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Start with the proposition that anybody can be sued at any time for anything. One U.S. Senator even sued God in 2008. Obese children sued McDonald’s for making them overweight. It is easy to file a lawsuit; a person simply submits their complaint and the filing fee to the Clerk of the Court. The Clerk takes the money and files the lawsuit. The Clerk does not read or even care what the lawsuit says. That is for the Court to decide.
Getting sued can be scary, annoying, irritating, and frustrating, but understanding what to do when it happens can help you feel more prepared. Sometimes just comprehending the process will ensure success further down the road.
More often than not, your business will have a pretty strong idea that someone is planning to sue before they actually do. Many times, you may receive a demand letter complaining about something and commanding your business take some corrective action or pay money. The demand letter may or may not come from an attorney. At this pre-litigation stage, your business may benefit from early intervention and settlement conversations. Depending on the circumstance, it may make sense for your business to try to engage the complaining party and determine if the issues can be resolved before litigation ensues.
Take Active Steps to Preserve Evidence
Once your business becomes aware of the potential for a lawsuit, it is under a duty to preserve and protect records and evidence that relate to the dispute. This includes emails and text messages. Your business could suffer serious penalties if a Court later discovers that you intentionally destroyed documents pertinent to the dispute.
After Service of Lawsuit
If your business cannot resolve the matter by way of settlement, and the complaining party actually sues your business, your registered or statutory agent will receive the formal complaint. The Complaint will usually be personally delivered by a process server. The registered or statutory agent (if it is not you) should then send a copy of the Complaint to you.
It is imperative to review the formal Complaint thoroughly to understand what the allegations are. This way, you can have an educated conversation with your business’ legal representative about what is going on. Do not ignore the lawsuit even if you think it is false and your business did nothing wrong. There are strict timelines and deadlines for your business to respond. If you miss these deadlines, the plaintiff may be able to obtain a default judgment against your business. These are very difficult to set aside.
Contact Your Insurance Agent Immediately
Contact your insurance agent or the carrier as soon as you receive the lawsuit. When businesses fail to notify their carriers promptly about litigation, sometimes the insurance carrier may deny coverage.
It is possible that the business will have insurance coverage for the claims the plaintiff is making. This, of course, depends on your policies, coverages, and riders. Make sure the business’ insurance agent explores all current, as well as old policies. Some policies are claims based and some are occurrence based, so even if you terminated a policy, it may still cover you. Also, check with any trade associations in which your business is a member because the association may provide coverage. If the insurance carrier does provide coverage (even under a “reservation of rights”), it may assign a lawyer to defend the lawsuit. After your business pays the policy deductible, the insurance carrier may cover the business’ legal fees, investigation costs, any settlement during litigation, or even a final judgment against the business.
Contact the Business’ Attorney
As indicated above, there are some strict timeline to respond to a lawsuit. The business’ lawyer will need to act fairly quickly to ensure that the business answers or files a motion to dismiss within the timelines provided by the Rules of Civil Procedure. Also, the quicker the lawyer understands what is going on, the more time he or she will have to develop the business’ defenses, gather information, interview witnesses, and determine the appropriate legal strategy.
Make sure to tell your lawyer the full story, even if it is embarrassing. The business is protected by the attorney-client privilege, but there is nothing worse than a lawyer learning of bad facts and not having time or the ability to defend against them.
If you do not have a business lawyer, contact any other type of lawyer and they should be able to refer the appropriate person. You could also contact another business owner and they should also be able to refer you to someone. Do your research and make sure you look up the lawyer’s credentials to make sure your business is getting the best legal representation possible.
Keep the Lawsuit on a Need-to-Know Basis
Usually, it is a bad idea to talk about a lawsuit with friends, business associates and reporters unless your lawyer says it is okay to do so. In litigation, the other side seeks out opportunities to use what you say against you. Do not give them the opportunity. It is fine to discuss lawsuits with your clergy, doctor or psychotherapist because they have an obligation to keep what you tell them secret.
Stay Calm and Let Your Attorney Work
Unfortunately, lawsuits have become very common for businesses. While legal issues can cause severe anxiety and frustration, generally, they do not resolve quickly unless there is a settlement. Be prepared to litigate for the long haul – you may not see a Judge for more than a year. Your business hired its attorney for a reason. Trust in their knowledge and the process.
So long as you take the actions above, it will help ease the stress of litigation and will assist your business in obtaining the best possible result.
Marni Steinberg July 17th, 2017
Posted In: Uncategorized
Attorney Amanda Salvione discussed possible changes to overtime pay law with ABC15 after the House just passed a bill that would let employers give workers paid time off instead of time-and-a-half pay the next time they put in extra hours.
Marni Steinberg May 11th, 2017
Posted In: Uncategorized
PHOENIX – The Frutkin Law Firm has become the first Arizona practice to take advantage of the state bar’s trade name rule. It announced it will rebrand as Radix Law on Jan. 1 2017.
There is a long tradition in the practice of law: the name of a firm includes the surnames of the most prominent partners. As law has become such a big business over the past decade, the largest practices in the world are names of partners who have long since passed away.
This tradition was also required by the Arizona Bar until recently. Now, firms can ditch the commas in favor of a more universal trade name.
Radix, in Latin, means “root.” It can mean the root of a tree, the root of knowledge or the root of a number. While the firm’s attorneys come from all over the world, they have decided to be rooted in Arizona.
“Our new name reflects our values,” says Principal Jonathan Frutkin. “We are a business law firm that helps our clients pursue opportunities and fights for them when challenged – and we are rooted right here in Arizona. It is also an acknowledgement that we have grown from being a solo legal practice into a business law firm with almost a dozen lawyers.”
The Frutkin Law Firm was formed in 2007 and now has 11 attorneys with decades of experience. They serve companies, individuals and families throughout Arizona in business and corporate law and related areas, ranging from taxation and asset protection to bankruptcy and estate planning. Radix Law leads the Valley of the Sun in estate planning and trust administration law. Radix Law’s attorneys are respected sources in their field and contribute to local and national media.
Radix Law, formerly The Frutkin Law Firm, was founded in 2007 by attorney Jonathan Frutkin with the goal of providing exceptional legal representation to clients throughout Arizona in business and corporate law and related areas. Radix helps businesses, individuals, and families in Phoenix and throughout Arizona with their corporate and business law, bankruptcy, taxation, asset protection, wills, trusts, and estates, and litigation needs. The firm is located at the Kierland Commons in Scottsdale. For more information, visit radixlaw.com
rxadmin December 30th, 2016
Posted In: Uncategorized
To successfully compete in today’s sophisticated economic climate, companies need legal advice that is both strategic and timely. At Radix Law, our corporate law attorneys are uniquely suited to advising and guiding entrepreneurs and businesses in Arizona and throughout the United States. That’s because our business law team includes attorneys who have real world experience in the corporate sector.
Our business law group offers customized legal solutions to our clients, ranging from complex litigation matters to transactional work and entity formation. Our attorneys take a pragmatic approach to business law, focusing on both the legal issue and the specific needs of the business. Our advice is designed to help your business anticipate and avoid potential problems.
Radix Law offers a full complement of legal services to our business clients, providing both offensive and defensive legal strategies to help your business grow while minimizing risk and protecting assets. The broad experience of our attorneys is an invaluable asset to our clients as we shepherd them through corporate formation, transactions, litigation, and dissolution. Our client-driven approach focuses on the particular needs of your business, bringing together an interdisciplinary team to address the legal issues may arise over the life of your company.
At Radix Law, our attorneys are skilled in advising corporate clients on legal issues in the technology sector. Our founding partner Jonathan Frutkin previously served as General Counsel for an internet software company and founded a leading law firm’s Cyberlaw specialty group. This experience allows our business law team to provide sage advice not only to technology-based companies, but to all clients who require counsel on technology-related matters.
Whenever you form a business, advice from an experienced business law attorney can be invaluable. Choosing the proper entity form is critically important, as it is the starting point from which all of your company’s operations are conducted. Each entity choice has implications for taxes, liability and day-to-day management and control of the business. The corporate attorneys of Radix Law can help you understand the benefits and limitations of each potential entity choice, providing customized advice based on your goals.
For any company, contracts are a vital part of the business. At Radix Law, our business law attorneys provide sophisticated legal advice on a variety of corporate transactions. We assist our clients in negotiating, drafting, executing and reviewing contracts to ensure that their interests are fully protected, with a goal of minimizing the potential for future disputes.
When contract issues do arise, our attorneys work to resolve them as quickly and efficiently as possible. Our commercial litigations are skilled at finding solutions to complex contract issues through negotiation, mediation, arbitration and in court.
At Radix Law, we offer outside general counsel services to all of our corporate clients, whether they are small, closely-held businesses or large companies. We work in partnership with our clients to identify and resolve potential legal issues before they arise. By proactively managing our clients’ legal problems, we protect them from risk and allow them to focus on building their business. Our corporate counsel services are available on an as-needed basis, providing businesses with a cost-effective manner of securing top-notch legal representation.
Radix Law combines real world business knowledge with legal expertise to provide comprehensive, high-quality services to our clients. From entity formation to transactions and litigation to corporate counsel, our attorneys are ready to assist businesses of all sizes with their full range of legal needs. Contact our office today to schedule a consultation.
rxadmin December 1st, 2016
Posted In: Uncategorized
PHOENIX – The Frutkin Law Firm announced its principal, Jonathan Frutkin, has been selected as a leading speaker for a workshop hosted by CrowdFund Beat and OTC Markets Group.
The one-day conference, to be held November 10 at the OTCQX Market Center in New York City, is a gathering of the industry’s thought leaders who worked on crafting the regulations for the new Regulation A.
Regulation A allows companies to raise up to $50 million and has been referred to as a “Mini-IPO”. Frutkin was one of the national leaders in working with the Securities and Exchange Commission in finalizing the rules relating to the new Regulation A.
Frutkin will discuss the legal hurdles and role of advisors in a successful Regulation A offering. Additional conversation points include how to market an offering, navigating the transfer agent and escrow process and creating a secondary market for securities.
Frutkin’s practice focuses on business and corporate law, and he is a respected source in how companies can harness crowdfunding potential. In May 2013, he published “Equity Crowdfunding: Transforming Customers into Loyal Owners.”
“Being able to raise money publicly gives both investors and smaller companies an opportunity to grow,” says Frutkin. “Regulation A makes a big difference to companies in Arizona. And being able to share stories about growing Arizona companies on Wall Street is always an honor.”
Formed in 2007, The Frutkin Law Firm has 11 attorneys who serve companies, individuals and families throughout Arizona in business and corporate law and related areas, ranging from taxation and asset protection to bankruptcy and estate planning. The firm leads the Valley of the Sun in estate planning and trust administration law. The Frutkin Law Firm’s attorneys are respected sources in their field and contribute to local and national media.
Frutkin is a frequent media contributor and has appeared in The Economist, Kiplinger Personal Finance and The Washington Post. For more information on The Frutkin Law Firm and practice areas, visit www.frutkinlaw.com or like them on Facebook at facebook.com/FrutkinLaw.
rxadmin October 17th, 2016
Posted In: Uncategorized
Jonathan Frutkin, has been selected as a leading speaker for a workshop hosted by CrowdFund Beat and OTC Markets Group to speak on Wall Street.
rxadmin October 17th, 2016
Posted In: Uncategorized
Phoenix, Arizona / Medellin, Colombia – The Frutkin Law Firm’s Principal attorney, Jonathan Frutkin, spoke at the prestigious Universidad EAFIT in Medellin, Columbia on September 15, 2016. He was invited by Alejandro Echavarria, an adjunct professor at EAFIT and prominent Medellin business law attorney with the firm of Duque Perez & Echavarria. Frutkin is a well-known author and speaker throughout the United States on business law topics including crowdfunding and business reorganizations.
Frutkin presented on the topic of business reorganizations in the United States and Colombia to business students at EAFIT. The United States bankruptcy filing by the Colombian national airline, Avianca, almost 15 years ago spurred many changes in Colombian reorganization law. Frutkin is active in many projects in South America, and it was his first lecture presented in both English and Spanish. “It is always fun to talk about the differences between US law and the law in other countries. Because Colombia is becoming one of the most educated countries in the Americas, it was an honor to speak to the business school,” Frutkin said.
According to Echavarria, the opportunity to hear from a speaker from the United States has special significance to university students in Medellin. “Colombia has been transformed during the past 30 years. To have a prominent lawyer from the United States trace the legal history of US and Colombian bankruptcy law is a real treat for our students,” Echavarria said.
About Jonathan Frutkin: Jonathan is a Principal at The Frutkin Law Firm and CEO of Cricca Funding, a crowdfunding advisory company. As an entrepreneur who has led companies in diverse areas including software, digital marketing and real estate, he understands the unique challenges facing business owners. Frutkin has been recognized by AZ Business Magazine as one of the top business attorneys in Arizona.
rxadmin September 26th, 2016
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The Americans with Disabilities Act of 1990 (the “Act” or “ADA”) was passed more than 25 years ago with the noble purpose of eliminating discrimination against individuals with disabilities in all facets of life. Title III of the Act specifically promotes equal access to public accommodations for individuals with disabilities. The term “public accommodations” is defined so broadly as to include just about any business that is open to the public. The purpose of the ADA is to make sure that individuals with disabilities feel as welcome in our businesses as those without disabilities. To facilitate this, the ADA has created Standards for Accessible Design which apply to all areas of the business premises; from entry ways and restrooms to water fountains and parking lots.
The ADA requires that all new construction comply with the Standards for Accessible Design. But the ADA can also apply to older buildings if compliance with the ADA would be “readily achievable” – meaning that compliance would not be overly expensive or unduly burdensome. However, what is “readily achievable” depends on the unique characteristic of each business.
The Act allows individuals who have been discriminated against to file a lawsuit to require compliance, seek monetary damages and to recover their attorney’s fees. Recently, there has been a spike in litigation in Arizona with respect to the accessibility provisions of the ADA. In fact, over the past year and a half, hundreds of ADA accessibility lawsuits have been filed against Arizona businesses. But all of these cases have been filed by only a small handful of Plaintiffs who often use the same law firms.
Many of these lawsuits have been filed against Arizona businesses for parking lot non-compliance issues. For example, the ADA requires that all business parking lots 1) contain the correct number of “accessible” parking spaces; 2) include van accessible parking; and 3) have signs with the international symbol for accessibility mounted in front of parking spaces.
Business owners have become frustrated that one or two disabled individuals, in connection with their attorneys, seem to be patrolling the state searching for businesses with any type of ADA violation. These individuals then file lawsuits in federal court before notifying the businesses of the violations. So, even if the businesses immediately agree to make the corrections, they must also pay the Plaintiffs’ attorney’s fees, which are often $5,000 or more per lawsuit, to get the cases dismissed.
This onslaught of litigation has had a polarizing effect on Arizona residents. Some believe that these repeat plaintiffs and their attorneys are using the Act to extort money from Arizona businesses for small and insignificant ADA violations. The other side says that the ADA has been around for over 25 years and if businesses are still not ADA compliant it is their own fault and litigation is the only reliable method to bring about the purposes of the Act, which is to make disabled individuals feel welcome in our businesses.
But regardless of which side of the debate you are on, every business should retain a qualified contractor or architect to conduct an ADA compliance analysis of the business premises and make any changes or corrections based on the issues identified. These lawsuits often target small businesses because they are less likely to proactively seek professional help to become ADA compliant and they are also more likely to settle quickly because they often do not have the resources to fund prolonged litigation.
However, ADA compliance should be about more than just risk management and staying out of litigation. Business owners should view ADA compliance as part of their efforts to provide exceptional customer service. It is estimated that there are 24.1 million people in the United States with a severe disability that requires the long-term use of assistive devices such as wheelchairs, crutches, and walkers and all of these people are consumers. Virtually every business in existence has customer service as one of its top priorities. And when a business has plenty of accessible parking, prominent signage and a wide path to the business entrance, it sends a strong message that individuals with disabilities are wanted and are valued as customers.
rxadmin July 25th, 2016
Posted In: Uncategorized
Our privacy rights constantly tumble in flux as technology continues to outpace practical legislation concerning data collection and use. Aggregated Information used to, for example, study trends is not the primary issue. Rather, information that contains something an unrelated person can use to identify who it came from is. If I visit a website that tracks details of my visit, I do not expect the website to sell information that alone would allow the buyer to personally identify me without my knowledge or permission. Personal information comes in many forms, but heightened attention is focused on current issues around biometrics.
Biometric identifiers are things like your fingerprint, voiceprint, facial geometry, or iris scan. Biometric information is the information that contains your biometric identifiers. They are unique personal identifiers. Think facial recognition capabilities of Facebook or Shutterfly when people upload photos. This same capability landed both companies in recent litigation for violating an Illinois biometrics privacy law.
With increasing availability of ways to obtain and verify consumer information (say going from gathering my date of birth to gathering my fingerprint or other biometric identifier), companies can implement advanced analytics to recognize and monitor consumers whose information they obtain. Problem is, the more unique my personal information, the more valuable it becomes to me. My finger print is one of the most unique identifiers I possess. My birthday, like everyone else’s in the world, is only one of 365 options. Of course I already know a person who obtains my information, regardless of fault, can cause me harm. To gauge the degree of risk when I share my information, I think of a chart where the more unique my personal information, the more severe the potential harm. People who wrongly access my information can create problems like identity theft, but depending on the information type they may even be able to use it to track my activities and physical location.
Although government’s use of biometrics is not new, prevalence of affordable, accurate applications that businesses can use to gather and analyze the data has gained increasing traction. Now, it is a matter of determining to what extent private sector actors will be obligated to disclose their intentions to consumers to allow for informed consumer consent prior to gathering or using biometric information.
That brings us back to the recent issues Facebook faced in Illinois for violating the state’s 2008 Biometric Information Privacy Act (BIPA) which prohibits collection, use and sale of biometric identifiers absent proper informed consent. Illinois residents filed suit against Facebook for violations of BIPA that have yet to be fully decided. The California courts first had to decide regarding unrelated legal matters like jurisdiction, forum selection and other procedural items. The court decided BIPA applies, but it is still unanswered as to whether Facebook (1) properly informed consumers about the specific use, storage and collection of their biometric data, (2) obtained signed releases from consumers to conduct activities with their biometric data, or (3) sold, traded or disseminated to consumer’s data for profit.
The case against Facebook is just one example of challenges to companies’ over their use of consumer information. As consumers we ideally should own our information, and control how it is used, but the Illinois case shows how the legal framework surrounding ownership, collection, use, and sale specifically of biometric information remains unclear at best.
The difference with Facebook’s facial recognition verse iPhone’s use of fingerprint identification, for comparison, is Apple is not collecting or storing the data. The phone holds the encrypted mathematical mapping of your fingerprint data to help preserve ownership and to avoid unauthorized access from others.
To determine who owns what, including the data that has already been gathered and is stored, legislators need to refine the scope of consumer protection and privacy laws regarding data sharing, storing, collecting, and cross-referencing. Consumers need the ability to make informed consent about the use of their biometric information.
There are substantial benefits to advancing technology surrounding biometric identifiers, which should not be ignored or over inflated when addressing issues of its ownership and use, but the greater the advancement in technology can also lead to a greater risk of biometric data being used improperly.
rxadmin July 13th, 2016
Posted In: Uncategorized