BUSINESS LITIGATION

We are experienced in prosecuting and defending disputes arising out of business relationships including contractual disputes, unfair competition claims, breach of fiduciary duty, interference with prospective economic advantage, and a variety of other types of business litigation matters.  We also handle all types of defamation and trade libel cases.

Jurisdiction; Choice between Federal and State Court

If your business dispute involves an online company based in a different state, a court will first have to determine whether its contacts with your state were sufficient to force the company to defend a lawsuit in your state. If the site regularly contracts with consumers in your state, or tailors itself in any way to users in your state, the court will likely find it has jurisdiction over the defendant and will hear the case. However, if the site merely posts information, the court will not likely find it has jurisdiction to hear the case and you will have to consider other options.

Litigating Against Anonymous Tortfeasors

In the Internet age, a tortfeasor (wrongdoer) is often an anonymous actor or one using an assumed identity (also known as a “pseudonym”).  Before you can name such a tortfeasor in a lawsuit, you must determine his or her IP address and subpoena contact information from the applicable internet service provider or other source.  You could, for example, demand the user’s identity be revealed by the web hosting company who registered his or her domain, although it may resist providing such information where it promises its users anonymity.

It is typically necessary to file a lawsuit against a “DOE” or unidentified defendant and file a motion for expedited discovery in order to permit one or more subpoenas to be served, which adds significant expense to the pursuit of anonymous tortfeasors.  Finally, if you discover the wrongdoer is based in another country, this may make enforcement cost-prohibitive.  This is an issue that should be addressed with counsel at the outset, at which point the place of residence of a tortfeasor may not be known.

It is important to also consider that there are laws protecting the right to speak and act anonymously, and depending on the circumstances and/or jurisdiction, it may or may not be possible to determine the identity of a person accused of certain torts, such as Internet defamation.

CONTRACT LAW 

Contracts are the foundation of any legal relationship.  Whether you are a Web site owner, an advertiser, a developer or a consumer, you need to have a valid and enforceable contract in place to govern your interactions and obligations with your business partners.  We have experience in negotiating and drafting all types of digital media and intellectual property agreements to ensure that your rights and duties are clearly delineated and appropriately managed.

Terms of Use Agreements

Almost every Web site has a terms of use agreement that describes the purpose and nature of the site, how you can become a registered user of the site, how updates are provided to users, what policies and procedures the site employs, what users are permitted to do while using the site and what practices and behavior they are forbidden from engaging in.  Terms of use agreements also protect the Web site by informing users of the intellectual property rights of the site and its users.  They also contain a host of waivers, disclaimers and other legal language to protect the site from potential lawsuits and position the site to prosecute lawsuits effectively where necessary.

Privacy Policies

Companies should have an online privacy policy to explain to users their online data collection and data retention policies.  Lately, privacy concerns have become a hot topic in the digital media field.  Users want to know their personal and private information will not be freely distributed or sold to marketers without their knowledge.  If you are a California business, or you collect information from California residents, you are required by law to have a privacy policy that complies with certain and specific legal requirements.

Online Advertising & Marketing Contracts

Online affiliate marketing involves a “publisher” (an individual or organization with a Web site or other source or method of generating online traffic) acting like an advertising team for a business (or “advertiser”) by promoting its products in exchange for a commission.  A publisher’s Web site, for example, would typically feature promotional advertisements containing links to an advertiser’s site.  Depending on the agreement reached between the publisher and the advertiser (or with an agent or broker for the advertiser such as an “affiliate network”), the publisher will receive a commission when users either click on the advertiser’s advertisement, or when they register with the advertisers’ site, or when they make a purchase from the advertiser.

Whether you are a publisher, advertiser, network or agency, you need to have well-drafted and enforceable agreements in place to ensure your rights are adequately protected.

CORPORATE TRANSACTIONS LAW

We represent both companies and individuals in their corporate and general business matters, including the formation and maintenance of sole proprietorships, corporations, general and limited partnerships and limited liability companies.  We also negotiate, structure and draft business transactions for a wide variety of matters including mergers, acquisitions, domestications, business purchase and sales and corporate finance matters.

Corporate Structures

Sole Proprietorships

A sole proprietorship is the simplest form of business organization.  There is no separate legal entity as the owner is the business itself.  These are the most common form of business in the U.S.

Corporations

A corporation is a separate legal entity from the individual or individuals who incorporate it.  The owners of a corporation are its shareholders, who generally only have limited liability to the extent of their monetary contributions.

Partnerships

A general partnership is an association of two or more individuals formed to conduct business for profit.  The partners have various duties and rights among themselves and towards others, which are established by the partnership agreement and law.

Limited Liability Companies

A limited liability company (“LLC”) is an unincorporated business entity that combines elements of general partnerships, limited partnerships and corporations.  LLCs are created under the laws of the state where the business is being organized.

Additional Related Services

In addition to forming and maintaining the foregoing types of entities and conducting individual transactions, the Firm routinely advises companies on ongoing operational matters including the negotiation and drafting of commercial business agreements, shareholder agreements, corporate governance and regulatory compliance.  We also represent clients involved in business disputes as part of our business litigation practice.  In connection with our intellectual property practice, we assist companies in protecting their intellectual property assets by preparing employee and third-party confidentiality agreements, assisting in the implementation of trade secret protection programs, guarding against cybersquatters and registering and policing copyrights, trademarks and service marks.  In representing our clients with their business matters, we pride ourselves on being able to think both as both lawyers and practical-minded business professionals.