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business litigation

Using Social Media Posts as Evidence

Mark Schroeder

What was once a rarity is now common as courts are accepting pictures, posts, and other information from Facebook, LinkedIn, and other social media sites as evidence at trials, and it is not only defamatory or fraudulent statements posted on social media that are admissible. The content of a party’s posts and statements are admitted as prior inconsistent statements to their trial testimony and as evidence to show a witnesses’ prior knowledge. Photos are also potential evidence as it is hard to deny you know someone when you are frequently pictured with them. Lawyers know this and hire consultants to scour the web for usable evidence against parties and witnesses, so alert your attorney if you have any concerns.

If you have any concerns or questions, please contact me.

Mark W. Schroeder
Brooks, Tarulis & Tibble, LLC
(630) 355-2101
mschroeder@napervillelaw.com
http://www.napervillelaw.com

business litigation, Confidential Information and Trade Secrets

Protecting Intellectual Property

Mark Schroeder

Intellectual property, from formulas and brand names to distinctive logos, are becoming more valuable assets for many businesses. Their value can vanish or decrease if they are not protected from misappropriation, and the type of intellectual property usually determines the best type of protection. Some of the ways to best protect intellectual property include:

  • Non-Disclosure Agreements. NDAs prohibit the signer from misusing your intellectual property and obligates them to return or destroy it on request.
  • Digital Protections. Strong passwords, encryption, limiting access, and investing in cybersecurity tools prevent data breaches and intellectual property theft.
  • Copyright. Copyright protects original works that are in a tangible form, such as written materials, blogs, designs, apps, lyrics, and music. While your creation is automatically protected by common law copyright, registering it with the U.S. Copyright Office provides extra legal benefits.
  • Trademark. Trademarks protect items like your brand name, logo, or slogan that identifies your business in the marketplace. Use the ™ symbol on a brand or product name as soon as it is being used in commerce and once the trademark is registered use the ® symbol indicating a registered trademark providing additional legal benefits.
  • Patents. Patents protect inventions and innovations. Obtaining a patent is complicated and expensive as most patents require the assistance of a lawyer and engineer.
  • Trade Secrets. Trade secrets are your confidential information that gives your business a competitive edge, but you need to take steps to identify and safeguard them.
  • Contracts and Licensing Agreements. Well drafted contracts and licensing agreements outline ownership, licensing rights, how the property can be used, and compensation, allowing you to retain ownership while giving others permission to use and monetize your intellectual property

The attorneys at Brooks, Tarulis & Tibble, LLC can advise you and your business on your rights in such situations and address your concerns. Please contact me if you have any questions or issues.

Mark W. Schroeder
Brooks, Tarulis & Tibble, LLC
(630) 355-2101
mschroeder@napervillelaw.com
http://www.napervillelaw.com

Small Business Start-Up

Small Business Start-Up Mistakes

Mark Schroeder

Starting a small business is the dream of many Americans, but it is also a financial risk. To ensure success, there are some pitfalls you should avoid to prevent or mitigate a failure, including:

  • Failing to establish the right legal structure. An improper or no business structure can expose you and you family’s assets to your business’ creditors. Each legal structure has different strengths and benefits, and selecting the right structure can have long-term financial, tax and legal consequences.
  • Not protecting what’s unique to your business. Recipes, formulas, brand names, logos, trademarks, slogans, and other proprietary information may be the secret to your business’ success, but if not properly protected it can be lost to others even if you devoted substantial resources to its development. Some protections for your confidential, proprietary, trade secret, or other business information include patents, trademarks, copyrights, non-disclosure and confidentiality agreements, and other actions designed to protect your business.
  • Not having an ownership agreement. A business with multiple owners can end for many reasons, and an agreement between owners to address the situation can protect the business and its owners, prevent the introduction of unwanted new owners, provide an exit strategy for current owners, and allow the business to continue after a departure.
  • Not vetting outside lenders and investors. Be sure you know the costs, risks, and consequences of non-owner lenders and investors, and how they can control or limit your business.
  • Not preventing personal liability. Avoid or limit personal guarantees, obtain appropriate liability and other insurance, maintain the integrity of the business’ legal status, do not commingle funds, obtain proper legal and financial advice, and sign documents only in your representative capacity.
  • Not paying taxes. Failure to pay federal payroll and other withholding taxes is not only a major source of business failures but can lead to personal liability of its owners.

The attorneys at Brooks, Tarulis & Tibble, LLC have substantial experience in advising and representing small businesses and start-ups, as well as counseling owners through growth, disputes, document creation, mergers, and sales. Please contact me if we can assist you.

Mark W. Schroeder
Brooks, Tarulis & Tibble, LLC
(630) 355-2101
MSchroeder@NapervilleLaw.com
http://www.napervillelaw.com

business litigation

Legal Holds

Mark Schroeder

Many courts require and many statutes mandate that parties retain and preserve documents and electronic data that relate to an existing or potential dispute.  This is known as a “legal hold” and is generally initiated by a demand from an adverse or investigating party, or on direction from your counsel.  A legal hold, and in particular multiple legal holds, can be problematic for your business, but the failure to comply with a legal hold can be drastic.

The legal hold is simply a requirement that you, your business and related employees and agents retain all the documents and data, electronic or otherwise, that relate to any of the issues involved in the particular matter, including lawsuits, investigations, administrative actions, or their potential.  Your attorney should identify the specific types of materials and subject matters subject to the legal hold so you can instruct all employees and others in possession of the information of their specific duties and obligations.  Typically, the information is to be maintained and preserved in the same form, format and system on which it was generated, received or maintained in the usual and ordinary course of your business.

The failure to comply with a legal hold can result in claims of evidence spoliation, concealment or manipulation of evidence and result in financial sanctions, fines, penalties, prevention of its use, and negative evidentiary inferences.  Courts often assess costs and attorney’s fees as a result of the failure to comply with a legal hold.

On the conclusion of the situation requiring the legal hold your business should release it and handle the information consistent with other document and information retention policies.  Your lawyer should obtain specific consent or authorization to lift the legal hold, including it in any settlement or resolution documents.  When lifting one legal hold take care not to inadvertently delete any information subject to another legal hold.

The attorneys at Brooks, Tarulis & Tibble have experience in both demanding adverse parties impose a legal hold on relevant information and responding to legal holds imposed on our clients.  Should you have any questions in this regard, please contact me.

Mark W. Schroeder
Brooks, Tarulis & Tibble, LLC
(630) 355-2101
mschroeder@napervillelaw.com
http://www.napervillelaw.com

business litigation, Confidential Information and Trade Secrets

Cyber Security for Your Business

Mark Schroeder

Experts predict that the next wave of litigation against businesses may involve cybersecurity and the failure of businesses to implement pragmatic protections to avoid or minimize the theft or disclosure of private personal information (PPI) or confidential customer information. While insurance may be available to cover some of these losses, the risks to your business and its reputation could be substantial.

Nothing provides immunity from liability, but these steps could decrease liability, exposure or loss:

  • Assess the data you collect, where it is stored and how it is used.
  • Make educated decisions about what data to collect and/or retain.
  • Understand how you use and share the data you collect and retain.
  • Evaluate the locations where sensitive data is stored and its security.
  • Restrict access to sensitive data to trusted employees and agents who need to know.
  • Require secure authentication passwords for access with frequent changes.
  • Routinely monitor your data storage and collection network for breaches or hacks.
  • Know your vendors and service providers’ data protection policies and procedures.
  • Have written privacy and data destruction policies tailored to your business.
  • Communicate your policies to all appropriate people.
  • Train employees to follow privacy policies and procedures.
  • Provide where to direct complaints and have and have a plan to address with them.
  • Ensure that security vendors are qualified to provide appropriate services.
  • Regularly review your efforts and methods to protect information.
  • Keep apprised of the legal requirements applicable to your business and its data.
  • Stay current with government, industry and association standards and best practices.
  • Know what your current insurance policies require and cover.
  • Develop an incident response plan to address any breach.

If you have any questions or if I can assist you in this regard, please contact me.

This Blog is designed to provide our friends and clients with information regarding the various subject matters covered. It is not designed to take place of legal, accounting or other professional advice.  If expert assistance is required, the services of a competent professional should be sought. This memorandum may constitute advertising under the rules regulating Illinois attorneys.