Wednesday, 5 December 2018

Business Data Breach Law

Business Data Breach Law

One things that you know for sure is that you must safeguard others personal information, often the result of a compromised password or sensitive data pulled from the garbage. But businesses that collect personal information such as addresses, credit card numbers or even Social Security numbers have a great responsibility to prevent data breaches and protect their customers from identity theft.

This article covers the various types of business data breaches, including ways to minimize your risks and — if a breach has occurred — how to respond.

Difference Business Data Breaches

Personal information potentially used to steal one’s identity or illegally access financial accounts can be compromised in a number of different ways:

  • Unintended Disclosure – Information is mistakenly disclosed online or sent to the wrong party via email, fax or other means.
  • Hacking or Malware – An outside party gains electronic entry, either directly or through malware (i.e. spyware or trojan horses).
  • Payment Card Fraud – A thief uses a skimming device or other method to obtain credit card numbers at a retail counter.
  • Insider – An employee, contractor or other individual with legitimate access intentionally breaches otherwise secure data.
  • Physical Loss – Lost, stolen or discarded paper documents with sensitive customer data are obtained by identity thieves.
  • Portable Device – Lost or stolen computer, smartphone, memory device, CD or hard drive falls into the wrong hands.

Not all data breaches result in identity theft. For example, stolen credit card numbers can be used until the customer cancels his or her account but generally don’t give the thief access to one’s identity (which typically requires an address, date of birth and Social Security number).

Make Sure You Contact Law Enforcement

Notifying your local police department immediately after learning about a data breach of customer data is the best way to minimize the damage and also demonstrates a good faith effort to protect your customers. Most states have laws requiring businesses to notify the police, business partners and customers if their personal data has been compromised.

If your local police department is not experienced with identity theft or other information security matters, contact your local FBI or U.S. Secret Service office. For incidents involving mail theft, call the local office of the U.S. Postal Inspection Service.

You Should Notify Other Businesses

A data breach can sometimes affect banks, credit issuers, business partners or other affected organizations. If account information such as credit card or bank account numbers has been stolen, but you don’t maintain those accounts, be sure to call the relevant financial institutions so they can monitor for fraudulent activity.

How to Notify Customers, Clients, Patients, & Other Affected Parties

Early response to a data security breach is the key to preventing, or minimizing the damage from, identity theft or other potential misuse of personal information. While most states require businesses to notify customers about known data breaches, a federal bill known as the Data Accountability and Trust Act is expected to pass soon.

The Federal Trade Commission recommends consulting with local law enforcement officials before releasing a notification so it doesn’t impede the investigation. The FTC also suggests businesses designate a contact person to facilitate the notification process, using letters, web sites and toll-free numbers to communicate with affected individuals.

Your security breach notice should generally follow these guidelines:

  • Describe clearly what is known about the compromise, including how it happened, what data was taken and (if possible) how information has been used by thieves and what actions have been taken to remedy the situation.
  • Explain how people should respond to the data breach, including the contact information of appropriate organizations and agencies
  • Include current information about identity theft in general
  • Provide contact information for law enforcement officers working on the case
  • Encourage victims of identity theft to file a complaint with the FTC

How to Protect Personal Information

It’s in the best interests of every business to prevent data security breaches in the first place. The FTC suggests the following five principles for protecting the sensitive information of your customers and business partners:

  1. Take Stock: Know what personal information is in your organization’s files and computers. This includes smart phones, removable flash drives and information that may be shared with other organizations.
  2. Scale Down: If you don’t need it, it’s a potential liability and should be securely disposed of. As a rule thumb, only keep personal information for which there is a legal or business necessity.
  3. Lock It: Make sure all personal information is both physically and electronically secure, which includes knowing exactly where all sensitive data is stored. Remember that any security system is only as strong as its weakest link.
  4. Pitch It: Use wipe utility programs to thoroughly erase any possible personal data from all decommissioned computers and make sure you shred paper records before recycling them. Identity thieves often find valuable information in the garbage.
  5. Plan Ahead: Devise a plan for responding to security breaches before they happen. A swift and professional response is key to recovering from a potentially damaging data security breach.

Business Data Breach Lawyer Free Consultation

If your business has suffered a data breach, you should also contact the business data breach lawyers at Ascent Law, LLC. We want to help you resolve the issue, salvage and protect what you can, and prevent it from happening again. Call us for your free consutlation (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
Posted by at No comments:
Labels:

Tuesday, 4 December 2018

Remarriage After Divorce

Remarriage After Divorce

Studies have shown that remarriage after divorce has been steadily rising for a number of years, which means people after divorce are getting married again at record rates. According to one 2014 study, approximately 40 percent of marriages involve at least one spouse who has been married before, while in 20 percent of marriages, both spouses had been previously married.

The data for the study came from the 2013 American Community Survey, along with prior census data that contained marriage information. As of 2014, approximately 42 million adults in the United States were remarried — double the amount of 1980 and triple the amount seen in 1960.

Demographics for Remarriage after a Divorce

Through the survey, researchers revealed there are certain demographics that are more or less likely to get remarried than others.

For example, age made a big difference in a person’s desire to remarry. People who are divorced in their 20s or 30s are, perhaps unsurprisingly, significantly more likely to remarry than people who are divorced in their 50s or 60s. However, even older people (65 and up) are remarrying at much higher rates than they had in the past. In 1960, only 34 percent of people who were 65 and older had remarried, versus 50 percent in 2013. Researchers speculated this could be due to longer life expectancies today.

Meanwhile, 75 percent of people between 25 and 34 who were eligible to remarry in 1960 had done so — versus only 43 percent in 2013. So, while young people are more likely to remarry if divorced while young, they are also likely to take their time in doing so, at least compared to previous generations.

How to Bring Up a Prenuptial Agreement as a Possibility Before You Get Remarried

Prenuptial agreements may be on the rise in terms of their popularity, but that doesn’t make it any easier for you to ask your partner for one. It can be a difficult conversation to navigate, even if the agreement would be beneficial for both people entering a marriage. Therefore, broaching the subject requires some tact.

The following are some tips to help you approach the prenup conversation in a positive and sensitive manner:

  • Don’t make it a surprise: The idea of a prenup is never something you should spring on your partner at the last minute. This is a conversation you should begin having as early as possible. You owe it to your partner to provide a reasonable amount of time to think about the possibility of a prenup. This will help you gauge his or her feelings about a prenup and concerns.
  • Know it’ll be a difficult conversation: There’s no getting around the heaviness associated with the prenup conversation. There will be some momentary tension in the relationship that arises as a result. It’s important to be open and honest. If you are serious about getting married, this sort of open communication is something both of you should value and respect.
  • Emphasize the benefits: One of the main talking points in the prenup conversation should be how much you stand to de-complicate a potentially messy situation by using one. If the worst-case scenario happens and your marriage ends in divorce, the process will be much simpler and quicker. You should also be sure to emphasize that the benefits of a prenup exist for both sides.

Suggest the two of you make the agreement together. If you are both active participants in creating the agreement, there will be less concern about an imbalance of power in the relationship and agreement.

Divorce Attorney 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
Posted by at No comments:
Labels:

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
Posted by at No comments:
Labels:

Monday, 3 December 2018

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
Posted by at No comments:
Labels:

Sunday, 2 December 2018

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
Posted by at No comments:
Labels:

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
Posted by at No comments:
Labels:

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
Posted by at No comments:
Labels:
Subscribe to: Posts (Atom)