Contract

New York Independent Contractor and Consulting Agreements

by Fred Abramson

New York Independent Contractor and Consulting AgreementsAs an inde­pen­dant con­trac­tor, there is no employer-employee rela­tion­ship with the per­son or com­pany that you are doing busi­ness with.  The inde­pe­dent con­tract is a con­sul­tant who per­forms spe­cific duties that the con­sul­tant is capa­ble of performing.

At the start of the rela­tion­ship, it is absolutely vital to have an inde­pen­dent con­tract agree­ment (also known as a con­sult­ing agreement) drafted to pro­tect both par­ties.  The con­se­quences of fail­ing to estab­lish a con­sul­tant as an ind­pen­dent con­trac­tor can have dire tax consequences.

In your inde­pe­dent con­trac­tor agree­ment, it is impor­tant to estab­lish that the con­sul­tant per­form­ing the ser­vices is is not under the con­trol of the employer.  In addi­tion, the employer may not directly super­vise the con­sul­tant.

When it comes time to draft an inde­pen­dent con­trac­tor agree­ment, you should focus on the fee for ser­vices ren­dered and pro­vide a com­plete descrip­tion of the ser­vices that are to be provided.

Interference with a Business Opportunity

by Fred Abramson

You have been nego­ti­at­ing for months with a sup­plier.  A com­peti­tor becomes aware of your nego­ti­a­tions and derails the deal.  Can you recover for your dam­ages?  Under the Tort of Intef­er­ence with a Busi­ness Oppor­tu­nity you may.

Gen­er­ally, the types of oppor­tu­ni­ties that can be sub­ject to such a claim include:

  • Sale or Pur­chase of a Business
  • Sale or Pur­chase of Property
  • Employ­ment Opportunities
  • Sale of Goods
  • Con­struc­tion Contracts
  • Pro­fes­sional Relationships

In order to prove the tort of Inter­fer­ence with a Busi­ness Oppor­tu­nity, you must show:

  • That there is an oppor­tu­nity in exis­tence that is defi­nate and spe­cific in scope and capa­ble of being acted upon
  • The other party had knowl­edge of the opportunity
  • The other party with intent intef­ered with the opportunity
  • They actu­ally caused dam­age to your interests
  • Actual Dam­ages

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What Can You Sue For? Basic Contract Damages

by Fred Abramson

What Can You Sue For? Basic Contract DamagesIf you are suing for a breach of con­tract you are prob­a­bly won­der­ing what money can you col­lect.  You could also be won­der­ing if there is any other relief that you can obtain from the court. Listed below are the basics of what you can sue for in a breach of con­tract case:

  1. Com­pen­satory Damages.
  2. Con­se­quen­tial Damages;
  3. Liq­ui­dated Damages;
  4. Injunc­tions and other Equi­table Relief.

COMPENSATORY DAMAGES:

If you can prove your breach of con­tract claim, then the judge usu­ally awards com­pen­satory dam­ages.  The pur­pose of com­pen­satory dam­ages it make the plain­tiff be in the same place as if the con­tract had been performed.

CONSEQUENTIAL DAMAGES:

If you can prove that the other party knew or could have fore­seen when the agree­ment was made, you can recover con­se­quen­tial damages.

One com­mon issue in a breach of con­tract case regard­ing con­se­quen­tial dam­ages is whether you can recover for lost prof­its.  The gen­eral rule is that you can only recover for lost prof­its if this issue was rea­son­ably fore­see­able when you signed the con­tract and the other party knew of your cir­cum­stances or if it is expressly writ­ten in the con­tract. For exam­ple, if you plan on open­ing a restau­rant, and the party that you con­tracted with failed to install a stove, you may be able to recover con­se­quen­tial damages.

LIQUIDATED DAMAGES

When dam­ages will be dif­fi­cult to assess if a con­tract is breached, you can agree to a liq­ui­dated dam­ages clause in your con­tract. A liq­ui­dated dam­ages clause will state the amount of dam­ages that will be paid if there is a breach.

INJUNCTIONS:

If mon­e­tary dam­ages are insuf­fi­cient, the judge has the power to order an injunc­tion, attach­ment, spe­cific per­for­mance and rescission.

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What Can You Sue For? Basic Contract Damages

Why you Should Purchase the Assets of a Company Rather than the Stock

by Fred Abramson

One of the prob­lems that you may encounter when buy­ing a busi­ness in New York is under­stand­ing how to struc­ture the pur­chase.  Basi­cally, there are two ways that you can buy a company:

  1. Asset Pur­chase;
  2. Stock Pur­chase.

In most cases, you will be bet­ter off pur­chas­ing the assets. There are three big ben­e­fits to buy­ing the assets and not pur­chas­ing the stock:

  • Tax ben­e­fits. With an asset pur­chase, you can give dif­fer­ent pur­chase prices among the var­i­ous pieces of the com­pany.  For exam­ple, cer­tain equip­ment can be deducted imme­di­ately so you may want to assign a greater price for those assets.
  • You can choose not to acquire lia­bil­i­ties of the busi­ness you wish to buy. Per­haps the com­pany failed to pay a sup­plier for goods it ordered two years ago.  The statute of lim­i­ta­tions on a breach of con­tract law­suit is six years, so you could be hit with a law­suit four years after buy­ing the company.
  • You don’t have to buy every asset of the cor­po­ra­tion. It could be in you best inter­est to buy only the prof­itable por­tions of the company.

Some­times you are not given the choice of how a busi­ness sale could be struc­tured.  Many busi­ness that are for sale require pur­chase of stock only for a vari­ety of rea­sons. For exam­ple, the seller may believe that there are tax advan­tages for sell­ing all the stock.  If you have to buy cor­po­rate stock, it is imper­a­tive to con­duct a thor­ough inves­ti­ga­tion of the corporation’s books and oth­er­fi­nan­cial deal­ings.  You can insert war­ranties and indem­ni­fi­ca­tion clauses in the stock pur­chase agree­ment. You may also be able to pur­chase insurance.

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Why you Should Purchase the Assets of a Company Rather than the Stock

What is a void or voidable contract?

by Fred Abramson

In New York, a void con­tract is sim­ply no con­tract at all. It binds nei­ther party.  If you enter into a void con­tract, noth­ing more has to be accom­plished on your part.  It is bind­ing by nei­ther party and can­not be ratified.

Con­tracts that are usu­ally con­sid­ered void­able when one of the par­ties has the abil­ity either to avoid or val­i­date the agreement.

Once you per­form the duties and oblig­a­tions of a con­tract, it can­not be con­sid­ered voidable.

For more infor­ma­tion on void or void­able con­tracts, con­tact me at 212–233-0666.

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What is a void or voidable contract?

New York Business Law and Civil Litigation

by Fred Abramson

In my world, suc­cess is when you fur­ther your  inter­ests. It’s as sim­ple as that.

Since 1997 I have advised small busi­ness own­ers about what they must know  before enter­ing into a con­tract so that they could limit their risk of fac­ing costly civil lit­i­ga­tion and bad press.  As a com­pany lawyer,  I tell busi­nesses own­ers and peo­ple what they should do if they have been sued.

I have suc­cess­fully rep­re­sented a range of New York com­pa­nies, from non-profits to exec­u­tive search firms, along with many peo­ple. I have lec­tured about busi­ness law for many dif­fer­ent groups, includ­ing  con­tin­u­ing legal edu­ca­tion classes for lawyers.

Take the first step. Con­tact me to get your New York Busi­ness Law and Civil Lit­i­ga­tion ques­tions answered by an expe­ri­enced lawyer with a deep under­stand­ing of the prob­lems you’re facing.

When you’re ready to take the next step you can begin the process online. If you’d like to sched­ule a free, no-obligation con­sul­ta­tion in my office you can call 24 hours a day, 7 days a week at 212–233-0666 or fill out the con­tact form below.

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Business Law

by Fred Abramson

Hir­ing a busi­ness law attor­ney is cru­cial for any suc­cess­ful busi­ness.  As a pas­sion­ate busi­ness owner, I know that your busi­ness is impor­tant.  Your legal needs must be met so that your focus is on grow­ing business.

I pro­vide busi­ness advi­sor and legal ser­vices to entre­pre­neurs, start-up busi­nesses and other enti­ties from plan­ning and for­ma­tion to sale or other dis­po­si­tion of the busi­ness.  I will guide you through the devel­op­ment of your busi­ness plan, choice of entity and any busi­ness struc­tural decision.

Below you will find a par­tial list­ing of my Busi­ness Law Ser­vices. If you don\‘t see a par­tic­u­lar topic listed and you would like more infor­ma­tion, please con­tact my office so I can pro­vide to you the infor­ma­tion you need.

  • Draft and Nego­ti­ate Contracts
  • Buy-Sell Agree­ments
  • Pur­chase and Asset Sales Agreements
  • Employ­ment Agreements
  • Inde­pen­dent Con­trac­tor Agreements
  • Set­tle­ment Agreements
  • Con­struc­tion Contracts
  • Com­mer­cial Leases
  • Cor­po­rate For­ma­tion (Inc, C-Corp, S-Corp, LLC, LLP)
  • Cor­po­rate Min­utes and Record Keeping
  • Real Estate
  • Share­holder Agreements
  • Social Media, E-Commerce & Social Media Law
  • Non-Disclosure Agreements/Confidentiality
  • Trade­marks
  • Intel­lec­tual Prop­erty Agreements
  • Tech­nol­ogy and Ven­ture Licens­ing Agreements

Arti­cles of interest:

Busi­ness Sale:

Con­tracts:

Cor­po­rate Formation:

Social Media Law:

Start-Ups:

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by Fred Abramson

FREDERIC R. ABRAMSON

My law prac­tice encom­passes both lit­i­ga­tion and trans­ac­tional law.  My typ­i­cal day often begins with review­ing files that demand imme­di­ate atten­tion.  There­after, I usu­ally appear in court, where I attend depo­si­tions and appear before judges at con­fer­ences, motions and tri­als. Out­side the court­room, I con­tinue my zeal­ous rep­re­sen­ta­tion of my clients by per­form­ing research, prepar­ing for court, draft­ing con­tracts and review­ing other legal paperwork.  I also visit my clients at both their offices and homes.

When not in the office, I like to spend time with my wife, kids, fam­ily and friends. On week­ends, I enjoy cook­ing a wide vari­ety of foods, from bar­be­cued salmon sand­wiches to recre­at­ing Ital­ian feasts.  I enjoy attend­ing cul­tural events and explor­ing dif­fer­ent areas of New York City and Long Island.

I am a vora­cious reader of books, news­pa­pers, mag­a­zines, web­sites, blogs and trade jour­nals relat­ing to busi­ness, law, non-fiction, lit­er­a­ture, cur­rent events, and his­tory. I also love to watch and par­tic­i­pate in sports, lis­ten to music and paint. Three of my works can be found on the rotat­ing images on the right mar­gin through­out this blog.  I have trav­eled exten­sively through­out the United States, Europe, Canada and Mexico.

I received my law degree (J.D) from Quin­nip­iac Uni­ver­sity  School of Law in 1996 and my B.A. in Polit­i­cal Sci­ence from the State Uni­ver­sity of New York at Albany in 1990.  I stud­ied law at the Uni­ver­sity of Lon­don at Kens­ing­ton via the Detroit-Mercy School of Law in the fall of 1995.  I am admit­ted to prac­tice law in both state and fed­eral courts of the State of New York.  I am a mem­ber of the New York County Lawyers Association.

For more, read Lance Godards Twit­ter inter­view with me at 22 Tweets.

Read my guest post at smallbiztechnology.com:  Social Net­works and the Law

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