“Big” Bob Brothers is concerned that his company, Big Brothers Security Systems, is losing out on customers because his salesmen and installation teams are slacking when they are out of the office.  Brothers reads a newspaper article about another company that is putting microchip implants containing radio-frequency identification tags (RFID) into his employees in order to make sure they aren’t doing “off the clock” stuff while on the clock.  Brothers sends a memo to employees explaining that they will all be chipped the next month, and anyone refusing to chip will be terminated.  Can Brothers “big brother” his employees like that?   

Continue Reading Can I “Chip” Away at my Employees’ Privacy?

A number of years ago John Drane, owner of Drane Plumbing & Supply, executed a Power of Attorney (POA) naming his eldest daughter LaTrina Drane as his attorney in fact. John’s debilitating stroke last weekend risks placing him in rehabilitation for months. Determined to continue the family business that offers its customers “Let Us Drain Your Swamp,” LaTrina dusts off John’s POA. Will Latrina have any problems? Continue Reading Returning “Power” to the Power of Attorney

For over a decade On the Skware Toy Soldiers and its owners, Boo & Woo, the Skware brothers, have enjoyed the shopping traffic brought to their retail store that’s located in the same shopping center as Athletics Authoritiez, a popular sporting goods retailer. However, over the last couple of years the Skware brothers have seen their overall numbers of shoppers go down and, with slowing traffic, their gross sales revenue has dropped by over 15% – straight off the bottom line. Now, blaming E-Commerce woes, the news media (supported by local scuttlebutt) is suggesting that Authoritiez is on the ropes and may close its store. Can Boo & Woo do anything to save On the Skware? Continue Reading E-Commerce Disruption – Tenant’s Tizzy

This will likely be the last piece I write on last month’s trial.  We are scheduled to start another trial in January 2018, with additional trials in April and May, and they may gin up some additional insights that I think are useful to pass along.  Today I have some quick thoughts about opening statements and closing arguments, as well as jury deliberations. Continue Reading Some Quick Thoughts on Opening Statements, Closing Arguments and Jury Deliberations

TV production studio showing man talking to cameraAlthough our judicial system historically prefers live witness testimony over testimony of witnesses through a deposition, today’s technology allows even seasoned trial lawyers the ability to present witnesses through videotaped deposition testimony that can be even more effective than having the witness appear live.  I know because I just finished a 3-week trial where 75% of the witnesses we called in our case appeared by videotaped deposition. The defense also called approximately 75% of their witnesses by deposition, The result: after a half-day of deliberations the jury found the defendants negligent and awarded our clients $217.7 million.

Federal courts and most state courts have rules that govern the use of deposition testimony at trial.  The instances when parties may introduce deposition testimony are limited: Continue Reading Why Videotaped Deposition Testimony can be More Powerful than Live Witnesses

Young friends celebrating with sparklersWe covered firework laws several times in the past but it’s always a good reminder as we approach the Fourth of July weekend where fireworks are more than likely in your plans. Below are Texas’ top 10 firework laws you should consider before lighting the fuse. Remember though, laws may vary county to county.

And, don’t forget that any County Commissioners Court in Texas can issue a burn ban prohibiting burning of any kind – including fireworks anywhere in that county, whether within the incorporated city limits or not. Because sparklers burn at approximately 2000 degrees Fahrenheit, they count as fireworks / fire as well.

Continue Reading An Oldie but a Goodie: A Friendly Reminder About Firework Laws in Texas

judge hand with gavelFor nine years, Tilting the Scales has brought legal issues with a business slant –practical and conversation points. Many who we represent are entrepreneurs who prefer to avoid lawyers and, certainly, the courthouse. Few of our Tilting issues focus upon third party resolution of disputes.

This post discusses my arbitration that dodged the “Top 8 Pitfalls of Arbitration” discussed in Tilting’s January 2016 article and attorney insight on the steps of a trial.  Continue Reading Personal Insights into Arbitration and Trial

Bench in bluebell fieldA huge fan of the Hill Country, Skare D. Katz buys a large piece of undeveloped land from the Solable Family outside of Austin.  Skare D. plans to build a ranch for retirement. One Saturday while Skare D. is visiting the property to visualize his plans, a woman shows up and stands underneath a large oak tree, staring at the ground.  Skare D. approaches the woman and asks her for her name.  The woman responds, “Inka Solable.”  When Scare D. asks Inka what she’s doing there, Inka responds, “This is where my great-grandfather is buried.  I come pay my respects every Saturday.”  Dumbfounded, Skare D. responds, “Ma’am, I appreciate that, but I own this property now.  I don’t want you coming by every Saturday.”  Inka replies, “I have a right under the law to access this property when I want.  I’ll see you in Court!”  Is Inka right? Continue Reading The Grave Reality of a Cemetery on Your Property

Business people joining hands in circleBeginning as a part-time college job walking friends’ dogs, Cary Barker’s full time business now employs over 30 college students to walk neighborhood dogs and to deliver them for daily activities to and from his Barkingham Palace Doggie Day Care Center, LLC. Although not yet ready to seek investors and begin franchising, Cary wants to grow Barkingham Palace, protect its blind spots, get alternative perspectives from other’s experiences and expand his network of friends. Cary’s friend Bayh Lawz suggests that Cary should select a board of directors. Should he? Continue Reading Selecting an Advisory Board – Do’s & Don’ts

Crowdfunding money jar full of coinsSpurred by the frenzy of mid-century modern furniture of the 1950s and 1960s returning in popularity, a growing number of collectors are investing in and holding vintage furniture. Capitalizing on that craze, N. Stile Sune’s start-up Mothbalz Antiques cannot grow fast enough to meet demand. To buy more old warehouses and re-fit them into climate controlled spaces, N. Stile must raise over $2 million and is willing to give his investors an equity interest. Can N. Stile use crowdfunding or must he go the old fashioned route of a private placement memorandum (PPM)?

Due to Sune’s $2 million in capital needs (and more) crowdfunding is not a viable option.

Crowdfunding

The JOBS Act 2012 (Jumpstart Our Business Startups) was designed to encourage funding of U.S. small businesses and to ease various U.S. securities regulations affecting business investment. Enticingly entitled the “Capital Raising Online While Deterring Fraud and Unethical Non-Disclosure Act of 2012,” Title III of the JOBS Act had visions of giving small individual investors access to early-stage investment and the enhanced ability to raise money beyond “friends and family,” through social media and from unknown investors like other sites such as Kickstarter.

When compared to other forms of private placements, crowdfunding is not a feasible option for our friend N. Stile Sune and Mothbalz Antiques. As explained in Forbes, here are ten reasons why:

  1. Issuers are capped to raising $1 million in any 12-month period.
  2. Shares issued are subject to a one-year restricted period.
  3. Crowdfunding is capped over a 12-month period at amounts depending upon net worth / income.
  4. Crowdfunding must be done through a registered broker-dealer or registered “funding portal.”
  5. The disclosure document (PPM) must be filed with the SEC prior to first sale and N. Stile Sune would have to file audited financial statements.
  6. Unlike JOBS Act changes affecting accredited investors, crowdfunding does not allow advertising except in narrow exceptions.
  7. Annual reports and possibly more frequent reports must be filed with the SEC.
  8. Legal prospectus liability applies to disclosures.
  9. Extensive due diligence is required, including background checks on management and large stockholders.
Tilting the Scales in Your Favor

Beware. Crowdfunding is far from a start-up fund raising panacea. You can still be sued for fraud for an actual or perceived misrepresentation or omission. One of the best ways to legally protect yourself and your business is also one of the most effective means for garnering serious investor interest.  Disclose as much information as possible about your business, ensuring that if things begin to fall apart and investors threaten to sue for securities fraud or other issues, you can use your disclosure as a powerful defense – through the traditional Private Placement Memorandum – or PPM for short.

For more information on private equity funding, check out our Gray Reed attorneys David Earhart and Mark Wigder.