Practice Areas and Legal Definitions

Business Formation:
There really isn’t any need for legal counsel in forming a sole proprietorship, but other forms of business organization are a good deal more complicated and are best accomplished with the assistance of a lawyer. These include the formation of partnerships, limited liability companies and corporations.

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.

Business Law:
Business law is a broad category that encompasses the rules and requirements for all phases of a business’s life, from its creation, then all of the activities during its life and, finally, its termination. The creation of a business includes the decision whether to form the business as a sole proprietorship, a partnership, a limited liability company, a corporation or some other type of entity, or whether to set up as a nonprofit.

The activities during a business’s life include managing the various relationships that a company might have with its employees, customers, vendors, stockholders, bankers, the government and the public. Businesses also, of course, raise capital; keep records; file business and tax forms; hire employees; market and advertise their goods or services; merge with, acquire and/or sell other businesses; and a host of related activities.

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.

Franchises and Other Types of Business Marketing:
A great many small businesses in the marketplace today are operated not as purely independent businesses, but as franchises, distributorships, or any of various types of licensing arrangements. All of these businesses are created through written agreements containing express and implied warranties, and it is not uncommon for issues to arise resulting in litigation.

Licensing and Commercial Contracts:
Business services attorneys counsel clients in a wide range of commercial and intellectual property (IP) transactions. They provide assistance in structuring, drafting, reviewing and negotiating commercial and IP agreements related to the development, acquisition and commercialization of technology, IP, goods or services. The types of agreements involved in these transactions include:

• Software license, maintenance and support, source code escrow, end user license, patent and other technology license agreements
• Development agreements
• Purchase and supply agreements
• Manufacturing agreements
• Distribution, reseller, value-added reseller (VAR)and original equipment manufacturer (OEM) agreements
• Referral, marketing agreements
• Employment, consulting, technical services and outsourcing agreements
• Joint venture, strategic partner, technology transfer agreements
• E-commerce and Internet-related agreements (including web-based hosting agreements, application service provider (ASP) agreements, web site development, privacy policies and website terms of use)
• Non-disclosure agreements

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.

Contract Remedies:
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.

Employment Law:
Employment law is a growing and ever-changing body of state and federal statutes, rules, regulations, ordinances, judicial precedents and administrative rulings touching on the legal rights and obligations of employers and employees, and of their respective affiliated organizations. One or another aspect of employment law affects virtually every facet of commercial activity in the modern marketplace.

Fraud:
This is another area that often overlaps with criminal law. In the civil business litigation arena, the proof requires a showing that the defendant made a false statement, intending that the plaintiff rely upon it. There must also be a showing that the plaintiff did, in fact, rely upon it, and that the plaintiff suffered damages as a result. Punitive damages are commonly awarded to successful plaintiffs in fraud cases.

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.

Alternative Dispute Resolution:
Business disputes can be resolved traditionally, by way of litigation. This involves the filing of a lawsuit in court that is then answered by the defendant. Over a period of months and sometimes even years, a lawsuit makes its way through the system, ultimately to be decided by a judge sitting alone, or by a jury, presided over by a judge. It is an expensive, tedious and time-consuming process of which Winston Churchill once said "Our judicial system is simply awful. It is so awful, in fact, that the only good thing that can be said about it is that it is better than all the others."

The modern trend in the economic world is away from the courthouse in favor of one or the other of two less formal, less expensive, faster and more efficient methods of conflict resolution, called "mediation" and "arbitration."

Mediation:
Mediation is one form of Alternative Dispute Resolution that is gaining in popularity in business litigation matters. In this process the parties jointly select a mediator, usually a lawyer known by both sides to be honest and fair and, more importantly, known to have experience with the type of issues involved in the mediation.

Each side submits written factual summaries to the mediator, together with any legal citations that seem appropriate. Then there is a meeting, usually at the mediator's office. The mediator meets first with both sides, inquiring whether or not there has been any progress toward settlement, and if so, he or she may invite the parties to use his office to discuss the matter further. If they decide to do that the mediator usually leaves the room for a time, to give both sides a chance to communicate freely.

Upon returning, if the parties have not reached any agreement, the mediator will meet with one side separately, commenting on that side's factual summary and legal citations, expressing an opinion as to the probable outcome if the issues are litigated, and finally, making a recommendation with regard to settlement. Then the mediator meets with the other side, separately, and repeats the process.

The mediator gives both sides an opportunity to meet with their respective attorneys and discuss the mediator's interpretation of the case and settlement recommendations. Then all come together again and the mediator attempts to urge both sides toward a common ground of settlement approximating the recommendation he or she has made.

Frequently, the parties will reach a settlement agreement, either on the terms recommended or upon some other and different terms. If not, well, the process doesn't take very long, compared to litigation, and it certainly costs a great deal less. The mediator has no authority to impose a settlement, so the parties remain free to resolve their dispute in court.

Arbitration:
Arbitration is a method of Alternative Dispute Resolution.

In this process, the parties jointly select a lawyer to act as arbitrator. The idea is to choose someone with an outstanding reputation for personal and professional integrity, with heavy litigation experience involving cases similar to the one in which the parties are currently involved. The parties may select either "binding" or "non-binding" arbitration. Some lawyers discourage their clients from participating in "non-binding" arbitration, seeing futility in the expense and inconvenience of a process that may prove a waste of time. Other attorneys discourage their clients from participating in "binding" arbitration, so that their options are preserved in the event of an unreasonable adverse ruling by the arbitrator.

An arbitration is more like a trial than is a mediation. For one thing, in binding arbitration the arbitrator's decision is virtually the same as a judgment. In both types, however, the arbitrator actually renders a decision, as opposed to simply making a recommendation. Each side submits an arbitration brief, containing a summary of relevant facts, a list of the legal issues thought relevant, and reference to the applicable law. There is a hearing in the nature of a trial, but much less formal. It is usually held at the arbitrator's office. Sworn testimony may be offered, subject to cross-examination. The attorneys usually join in a stipulation agreeing that certain specified facts are not in dispute.

The rules of evidence are less rigorously applied in arbitration hearings than in trials. Sometimes the arbitrator announces a decision at the end of the hearing, but more often, the case is taken under submission by the arbitrator, the decision being communicated by letter to both sides within a week or two. The arbitration process takes a lot of pressure off the court system, and it has proven itself as an effective alternative method for the resolution of disputes.

If you or someone you know in Southern California needs the assistance of an experienced San Diego Business Attorney, call Gary Brenner today at 619-237-8899, or complete the contact form provided on this site to schedule your initial consultation.

Professional Profile

If you or someone you know in Southern California needs the assistance of an experienced San Diego Business Attorney, call Gary Brenner today at 619-237-8899, or complete the contact form provided on this site to schedule your initial consultation.

ADDRESS OF THE FIRM:
Gary Brenner, Attorney at Law
110 W C St Ste 1905
San Diego, CA 92101-3909
Telephone: 619-237-8899
Fax: 619-237-1802

MEMBERS OF THE FIRM:

Gary Brenner

EDUCATION:

• Juris Doctor Degree (JD) - University of San Diego School of Law
• Master of Business Administration Degree (MBA) – Northwestern Louisiana State University

JURISDICTIONS LICENSED IN:

• California
• U.S. District Court, Southern and Central Districts
• U.S. Court of Appeals 9th Circuit
• U.S. Tax Court

PROFESSIONAL MEMBERSHIPS AND ACHIEVEMENTS:

• Member of California Bar Association sections of business law and litigation
• Former EMTEK (Emerging Technologies) Fund loan committee member for the City of San Diego since inception
• Former Board of Director Southwest Technology Transfer Center non-profit corporation (in connection with NASA Far-West Regional Technology Transfer Center)
• Former Vice-Chair of the San Diego County Bar Arbitration Committee (1994-1996)
• Adjunct professor for Chapman University, San Diego Center – Managerial Finance, Economics, Accounting
• Served as a consultant for Prentice Hall, Business and Professional Division, re: professional business texts for management and other professionals regarding legal issues
• Lecturer for the United States Small Business Administration, SCORE workshops – legal aspects of starting and operating a business

PUBLICATIONS

• Co-authored Complete Handbook for the Entrepreneur, published by Prentice Hall in 1990: Authored the following topics: commercial leases, incorporation and partnership, employment contracts, trademarks, trade secrets, business planning, independent contractors, discrimination in the work place, legal aspects of a franchise, business insurance, corporate securities, license agreements, and buying and selling a business.