Tuesday, 4 December 2018

Defamation vs. Commercial Disparagement

Defamation vs Commercial Disparagement

Although defamation and commercial disparagement are very similar, it’s important to remember that they are separate torts. First, let’s define defamation. Defamation occurs when a person makes an untrue statement, which is published, and causes injury to the person referenced by the statement. Examples of defamatory statements include:

  • Statements that reflect negatively on a person’s integrity, morality, or character
  • Statements that suggest that a person was involved in a serious crime
  • Statements that suggest that a person has a mental or physical defect that would discourage others from associating with him or her

Commercial disparagement is a type of tort that is exclusive to businesses, while a defamation claim can be filed by anyone. In addition, a commercial disparagement claim is seen more as protecting the property rights of a business as opposed to its reputation. This distinction is the reason why a claim of business disparagement is meant to protect a business’s financial interests, while a defamation claim is meant to more generally protect reputation.

Elements of Commercial Disparagement

In order to prevail on a claim for business disparagement, a plaintiff must prove the following elements:

  1. The false statement is published;
  2. With the intent, or reasonable belief, that the statement will cause financial loss for the business;
  3. There is in fact a financial loss for the business; and
  4. The defendant makes the statement knowing that it’s false or with reckless disregard of whether the statement is true or false.

It’s important to break down some of the elements a little further to better understand this type of tort. In this context, “published” simply means that it is communicated — in writing or orally — to a third party. In addition, the statement must be false. If the statement is damaging but true, the defendant has an absolute defense to a business disparagement lawsuit.

But proving financial harm from an act of commercial disparagement is often very difficult, since the damage to one’s reputation is abstract in nature. In other words, the plaintiff has to prove that the alleged act of disparagement actually caused customers to abandon the company or discouraged the acquisition of new customers.

Drafting Contracts

Small business owners and senior-level managers will need to draft various contracts throughout their tenure, although some contracts require the expertise of a qualified business lawyer. The “Drafting Contracts” section provides a general understanding of how to write legally defensible contracts, with articles on commonly misused contractual terms and a primer on how to write a business contract, plus an overview of common business contracts, sample sales contracts, and related resources.

Writing a Business Contract

All valid contracts have to follow some basic rules. At its most basic a contract is formed when one party makes an offer of an exchange of value to another party, who accepts the offer. There are many guides to contract writing, but there are some key elements that all contracts require, including:

  • Intent to make a contract;
  • A lawful subject matter;
  • An offer made by one party;
  • Acceptance of the offer by the other party;
  • An exchange of something of value;
  • A written agreement, in some circumstances.

Revocation, rejection, and counteroffer impact whether an agreement has been created. An offer that has been made but not accepted can be revoked at any time before acceptance, but once the offer is accepted an agreement is made. If you agreed to keep the offer open for a certain amount of time you can’t revoke the offer until the period is ended. Rejection happens when an offer is extended but the other party declines to accept the deal. Counteroffer refers to when a party rejects a proposed agreement and offers their own agreement with modified terms.

Accepting a contract is simple by comparison. A party can accept a contract through a clear statement or writing, by performing their part of the agreement, by promising to perform their part of the agreement, or even if the party begins to perform their part of the bargain incorrectly due to their misunderstanding.

How to Write a Business Contract

A business contract provides some clarity for parties attempting to record an agreement. When you are one of the agreeing party it is wise to ensure that you’re understanding of the agreement is clearly laid out and that you understand all of the terms. Writing your agreement and its terms are an important start, but there are some other basic considerations worth keeping in mind. The contract should be written in language that you clearly understand. Fancy legal terms aren’t helpful and when they make the document more confusing they may even hurt.

The written contract should be detailed and establish what each party will do and when their actions should take place. The terms should be as clear as possible. Details about when and how one party will pay the other are particularly important. The contract should also provide for confidentiality where that is important and the contract should also clearly indicate when and how it will terminate.

A carefully crafted contract will take state laws into consideration, may indicate rights to particular remedies and attorney fees when there is a lawsuit as a result of the contract, and may include mediation and arbitration clauses to reduce the expense and difficulty of litigation if a disagreement arises.

Business Lawyer Free Consultation

If you are here, you probably have a business law issue you need help with. If you need help with litigation for business defamation or drafting a business contract call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Monday, 3 December 2018

Obtaining a Divorce in Utah

Obtaining a Divorce in Utah

One of the reasons people stay together long after they should is fear of the divorce process. Do not let your fear of the unknown legalities of divorce prevent you from moving forward with your life in a more positive manner. Being trapped in an empty marriage is no way to live. The process of obtaining a divorce can seem daunting, but the fact is that many people have been able to navigate the process and so can you. A skilled family law attorney would be happy to explain the legal requirements involved in getting your divorce.

To obtain a divorce in Utah, you must be able to show you fall within this requirement — either of the parties to the divorce was a resident of the county in which you file your case in Utah for the period of three months before filing for divorce in the District Court.

Facebook Evidence in Divorce

A 2010 survey conducted by the American Academy of Matrimonial Lawyers (AAML) concluded that 81 percent of divorce attorneys had seen an increase in the use of social media as evidence — with Facebook topping the charts at 66 percent. In the more than two years since the disquieting AAML survey, Facebook has grown to 955 million monthly active users. Chances are your spouse and the friends and family of your spouse use Facebook. Following are five tips for Facebook use during your divorce.

Consider everything you post will be used in court

Consider everything you post on Facebook as public information. With one click of a button, your photos and comments can spread exponentially until it falls into your spouse’s hands and then into the court file. In addition, a court has the authority to order you to release deleted and private postings to your spouse.

Do not post party photos

Flirting with new friends and enjoying a few drinks may be harmless activities as you transition into your single life, but photographic evidence of your partying can be damaging. Even innocent photos can be misconstrued and used against you by your spouse.

Talk to your friends, don’t post on Facebook

Although your spouse may really have cheated on you or behaved badly in other ways, Facebook is not the appropriate forum to vent your frustrations. Your angry tirades — no matter how justified — can be twisted to your spouse’s advantage.

Don’t talk about your case

Along with divorce comes the freedom to buy and do what you want without asking your spouse’s permission. However, your purchase of a new boat, car or vacation home may diminish your argument that you cannot afford to pay financial support or that you need your spouse to pay you alimony.

Change your privacy settings

Facebook allows you to control how much information you share with the public. However, although updating your Facebook privacy settings can protect you, the adjustment does not guarantee your spouse will not get hold of your postings.

Divorce Lawyer Free Consultation

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Nonprofit Entities and Taxes

Nonprofit Entities and Taxes

Nonprofits can and do sometimes make a profit. Nonprofit corporations, nonprofit organizations or other exempt legal entities, unlike other forms of business, are not designed to make money for owners or shareholders. Instead, nonprofits are formed to serve a government-approved purpose, and are accorded special tax treatment as a result. Whether or not the profit a nonprofit makes is taxed is based on whether the profit was generated from activities that are “related” or “unrelated” to the nonprofit’s purpose.

Related Activities Profit

Like any business, a nonprofit has to cover operating costs and pay its employees. To pay employee salaries, keep the lights on and expand, a nonprofit needs to generate revenue. Sometimes the nonprofit generates revenue that exceeds the amount of its expenses, resulting in a profit. How it generates that profit matters tremendously. To avoid having to pay taxes on any profits it creates, a nonprofit must make money on activities “related” to its nonprofit status.

For example, suppose there was a nonprofit group called “Clothes for Kids” that went around collecting old clothing, cleaning and repairing the items, and then giving the refurbished clothes away to children in need. The nonprofit generates income by conducting charity dinners, raffles and fundraisers. The nonprofit could properly use the income it generates from these activities to pay operating expenses and employee salaries. The nonprofit won’t have to pay taxes on any profits it receives, because the activities that generated the profits were directly related to its mission: providing children in need with clothing.

Unrelated Activities Profit

Sometimes, however, nonprofits earn money on activities unrelated to their tax exempt purpose. In that case, the nonprofit must pay taxes on the profit earned, just like any other business. While a nonprofit doesn’t have to worry about losing its tax exempt status if it makes a little profit from unrelated activities, it’s important that such profit remain a small part of the nonprofit’s operation. To avoid losing tax exempt status, a nonprofit should (1) Keep any unrelated activities that generate profit small; (2) Never hire someone dedicated to performing the unrelated activities; and (3) Avoid spending staff time on unrelated activities.

As an example of how a nonprofit might earn profit from unrelated activities, imagine that “Clothes for Kids” has decided that, in order to reduce costs, it should own and operate its own facility for putting on charity events. When not in use by “Clothes for Kids,” the nonprofit often rents out the space to other charities and businesses, earning rental income on the facility. Any profit generated from renting the facility would likely be taxed as normal business income.

Exemptions For Unrelated Activities

The IRS realized that distinguishing related and unrelated activities might often be difficult, so it set out a list of activities that are likely not related to a nonprofit’s purpose, but nevertheless will not be taxed:

  • Sales of merchandise that has largely been donated to the nonprofit;
  • Distribution of items worth less than $5 in return for donations;
  • Activities that primarily benefit members, patients, students, officers or employees of the nonprofit;
  • Activities where nearly all of the work is done by volunteers;
  • The sale, rental or exchange of donor mailing lists.

 

Free Consultation with a Nonprofit Corporation Lawyer

If you are here, you probably have a not for profit entity or tax issue you need help with. If you do, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Sunday, 2 December 2018

Why You Need a Prenuptial Agreement

Why You Need a Prenuptial Agreement

The last thing on the minds of most couples is signing a prenuptial agreement. It may not be the most romantic thing to discuss but if you are entering into marriage, it is an important subject that needs to be addressed. There was a time when prenuptial agreements were only for the wealthy. But if you own any kind of property or significant assets, it is important to protect your financial interests. Not matter how strong bond a bond you may have with your fiancé, there is no guarantee the marriage is going to last forever.

Take Control of Your Life

The truth is not all marriages are built to last. If you have significant assets and property, everything you own could be at risk. It is important to protect yourself. One of the guarantees of divorce court is there is no sure thing. Rather than take chances, more people are discovering it is best to have a prenuptial agreements to protect their personal and financial interests.

HERE ARE A FEW REASONS WHY IT IS BENEFICIAL TO HAVE A PRENUP.

  • Protecting Your Wealth:If you have significantly more wealth than your partner, it is vital to have a prenuptial agreement. Critics of prenups often say it takes the romance out of marriage. But that is not necessarily true. It actually proves your fiance is marrying for who you are rather than your money.
  • You Have Greater Income than Your Partner: Another benefit of prenuptial agreements is to limit the amount of spousal support should the marriage end in divorce. Alimony is often based on the earnings of each spouse.





  • You are Remarrying:Your life will go through changes. Chances are your financial situation may be different in your next marriage. Many people who get married for at least a second time have children from their first marriage or have child and spousal support obligations. A prenuptial agreement helps ensure your assets are allocated to the right family members in the event of your death.
  • Your Partner Has Debt Issues:Many people often make the mistake of entering marriage without knowing their partner’s financial situation. If your fiance has accumulated debt, it could become your responsibility. A prenuptial agreement can protect you from inheriting your partner’s debt.
  • You Are a Business Owner:There are many risks when entering a marriage. If your marriage falls apart, your spouse could end up owning a major share. A prenuptial agreement can help ensure your spouse does not become a business partner.
  • You Earn Less Money Than Your Partner:When most people think of prenuptial agreements, they think of a document that generally protects a spouse that either earns more money or has more assets. But it can also protect those who earn less.

THE PROS AND CONS OF KEEPING THE HOUSE AFTER DIVORCE

Maybe you love the house you’ve shared with your soon-to-be ex-spouse, or maybe it’s haunted with painful memories, or maybe the mortgage and general upkeep are things you’re happy to leave behind. In any case, Utah spouses who are going through divorce will want to weigh their options carefully in matters of property division.

For example, sometimes spouses agree that selling the home they shared is a good way of making a clean break. In this case, it is still important to take into account certain costs associated with the sale, such as working with a broker, scheduling house showings and figuring tax liabilities. It is also important to plan beforehand how any profits will be distributed, directly or in escrow.

There is also the unpleasant situation of neither spouse wanting to let the property go. Major disputes can erupt over the marital home, but both parties will want to be sure before they fight for a piece of property that may or may not be worth the struggle in the long run. There may be other assets that are more valuable than a home and its mortgage and maintenance.

Keep in mind that retirement accounts, stock options and other investments are also considered marital property.

If both spouses agree that one party should keep the house, then the best course of action may be to refinance in the name of the person who stays. The spouse who gives up the home will also want to speak with an attorney about ensuring that liability for the house falls solely with the person who keeps the property.

Free Initial Consultation with a Prenuptial Agreement Lawyer

When you need help with a prenuptial agreement, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Choosing a Business Name

Choosing a Business Name

Now that you’ve chosen your market niche, drafted a winning business plan, and secured financing from family and friends, it’s time to settle on a business name. This is not something you want to rush into, however, as the name of your business will become an important part of your brand and identity.

If it’s too clever or unique, you run the risk of causing confusion with your target market. But you also don’t want a name that is too generic, since it won’t stand out enough for customers to remember. It can seem a little overwhelming at first, which is why it’s important to take it one step at a time. The following list will help you get better organized as you search for the ideal business name.

Choosing a Business Name

Choose a list of names that you would like to use.

  • Start by brainstorming, then narrow down your list by considering how the name can be used as an Internet address — check to see if the name or a variation thereof is available as a domain name.
  • Try the names out on family members and close friends to get their reactions.
  • Live with your ideas for a while to see how you feel about them after you’ve had more time to reflect





  • Check to see whether your ideas are already on the list of fictitious or assumed business names on record with the Utah Department of Commerce
  • Determine whether your state requires state or local registration of assumed business names for unincorporated businesses and, if so, register your name with the requisite local authorities
  • If you are going to incorporate your business, check with the Secretary of State’s office in your state’s capital city to see whether your idea is the same as or confusingly similar to an existing corporate name in your state
  • Even if you are not incorporating, you will need to decide whether you should register for trademark protection on the state level
  • If you do opt for state registration, do a trademark search, checking all state trademark registers, trademark directories, yellow pages directories, the Internet, and other resources for the same or confusingly similar marks in the states in which you plan to register, or ask your attorney to do this search for you.
  • File an application with the state office that handles trademarks (often the Secretary of State’s office), or have your attorney file it on your behalf





  • Decide whether to register your name on the federal level, and then perform all of the above searches, or have your attorney do the same, on a national scale.
  • If you opt for federal registration, file an application with the U.S. Patent and Trademark Office to reserve your business name for federal registration.
  • Once all searches are complete and your decision is final, register your Internet domain name.
  • Have your business cards, stationery, advertising, and signs printed or made.
  • Start marketing your business so you can get clients or customers.

 

Free Consultation with a Business Lawyer

If you are here, you may need help with a business legal matter. If so, call Ascent Law for your free consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Saturday, 1 December 2018

Children’s Rights in Divorce

Children's Rights in Divorce

As you go through your divorce, the court system will determine your ability to meet the basic needs and rights of your children when setting child custody arrangements. Your ability to meet these needs determines how fit you are to be a primary custodian.

Some examples of those basic needs and rights include:

  • Quality education. Children have a right to access to quality education. Therefore, courts will look at your access to school systems, particularly whether you would have to remove them from their current school under the custody arrangement. They will also analyze your ability to foster an environment of learning and studying in the home.
  • Special needs. Children with disabilities have a variety of medical and emotional needs that must be fulfilled. Your financial ability to provide for these needs and your emotional ability to handle a child with disabilities full time will be analyzed by the court.
  • Safety. Courts want to place children in homes where they will be safe. If you have exercised a history of substance abuse, neglect or child abuse, they will almost certainly not put your children in your custody.
  • Health. You should be able to meet the various health needs of your children, including getting them to doctor’s appointments, paying for medication and more. Courts may also consider whether or not you are a smoker as they draft custody arrangements.
  • Community. If a specific custody arrangement would require that children are uprooted from their community and their friends, they may be less likely to grant custody in that fashion.

Attorneys for Children in Custody Disputes

Amid the he said, she said drama of hard-fought child custody and visitation cases, we can sometimes forget another small but important voice — that of the child.

To ensure that custody proceedings focus on the unique interests of the child, family law judges or court commissioners may appoint an attorney for the child, which we call a guardian ad litem, to represent the child in court.

The attorney for the child may interview and deal with each parent and their respective attorneys, as well as meet with:

  • School professionals
  • Forensic psychologists
  • Social workers

Still, the attorney for the child is expected to remain independent, advocating and expressing only the wishes of the child-client who is the subject of the dispute.

As clarified in the 2010 bill signed by the attorney for the child is allowed to consult with, to advise and to make recommendations to the child-client. Only when the child may not be capable of making a reasoned decision or where imminent, serious harm could result, however, should the attorney step in to provide a personal opinion or a recommendation that may override the wishes of the child.

Don’t Mess Up Your Custody Rights

Custody battles are heart-wrenching because they involve innocent victims — the children. As a Long Island family law attorney, I see bitter parents trying to use custody and visitations as weapons. Ultimately, these tactics can backfire. Here are some key mistakes:

  1. Interfering with visitation. Whether you repeatedly show up late for visitation exchanges or miss them completely, relocate without authorization, or just discourage your children from visiting the other parent, interfering with the non-custodial parent’s rights can cost you yours.
  2. Interfering with custody. If your ex has shared legal custody, he or she has the right to be involved in major decisions relating to education, health and welfare. Even if you cooperate on visitation, excluding the other parent from key decisions means you are interfering with custody.





  3. Verbally attacking the ex in front of the children. Malicious put-downs and untruths — even encouraging the children to be disrespectful to your ex — can come back to haunt you. In extreme cases it can be considered emotional abuse, resulting in Parental Alienation Syndrome. In addition to harming the kids’ view of the other parent, it can damage the court’s opinion of you.
  4. Making unfounded allegations of abuse. If there’s evidence that your ex is abusive to any household member, by all means talk to a lawyer. But if you make such charges solely out of spite, your own rights could be at risk.
  5. Engaging in substance abuse or other immoral, irresponsible or immature behavior. Unless you love your substance more than your children, get some help before you end up a distant observer in your kids’ lives.

 

Free Consultation with a Divorce Lawyer

If you have a question about divorce law or if you need to start or defend against a divorce case in Utah call Ascent Law at (801) 676-5506. We will help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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Merge with Another Business

Merge with Another Business

If you are thinking of merging your business with another, chances are you’ll want to consult with a business lawyer for the process. As business lawyers, we act as intermediaries sometimes or as a “middle person,” representing either the buyer or the seller, and can help structure and negotiate the deal.

Can an intermediary be a lawyer? Sure.  Sometimes it’s a lawyer, but sometimes it is not. Is an intermediary an accountant? Sometimes it is and sometimes it’s now. An experienced attorney will handle all the details of the merger agreement, while the accountants perform comprehensive financial analysis. Simply put, an intermediary helps execute the merger and acquisitions process.  But even if the intermediary is a lawyer or an accountant, you should have someone who is independent – not representing one side or the other for a merger.  You don’t always need one – if you’re a small business.  But if you are mid-size or larger, you need an intermediary.  As your business attorneys, we can’t be both – we can be one or the other.

Choosing the right intermediary is crucial to the success of your transaction. The following list of questions can help you determine if the intermediary is qualified to represent you in this undertaking

Experience, Knowledge, and Professional Standards

  • What is the intermediary’s education and experience?
  • What type of companies has the intermediary and his or her firm worked with?
  • What size and type of transactions have this intermediary and his or her firm completed?
  • What has the intermediary’s track record been on other transactions?
  • Can the intermediary and the firm provide references?
  • Is the intermediary licensed? If so, which licenses and in what states?
  • Have there been any regulatory complaints or administrative actions taken against the intermediary or other members of the intermediary’s firm?
  • Are the intermediary and/or the firm members of any industry group which requires its members to a follow a code of professional conduct?

Firm Quality

  • How many intermediaries does the firm employ?
  • How long have these intermediaries been with the firm?
  • What are the backgrounds of key members in the firm?
  • Do members hold any special designations?
  • How is intermediary recruiting done?
  • How many members of the firm will be working on your project?
  • How will information be communicated with personnel working on your merger?

Capabilities and Services

  • What types of investors does the firm track in its database? Do they fit with the type of investors that would be interested in your proposal?
  • How much and what sort of information does the firm keep on potential investors?
  • How often is the investor database updated?
  • Does the firm participate in industry networks?
  • Is the firm’s investor base limited by industry, size, or geography, and are the limitations in keeping with your needs?
  • Will the firm provide you with sample offering prospectuses and memoranda?
  • Can the intermediary provide guidance on terms, pricing, and how to structure the deal?
  • Can and will the intermediary be involved throughout the entire negotiation, and to what extent?

Negotiation and Confidentiality

  • Get a sense of the intermediary’s listening skills and ability to ask appropriate questions.
  • Does the intermediary seem genuinely interested?
  • Does the intermediary seem able to adapt to change and think on his or her feet?
  • Does the intermediary seem to take an open and creative approach to solving problems, or does his or her approach seem more rigid?
  • What approaches does the intermediary prefer in arranging a deal? Are you comfortable with that style?
  • Does the firm require potential investors to sign a confidentiality agreement? What are the key provisions?
  • How does the firm guard against releasing sensitive or confidential information?
  • Does the intermediary seem to take confidentiality seriously?

Free Consultation with a Business Lawyer

If you are here, you probably have a business merger that you need help with, call Ascent Law for your free business merger consultation (801) 676-5506. We want to help you.

Michael R. Anderson, JD

Ascent Law LLC
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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