New Year’s Resolution: Resolve to Get Paid in 2016

As the new year dawns, many individuals make resolutions to try and make better decisions and lead a healthier and a more active lifestyle; the most common example is the resolution to lose weight and get in shape, while many others resolve to give up bad habits such as smoking, but many business owners need to aim to be prosperous, and to get paid.

Often these resolutions fall by the wayside before Martin Luther King Day arrives and few will ever make it past Valentine’s Day.  However, there are those whose resolutions make it far beyond the spring thaw and those who can keep their New Year’s Resolutions are usually much better off than those who recanted.

When it comes to small businesses, a New Year’s Resolution can also lead to increased prosperity in the New Year.  Many small business owners feel renewed by the prospect of starting fresh in a new year and are reinforced by the belief that this will be “their year.”  However, one thing that many small business owners may be surprised to learn is that a great way to help cement that idea and help the bottom line moving forward is to actually look back.

Nearly every business on Long Island, both large and small, have outstanding debts owed to them.  These could be venders who did not deliver on time or at all, sales gone unpaid, contracts breached or interest and penalties gone unenforced.  Often this money goes uncollected to the detriment of the business and vicariously to the business owners themselves.

Going after customers and venders for money is often the last thing that a business owner wants to spend time doing.  Many people would rather use their resources to get new business rather than lament on old business that went bad.   Thus, many choose to “write it off” or “take the loss” or “cut their losses” on such matters.

The good news for businesses in New York is that it does not have to be that way.

They can have it both ways.  Hiring an attorney to collect old debts, those less than six years old anyway, would allow the business owner to still devote their energy to garnering new business, while the attorney collects from those customers and vendors who have wronged you and hurt your business by refusing to pay or breaching their contracts with you.

There are various methods that an attorney can utilize in collecting a debt that a lay-person may not be privy to beyond that of filing suit.  Often businesses and individuals, out of fear of litigation, may suddenly pay the debt or try to work a settlement after receiving a letter on the letterhead of a law firm.  The involvement of an attorney shows that you are serious about the debt and enforcing it.

While it is true that by utilizing an attorney will often mean that a business may not ultimately receive the total amount owned, remember that the debt was not being paid at all before the attorney started working on the case.  The amount owed to the business was just dead, sunken money.  A hungry person does not reject half a loaf of bread because he knows half of a loaf of bread is still better than no bread at all.

 

“New Year’s Resolution: Resolve to Get Paid in 2016” was written by Michael B. Schulman, Managing Attorney.

Justice Delayed is Justice Denied

Justice is too often delayed. The legal system in the United States is just that . . . a legal system. It is not a system intended to “do justice”. Don’t get me wrong, justice does occur in our system, but not by design.

The system is geared for delay. Contrary to how it appears on the TV shows the “Good Wife”, “Law and Order”, or any other legal show, there are few, if any, cases that are over in 45 days, let alone 45 minutes. The pace of most litigation in the United States takes years, not months.

There is an old axiom: “Justice Delayed is Justice Denied.” If that is true, justice is almost always DENIED.

It does not matter what area of the law we speak about today. In New York State, civil litigation takes YEARS to finally come to an end if a jury trial is needed. It takes years, not months or days. It can be upwards of 3-5 years before a plaintiff, looking to recover for damages he/she may have sustained, to finally get “their day in court”. Is that Justice? When I say plaintiff, this refers not just to individuals, but businesses also.

Let’s say you are a small business vendor who has a contract with another business to deliver to them goods and/or services. You deliver the goods and/or services in a timely manner, so you expect to be paid accordingly. Well, many times that bill is not paid timely. Now what do you do?

You hire a lawyer to help collect what is due you. The attorney sends out letters, starts a lawsuit. What do you do in the meantime????? You wait and wait and wait. Unfortunately, your suppliers who originally sold you the goods, or your employees who performed the services needed do get paid. They are not interested when, or even if, you get paid. Employees want their paychecks and your vendors want to be paid or they will not do business with you any longer.

You are now “carrying” an account receivable that is worthless until you get paid. You cannot “deposit” an account receivable; you cannot give it to your employees in lieu of salary; nor can you give it to your supplier as payment. You have to “fund” all of the above until you are paid or risk damage to your own financial history and reputation. If you are a small business, you may have to obtain a business line of credit from your bank to “fund” your sale, which costs you additional money because of interest and bank fees, not to mention your time lost.

But now let’s go back to the hiring of the attorney to get your money. In most cases, the attorney will take a percentage of any recovery (the percentage varies) as well as disbursements. The litigation commences and in the end, 3 years later, you agree to accept 80% of the amount you are owed.

So, as for illustration purposes, lets say you bill a customer $10,000.00 for goods and services, and the attorney takes a 1/3 contingency fee and has $1,000.00 in disbursements. Of the $10,000.00 you are owed, you receive as a gross settlement $8,000.00, less the disbursements of $1,000.00 ($7,000.00 net) less 1/3 for the attorney ($2,333.00). Therefore of the 10,000.00 you are owed, you receive only $4,667.00, which is LESS THAN ½ OF WHAT YOU WERE ORIGINALLY OWED!! Most businesses work on a very tight profit margin. Under this example, most businesses will have lost money on the transaction!!!! But to add insult to injury, the deadbeat who owed you the money, had the benefit of the use of YOUR MONEY for the three years it took to resolve the matter. This is “JUSTICE DELAYED, JUSTICE DENIED”.

This seems to be fundamentally unfair. Well, it is! The business that delivered timely and performed all its responsibilities under the contract actually LOST money because it adhered to the contract. Enough transactions like this can put small businesses out of business very quickly.

“Justice delayed, justice denied” does not apply only in the business world, but also in the arena of personal litigation.

Let’s say you are in a car accident and the insurance company does not want to settle. Five years later you go to trial and receive a large verdict in your favor, money that you need and can use. You can not wait to get the money. You don’t even mind paying your attorney their fee. You wait for your attorney to call and say come get your check. Unfortunately, the call you get is that the defendant is filing an appeal. An appeal you ask, what is an appeal and who pays for it?

Any person who loses their case at trial, whether a plaintiff or defendant, has the right to appeal to the New York State Appellate Division within 30 days after the judgment is entered. That doesn’t sound so bad until you learn that this only STARTS another clock, which also can run for years. As for who pays for it, unless you have a special arrangement with your attorney, you do. The attorney should require you to sign a new Appellate retainer, which is above and beyond the original retainer you signed.

As a general rule, in the Second Department which consist of Suffolk, Nassau, Queens, Brooklyn and a couple of up-state counties, the appealing party then has six months to file their brief as to why the lower court decision should be changed (reversed). The winning party below then has 30 days to file their response and the losing party then gets an additional 10 days to respond. You are looking at over seven months.

But what happens if the losing party who is appealing does not file their brief within the 6 months allotted. They can, and will often be given, multiple extensions to file their brief. This could add months to the timeline above. Let’s assume that the extensions total 3 months (this is not an unreasonable assumption). It will now take 10 months before the appeal can be allowed to be calendared to be heard before the Appellate Division (Justice Delayed is Justice Denied).

So you ask, how long before an appeal is calendared to be heard before the Appellate Division in the Second Department of New York. IT CAN TAKE UPWARDS OF ONE YEAR! You are now over 18 months since you were awarded a judgment and still have not seen a dime.

You wait is still not over. It can take the Appellate Division 2 to 3 months to make a decision. If you win on appeal, you have now probably waited 2 years to receive the proceeds from the jury verdict in your favor (the positive side is that you would be entitled to interest on your judgment at the statutory rate of 9%).

You have waited 2 years to be paid on a case that you won, with all of the added anxiety and cost of any appeal. The system of delay in the courts dictates this. Justice delayed is truly Justice denied.

 

“Justice Delayed is Justice Denied” Was Written by Michael B. Schulman

Making a Contract With a Liar

Has a person ever convinced you to enter into a contract based on false information he or she has given you? If so, you may have claim against that party. The Claim is called “fraud in the inducement”. In order to have a claim, a person must intentionally and deliberately make a “material” misrepresentation to you; and the misrepresentation causes you to enter into a contract. In other words, you must have relied on the misrepresentation. The misrepresentation must be deliberate and intentional. A mere mistake may not rise to the level of fraud.

Not all misrepresentations are “material”. A simple definition as to when a misrepresentation is considered “material” would be if you had known that the information given to you by the other side was false, you would not have entered into the transaction. A “material” misrepresentation would be if a home seller told you that the roof was free of leaks, and it was not. A misrepresentation that the master bedroom is painted beige and it is really painted orange would not be considered material.

It should be understood that even if the other party makes a “material” misrepresentation, you could not claim that you relied on false information if you had the ability check the accuracy of the “facts” on your own. For instance, if you are buying a house and the seller says that there are four bedrooms and there are only three, you had the ability to verify the information prior to entering into the contract. Also, if you have a reason to believe that the representations presented to you are not accurate, then you must put in an additional effort into investigating their accuracy. Basically, you cannot stick your head in the sand and not do your own investigation, whenever possible and feasible.

The same is true in business. If you are buying a business and the seller tells you that the company has annual sales of $1,000,000.00 per year and the sales are only $100,000.00, this is a “material” misrepresentation. If seller represents to you that they have leased space of 50,000 sq. feet and it is really only 45,000 sq. feet, that may not be considerable a “material” misrepresentation.

It is very important that before you enter into a contract, you investigate the accuracy and truthfulness of the representations being presented to you, especially when you have reason to be suspicious.

If you think you have been deliberately misled on a material fact in order to influence you to enter into a contract or your are not sure if you have been persuaded into entering into a contract by fraud, you need an attorney to represent you.

Making a Contract With a Liar was Posted by Michael B. Schulman, Managing Attorney

 

This Blog (mbslegal.com/what-we-say)/Web Site (mbslegal.com) is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

The Importance of Knowing the Statute of Limitations

People often hear the words, “Statute of Limitations” in regard to their case, but what does that really mean? A statute of limitations is the time within which you must file a lawsuit or forever be prevented from doing so. The applicable Statute of Limitations is calculated from when the “cause of action accrues.” When a cause of action accrues depends on the particular claim. For instance, a cause of action for personal injury accrues when the accident occurred. A cause of action for a breach of contract accrues when one of the parties fails to fulfill their obligations under the contract.

The amount of time someone has to commence a lawsuit after the “cause of action accrues” varies. A breach of contract action must be brought within 6 years, while an action for personal injury is 3 years (excluding medical malpractice which has a 2 1/2 statute of limitations). The statute of limitations for slander, libel, false imprisonment, assault or battery is 1 year. The Statute of Limitations for commencing an action for fraud is 6 years or 2 years from when the victim discovered or could have discovered the fraud.

Once the Statute of Limitations has expired, a person cannot successfully commence a lawsuit unless that person is an minor or is “insane”. These are considered disabilities that toll (suspend) the statute of limitation until the disability no longer exists. (i.e. the minor reaches the age of 18).

Anyone who has a potential claim against another party must be aware of the dates within which they MUST commence a lawsuit, or lose that right forever.

Posted by Michael Schulman, Attorney at Law

 

This Blog (mbslegal.com/what-we-say)/Web Site (mbslegal.com) is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

If the music sensation Taylor Swift sees the value of TRADEMARKING -maybe you should too!

As reported by CNN, Taylor Swift, well-known for her music and songwriting, has begun the process of TRADEMARKING titles to her songs and phrases such as “Party Like It’s 1989,” and “This Sick Beat”. She wanted to TRADEMARK “Shake It Off” from her new hit single but maybe unable to do so because a diet company already trademarked the phrase.

You invest a lot of time and money into developing a public image and name recognition for your products and services. Why not receive the added recognition, protection and exposure offered by a trademark registration to exclude others from using the image/name of your products and services. We have been successful in TRADEMARKING phrases, company names and logos such as CITY WONDERS, SPOILED ANGEL, INFINITE CREATIONS, LOVE UNIVERSITY and LEMON DROP just to name a few. We have even been able trademark the number 63 for a client.

A trademark is a valuable asset to any business. It gets you recognized. Look at the trademark for Nike. Everyone knows the Nike Swoosh by sight and immediately recognizes it as belonging to Nike. No need to look for a tag or the written word to know that it is related to a Nike product. The same is true for small business. Lemon Drop and Infinite Creations are not big companies, but they are both trademarked and used in their marketing.

Prior to filing a trademark application, the mark/name must be researched to determine whether it is trademarkable. Among the various issues to be considered are whether the mark/name will be confused with other trademarks and additionally whether the mark/name is generic, descriptive or a surname.

There are two types of applications to be considered: in-use application or intent-to-use application.

An in-use application is filed for marks/names that are already being used in commerce. An intent-to-use application is filed for

marks/names that have not yet been used in commerce, however, the owner intends to use the mark/name in the near future.

Logos can be trademarked along with phrases to make an even more powerful impact to the public. For instance, take the Coca Cola logo, along with the phrase “It’s the real thing”. Trademarks put a face on whatever you want to put out the public. A trademark can be as big as your imagination.

Michael B. Schulman & Associates has trademarked its own logo. You will find our logo on our business cards, stationary, checks and all marketing material.

Trademarks are not reserved for only big businesses, celebrities, like Taylor Swift, or large companies like Nike. You may apply for your own trademark. It is simple, affordable and we do most of the work for you.

The above is a very basic description of the process involved. It is highly advisable to seek the guidance of an attorney in one’s quest for a federally registered trademark. Give us a call and we will guide you through the process.

Posted by Michael B. Schulman, Managing Attorney

 

This Blog (mbslegal.com/what-we-say)/Web Site (mbslegal.com) is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Michael Schulman Appointed General Counsel

Michael B Schulman and Associates PC is proud to announce that Managing Attorney, Michael Schulman, has recently been appointed General Counsel for Vintage Rockefeller Cigar Group Corporation. Vintage Rockefeller is a high end cigar distributor located in Locust Valley, New York, known throughout the cigar smoking world for their trademarked Rock-A-Feller cigars as an affordable luxury.

As General Counsel, Michael will be the chief legal officer for the company. He will be responsible for providing legal guidance to Vintage Rockefeller’s board of directors and senior management.  Michael brings over 30 years of experience as a respected private practice business attorney with him to this new endeavor.

Michael Schulman Appointed General Counsel was Posted By Michael B. Schulman, Managing Attorney.

 

This Blog (mbslegal.com/what-we-say)/Web Site (mbslegal.com) is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.