Category: Business

What You Need to Know About Registered Agents

9/23/2014

Whether you are a corporation, a limited liability company, or operating as a professional corporation in Georgia, you should be aware that the Secretary of State requires all businesses to have a registered agent. If your business fails to properly comply with the requirements, you may be subject to fines, your company may be dissolved, and your business could miss important legal notices which could lead to default judgments (meaning your business could lose a case simply because your business did not receive actual notice and did not respond in a timely manner).

What is a registered agent?

A registered agent is the person or company designated to accept service of process, legal communications, and other official documents on behalf of your business. Your registered agent can be located anywhere in the state of Georgia. The registered agent can be an owner or an employee of the company or it can be a third party. Typically, if a business uses a third party registered agent, it is the business' lawyers or a corporate service company.

What are the benefits of having a third party as your registered agent?

Using a third party, such as an attorney or law firm, as your registered agent provides an additional layer of protection for your business. Below are a few of the many benefits:

Being served. Your third party registered agent would be served on your business' behalf and receive your business' legal notices. This way, your business can avoid the embarrassment of being served in front of employees and customers, avoid the risk that an employee is served who fails to give the information to management, and avoid disrupting the general work environment.

A separate address. If you operate your business from home, have inconsistent business hours, operate a virtual business, or use a virtual office, having a separate address for your registered agent means more flexibility and privacy. For example, every business is required to have a registered agent with a physical address. If your business uses a post office box or a mail drop service, such as a United Parcel Services (UPS) mail box, as your business address then you can maintain your privacy by using a third party registered agent. It also gives you the freedom to be away from the business because there is a designated registered agent who can sign and accept notices on behalf of your business even if your business is closed for the day or does not have a physical location.

Keep track of deadlines. Most third party registered agents, especially law firms, have systems in place to keep track of required deadlines. This can help your business avoid the penalties that are associated with the late filing of mandatory annual government filings. It can also help your business avoid missing important court deadlines, which can cause litigation costs to dramatically increase and potentially lead to default judgments.

Moving your business. If your business moves or plans to move and your business has retained a third party registered agent, you do not have to worry about missing any important communications because your registered agent's contact information would stay the same. And you do not have to worry about fines or the loss of your business' corporate status for failure to maintain a registered agent.

Simmons Rogers, LLC offers registered agent services to both existing businesses and those in need of assistance with formation. If you are thinking about starting a business, or if you want to change your Georgia registered agent, feel free to contact us at [email protected].

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Arbitration 101

8/29/2014

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Courtroom battles can be lengthy and subject a business to lots of undesired publicity. Over the years, many businesses and individuals have decided to resolve their legal disputes using alternative dispute resolution ("ADR") methods such as mediation or arbitration. These methods are much quicker, private, and at times less costly than traditional litigation. In fact, if you were to review many of the contracts that you have entered into over the years, you would discover many businesses require disputes to be resolved using some method of ADR - typically arbitration. This post will cover the basics of arbitration and the impact of choosing arbitration over traditional litigation. For a discussion of mediation, please see our post, “The 411 on Mediation”.

What is arbitration?

Arbitration is an ADR method in which a neutral person, or a group of persons, selected by the parties renders a decision to settle a dispute after hearing each party’s side of the case and reviewing the evidence.

How does arbitration work?

It is typically initiated by an agreement to arbitrate or initiated by order of the court.
The parties must select an arbitrator. (Since arbitration is not a judicial proceeding, court rules generally do not apply. Often contracts will require that the arbitration be governed by the American Arbitration Association's ("AAA") rules, or similar arbitration guidelines. Parties should be aware that a contract requiring the use of AAA's rules does not mean that they have to use the AAA for the actual arbitration or a AAA arbitrator. Any well-trained arbitrator should be versed in AAA's rules.)
The arbitrator may hold a pre-hearing/scheduling conference with the parties.
Discovery, if any, is conducted and briefs, if any, are submitted to the arbitrator.
The actual arbitration hearing is held.
The arbitrator makes a decision, which is commonly referred to as an award.

What is the arbitrator's role?

The arbitrator is essentially the judge for the arbitration. However, unlike traditional litigation where the parties have little to no choice over which judge they get, the parties usually select the arbitrator. The arbitrator will preside over the proceedings, make rulings on briefs, resolve discovery disputes, settle evidentiary issues, evaluate the evidence presented, and then make a decision. You can choose whether the arbitrator issues a basic standard award, announcing only the outcome of the case, a reasoned award, explaining the arbitrator's reasoning behind the decision in addition to the decision itself, or a detailed award that includes findings of fact and conclusions of law in addition to the decision.

Who can serve as an arbitrator?

Anyone can serve as an arbitrator provided they have the requisite training or certification required by his or her respective state, country, or industry association. Typically, arbitrators are former judges, lawyers, or a professional with particular knowledge of the facts involved in the case.

What are the benefits of arbitration?

It is quicker and more efficient than litigation.
Less formal than litigation.
Parties have control over who will be their decision maker.
The process and the award can be completely confidential.
The process can be more collegial than litigation, and a great way to preserve business relationships.
Arbitrators typically issue the award within a set time frame after the hearing, often 30 days, whereas courts do not have similar time frames and can take months to issue an opinion.
The arbitrator's award is relatively final, because it is very hard to appeal or vacate the award.
The arbitrator's award can be confirmed by a court and become an enforceable order of the court.

What are the risks of arbitration?

While discovery is limited, an arbitrator can order witnesses to appear and can order the inspection of records, letters, and other evidence.
The rules of evidence are more relaxed, so evidence that might be inadmissible in a court proceeding could be admissible in the arbitration.
There is no case precedent, meaning decisions from similar cases do not govern the arbitrator's decision and the arbitrator's award has no impact on future cases. Likewise, arbitrators are not constrained by statutes.
The arbitrator's award is relatively final, because it is very hard to appeal or vacate the award.
Arbitration can be more costly than traditional litigation.

Arbitration vs. Mediation

The goal of arbitration is for a third party to reach a decision for the parties involved in a case, while the goal of mediation is for the parties to resolve the case themselves. In arbitration, the decision is made entirely by the arbitrator. On the other hand, in mediation the mediator hears each party’s side of the case and then assists the parties in negotiating with the hopes that the parties can reach a settlement. It is possible that parties will participate in a mediation, fail to reach a resolution, and then engage in arbitration regarding the same dispute.

Deciding whether to litigate, mediate, or arbitrate can be difficult. There are benefits and risks with all three. If you would like to discuss your legal matter and the various avenues available for resolution, or you are looking for an experienced neutral to serve as either an arbitrator or mediator for your case, please do not hesitate to contact Simmons Rogers, LLC at 404-445-8260 or [email protected].

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Hiring A Summer Intern: To Pay or Not to Pay

4/17/2014

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The summer is fast approaching and perhaps you are considering hiring summer interns for your business. Why not? Hiring summer interns is a great business strategy. Summer interns are a great way for your business to increase its recognition in the marketplace, recruit future talent, liven up your workplace, and provide your current employees with an opportunity to gain experience serving as a mentor and a manager.

However, there are some legal risks involved with hiring interns. Whether your interns are paid or unpaid, many of the legal risks associated with traditional employees also apply, including, for example, anti-discrimination laws.

When it comes to unpaid interns, violating the Fair Labor Standards Act (FLSA) is one of the biggest risks for "for-profit" businesses. Internships at "for-profit" businesses will typically be viewed as employment, unless the internship is deemed exempt by the U.S. Department of Labor.

To ensure that your business' internship program is exempt you must make sure the program is properly structured.

The 6-point test for determining if an unpaid internship program is exempt from FLSA's requirement to pay interns a minimum wage and overtime, according to the U.S. Department of Labor, is as follows:

The internship, even though it includes actual operation of the facilities of the employer, is similar to training which would be given in an educational environment;
The internship experience is for the benefit of the intern;
The intern does not displace regular employees, but instead works under close supervision of existing staff;
The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
The intern is not necessarily entitled to a job at the conclusion of the internship; and
The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

If all of the factors listed above are met, no employment relationship exists under the FLSA, and the FLSA’s minimum wage and overtime provisions do not apply.

In addition to federal laws, your business must also consider what state laws apply to the internship. Check out this list of cases, summarizing internship-related lawsuits filed over the past 3 years. While you cannot prevent lawsuits, you can increase the likelihood of your business winning a lawsuit.

So, remember unpaid internships are not meant to be free labor for your business. Before you bring on your interns this summer, make sure you have a formalized internship program that complies with both federal and state laws. Once you have written down the details of your internship program make sure you have them reviewed by both your human resources department and an attorney.

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Business Client Spotlight on Makya Renee of Mareta Creations, LLC

2/4/2014

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As a small child, before the concept of a career was solidified, Makya knew she was destined to use her mind to create things and be her own boss. Taking the liberty to start her own laundry pressing service, complete with her own crayon drawn logos and repurposed dry cleaner packaging, Makya launched her first business. With an entrepreneurial spirit that could not be quenched, Makya has followed her passion and is now the proud owner of three companies.

As a student at Florida A&M University, Makya decided to change her major from Architecture to Graphic Design. She also took her first official step into the world of self-employment - creating Mareta Creations in her dorm room. As the company grew, Mareta Creations began to take on more projects, gaining valuable experience and pedigree, but financially the company was struggling. Driven by the love she had for her business and her clients, Makya dedicated the wealth of her time to the projects and far less attention to the business of her business. The cost of doing business began to heavily outweigh the the revenues of the business. As a result, Mareta Creations was forced into a hiatus.

Despite the setbacks experienced during her first attempt at entrepreneurism, Makya decided to embrace them and learn from them. With a spirit of perseverance, Mareta Creations was relaunched in 2010. This time Makya decided to hire Attorney Maya Simmons Rogers of Simmons Rogers, LLC, to help her structure her business.

With the help of legal counsel, Makya was able to select the business entity type that was best for her business goals. This time around, Maya and Makya developed a set of contracts that Mareta Creations uses when entering into relationships with everyone from clients to design assistants.

Maya also advised Makya to protect her intellectual property. To make sure that no one could legally steal the brands Makya worked so hard to develop, Maya trademarked two brands - Mareta Creations® and Graphic Snob®. After hearing about and seeing actual infringement of other entrepreneurs' brands, Makya has become an advocate for patent and trademark protection, advising small business owners in particular to defend their intellectual property and designs from infringement.

Makya continues to extend the reach of her businesses, utilizing her strong personal network and social media to connect with past, present, and future clients.

Mareta Creations’ graphic design services have flourished and grown since the 2010 relaunch. The business now provides corporate design services, fine invitations and photography services for events, families, and pets. In 2013 and 2014, Mareta Creations was selected as one of The Knot's Best of Weddings Vendors.

In 2013, after completing her Master's in Graphic Design at George Mason University, Makya launched Graphic Snob, an apparel company for the graphic snob in all of us. Most recently, in 2014, Makya launched Cosmetic Snob, where she sells cosmetic products through her online Amazon Store.

Makya credits much of her polished self-presentation and business acumen to her experiences at Florida A&M University where she was able to observe the matriculation of students through the School of Business and Industry and “learn through osmosis”. As she carries Mareta Creations, LLC, the parent company, into the future, Makya keeps an eye for opportunities and professional growth. In the upcoming year, Mareta Creations, LLC will forge ahead with an added focus on corporate and government contracts and looks forward to opening its first physical storefront to showcase its products and projects. Visit www.MaretaCreations.com, www.GraphicSnob.com, and www.amazon.com/shops/cosmeticsnob to learn more about Mareta Creations, LLC's award winning products and services.

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The 411 on Mediation

12/20/2013

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Mediation is an effective way to resolve any type of dispute; from squabbles between neighbors to large claims worth millions of dollars. Differences that cannot be resolved between the parties can lead to expensive, time consuming, public battles that involve lawyers and courts - unless alternative dispute resolution (ADR) methods, like mediation, are utilized.

Mediation is a great way for businesses and individuals to resolve problems. Even after a lawsuit has been initiated, mediation is a practical way of reaching an agreement that could end the lawsuit. As long as the parties involved in the dispute are willing to meet to discuss the issues separating them, it is likely that a mutually agreeable settlement can be reached.

What is mediation?

Mediation is an opportunity for a mediator to facilitate a mutually acceptable settlement agreement between the parties involved by offering the parties an opportunity to:

Express and address their respective concerns;
Better understand the other party’s perspective; and
Help the parties involved find creative solutions to their problems.

What is the role of a mediator?

A mediator is a third party neutral that will find points of agreement between the parties and facilitate movement towards a mutually decided upon agreement. A mediator should not dictate the decision, but instead help the parties develop their own resolution.

What is the benefit of mediation?

Mediation has several benefits that make it more beneficial than arbitration and litigation in certain contexts:

Mediation saves time: Unlike litigation, which can take years, and arbitration, which can take months, the parties' dispute could potentially be resolved in a matter of days and possibly hours.
Mediation offers privacy: If the parties reach a mutually acceptable settlement agreement during the mediation, the parties' have the opportunity to restrict public exposure of the issues and the outcome.
Mediation can save relationships: When there is an interest by either party to preserve a business or personal relationship, mediation is a great alternative. Unlike litigation, the focus of mediation is on compromise - not winning and losing. With that in mind, it is possible for the dispute to be resolved in a way that allows the parties to maintain their relationship and continue to work together.
Mediation puts the parties in control: If the parties choose to litigate or arbitrate a third-party makes the final decision and the parties have no input on the final decision. However, in mediation each party gets to make the final decision about what they will and will not do. That gives the parties autonomy and control over the outcome of the dispute. Contrarily, in litigation the parties have little to no control over deadlines, hearing scheduling, or the outcome.
Mediation saves money: Mediation can save the parties money if they reach a settlement agreement by reducing the future legal fees - including discovery expenses, expert costs, and attorneys' fees - that would be incurred with continued litigation or arbitration. The parties also have the potential to save money because the party gets to decide how much it is willing to pay, instead of a judge, jury, or arbitrator.

Once the parties agree on dates, mediations can be scheduled quickly. Remember, the advantages of mediation over litigation include privacy, reduced legal fees, control over the outcome, control of the process, a chance to salvage relationships, and control of your most important asset - your time.

Simmons Rogers, LLC provides mediation services throughout Georgia, in all 50 states, and internationally. Contact us to learn more about our services or to schedule your mediation. Online scheduling is also available.

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Forward>>

What You Need to Know About Registered Agents

Arbitration 101

Hiring A Summer Intern: To Pay or Not to Pay

Business Client Spotlight on Makya Renee of Mareta Creations, LLC

The 411 on Mediation

Simmons Rogers, LLC

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