissolving (removing) the judgment lien.

Construction Liens:
When doing building construction or repairs, building contractors often utilize a legal device called a “construction lien” as a means of making certain they will be paid for their labor and materials.  The creation of a lien involves written notice to the owner of the property and other formal requirements, and its enforcement is subject to strict procedural rules. Once a valid lien attaches to the property, however, it operates as a claim against the property which, if it remains unpaid, can ultimately result in foreclosure proceedings.

Real Estate Document Preparation:
Whatever may be said during real estate negotiations, whatever promises may have been made, it is the final written documents that will control what happens.  Many of the closing documents involve the completion of pre-printed forms, but sometimes the details of a particular transaction require modification of a form to provide adequate protection.  Your real estate attorney can either prepare all of the documents, or can review the documents that have been prepared, explaining them to you and suggesting changes, as needed, for your benefit.

Closing Attorney Representation:
The majority of transactions are concluded routinely, with no unanticipated problems and as it may well appear after the fact, no need for legal representation during the closing.  There is no legal requirement for representation by counsel at the closing, but most lenders and prudent investors will do so.  It is at closing that critical disputes often arise concerning the language in a particular clause or some other technical aspect of the transaction.

Sales Breach Issues:
Once a written agreement has been executed by both parties to a real estate transaction its provisions are legally binding.  Which judicial remedies, if any, may be available for the breach of the agreement depends on a variety of factors.  There may, for example, be remedies available to the Buyer if the Seller breaches that are not available to the Seller, if the Buyer is the breaching party.

Land Development Issues:
Land development projects grow more difficult and complex with each passing year.  Your real estate lawyer can guide you through the labyrinth of zoning regulations, environmental agency requirements, building, fire and safety codes and the various other requirements for doing business in this complicated field of real estate.

Foreclosure Issues:
When mortgage payments fall behind, the lender may ultimately take steps to foreclose.  Sometimes the best course is to seek temporary relief in the United States Bankruptcy Court.  Since the mortgage is a “secured” debt, it cannot be discharged in bankruptcy.  The filing of a bankruptcy petition triggers an automatic federal court order temporarily staying (suspending) any pending foreclosure sale.  With the additional time provided by the stay, the defaulting borrower can often make arraignments to sell the real property for a much higher price than would be obtained in a foreclosure sale.

Essentially, a foreclosure sale involves sale of the real estate at public auction.  The proceeds of the sale are then applied against the debt owed on the mortgage.  Any funds remaining after the mortgage (and the foreclosure costs) are paid will be transferred to the defaulting borrower.  What happens when the proceeds of the auction sale are insufficient to pay off the mortgage and/or the foreclosure costs depends on the law where the property is located.

Eminent Domain Proceedings:
Eminent Domain proceedings are used by governmental agencies to acquire real estate (even when the owner doesn’t want to sell it) for use in a project of some kind for the general public benefit.  A recent decision by the United States Supreme Court has greatly expanded the discretion of state and local governments to seize property, even when they do so for the benefit of a private company, if they feel the project contemplated by the private company will benefit the public.  In mounting a defense to an eminent domain action, the landowner can resist the seizure itself, and can also challenge the dollar amount the agency is willing to pay for the land.  The landowner in an eminent domain proceeding is entitled to the fair market value of the land.

1031 Exchanges:
Internal Revenue Service Code §1031 provides a means for deferring the capital gains tax consequences of a real estate transaction when the proceeds of sale from one transaction are to be promptly reinvested in another similar type property.  The key word here is “deferral".  What happens is that the tax basis of the old property is transferred to the new, so that when the new property is ultimately sold, the tax will be due.  Of course, if the second property is also sold under a 1031 exchange, the tax will be deferred yet again.


If you or someone you know in Ohio needs the assistance of an experienced Columbus Business Lawyer, call Attorney James Schottenstein today at 866-435-0726, or complete the contact form provided on this site to schedule your free consultation.

If you or someone you know in Ohio needs the assistance of an experienced Columbus Business Lawyer, call Attorney James Schottenstein today at 866-435-0726, or complete the contact form provided on this site to schedule your free consultation.

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