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Susan Maslow and Patty Collins spoke before approximately 60 medical residents in the Family Practice/Emergency Medicine Program of Aria Health at the Torresdale Hospital Campus, on Thursday, January 31st.  The presentation featured an analysis of common employment agreement issues and insight into how negotiations with potential employers has been impacted by the new hospital consortium landscape.

Antheil Maslow & MacMinn is proud to participate in Bucks County's newly established Veterans ID Card Discount Program.  The firm is offering discounted estate planning documents to eligible cardholders.  This program established by the Bucks County Commissioners, Department of Veterans Affairs and the Recorder of Deeds in November 2012 offers all Bucks County Veterans and active duty personnel a free photo ID which entitles them to discounts from a wide variety of local vendors and service providers.  By showing their DD-214 discharge form, they will be able to receive a color photo identification card.  To see the full list of participating businesses click here.


Restrictions against competition are frequently included in employment agreements and agreements for the sale of business assets or stock.  The restriction against competition is designed to secure a time period for the employer or buyer of business assets, as the case may be, during which the employer/buyer is free from competition for a departed employee or seller so as to facilitate the transition and better protect their own business assets and customer relationships.  If properly drafted and implemented, restrictions against competition are enforceable under Pennsylvania law.

The primary method of enforcement in the event of breach is a preliminary injunction in equity.  In order to prevail on a petition for preliminary injunction, a petitioner must demonstrate several factors including (1) the need to prevent irreparable harm which cannot be compensated by money damages, (2) that more harm will result from the denial of the preliminary injunction than from granting same, (3) that the injunction will restore the parties to the status quo, (4) the likelihood of success on the merits, (5) that the injunction is designed to abate the offending activity, and (6) that the injunction will not negatively impact public policy.   In most cases the issues of likelihood of success on the merits and irreparable harm incapable of compensation with money damages represent the contested issues.

In Bucks County, the petition for preliminary injunction must be accompanied by a verified complaint and an order for hearing.  The petition is often, though not always, heard by the initial pre-trial judge assigned to the case at the time of filing.  Court administration reviews all petitions for preliminary injunction and assigns the presiding judge, courtroom and date for evidence to be taken.  The order for hearing is an essential aspect of the petition; without it, no hearing will be scheduled.

The petitioner in any injunction matter bears a heavy burden.  Adequate evidence as to the need for enforcement of the covenant, the potential irreparable harm and right to relief must be presented.  Because the entry of injunctive relief is an extraordinary remedy, the evidence must be clear and persuasive.  In employment and business asset transfer cases, the language of the restriction in the applicable agreements must be constrained to those aspects of competition which are reasonably necessary for the protection of the employer/buyer.  For example, a covenant which is overbroad in terms of geography, time or scope will not be enforced.

Preliminary injunctive relief may be acquired in the Bucks County Court of Common Pleas if supported by the underlying agreement and if properly perfected under the practices and procedures employed in the County.

Just when minority owners of Delaware LLCs thought that the Delaware Limited Liability Company Act (the “Act”) protected them from overreaching managers, along comes the Delaware Supreme Court to say “better get it in writing.” It appears that practitioners longing for certainty will have to wait until the Delaware legislature steps in and revises the statute.

The Delaware Supreme Court recently published an opinion in a case involving a Delaware LLC (Gatz Properties, LLC) that was the manager of another LLC (Peconic Bay, LLC). Gatz Properties is managed and controlled by William Gatz, and the Gatz family and their affiliates owned controlling equity interests in Peconic Bay. They also owned real estate that was leased to Peconic Bay, which in turn subleased the property to a national golf course operator. The golf course proved to be unprofitable because it was poorly managed, and Mr. Katz anticipated that the sublease would be terminated. He decided to acquire the sublease and Peconic Bay’s other assets for himself. Consequently, he foiled the efforts of a third party to buy the sublease rights. He then engaged a valuation expert to appraise the property but did not provide the expert with information about the prior third party offers or tell the expert that the golf course’s unattractive financials were the result of its being mismanaged. Not surprisingly, the resulting appraisal showed that Peconic Bay had no net positive value. Next, Mr. Katz hired an auctioneer with no experience in the golf course industry to sell the golf course business. After lackluster advertising for the auction, Mr. Katz was the sole bidder and acquired the property for $50,000 plus the assumption of debt. Peconic Bay’s minority members brought suit in the Delaware Court of Chancery, alleging that Mr. Katz had breached his fiduciary duties to them. The Court of Chancery held that Gatz had breached both his contractual and statutory duties to the minority members, and Gatz appealed to the Delaware Supreme Court.

The Delaware Supreme Court agreed with the Court of Chancery that the LLC agreement’s clear language prohibited self-dealing without the consent of 2/3 of the minority owners, and Mr. Gatz testified on several occasions that he understood that Gatz Properties owned fiduciary duties to the minority members. The Court also upheld the lower court’s finding that Gatz breached this duty.

Moving on to whether Gatz breached a statutory duty under the Act, the Court noted that it was “improvident and unnecessary” for the Court of Chancery to decide that the Act imposed “default” fiduciary duties on managers where the LLC agreement is silent because, in the case at bar, the issue could be decided by interpreting the text of the LLC agreement. Additionally, no litigant asked that the lower court resolve the issue by interpreting the Act. Another concern for the Court was the lower court’s suggestion that its statutory interpretation should withstand scrutiny because practitioners rely on its rulings. The Court remarked that, as the highest court in Delaware, it was not bound to follow the lower court’s decisions. The Court rebuked the lower court for using the case at hand as a “platform to propagate [its] world views on issues not presented.” The Court concluded its reprimand by stating that because the issue of whether the Act imposes default fiduciary duties is one on which reasonable minds can differ, the matter should be left to the legislature to clarify.

Following the decision in Gatz Properties, equity holders in Delaware manager-managed LLCs would be prudent to clearly identify in the LLC agreement which fiduciary duties are intended to apply to their managers. Given the Court’s position that the issue is a matter for the legislature (not the courts) to decide, practitioners will be monitoring the activities of the legislature to see if it takes up the gauntlet.

Antheil Maslow & MacMinn Attorney Tim White has been named one of  Bucks County’s  Forty Under Forty Inaugural Class.  This award recognizes not only business success, but community service, and we are very proud that Tim was honored in this way.  He is well respected in the Bucks County Legal Community, and has a dynamic and growing estate planning practice.  In addition, Tim makes real and enthusiastic contributions to local charitable organizations.  Tim is a real credit to the firm.

As the calendar year comes to a close, all corporate entities, profit and nonprofit, look to their books and make end of year decisions to best avoid the pitfalls of the clear and concise (NOT!) Internal Revenue Code (the “Code”).  Private foundations have a unique challenge in their efforts to avoid excise taxes which are imposed on them, as well as their managers, in accordance with Section 4944(a)(1) of the Code if it is found that such foundations made investments that jeopardize the private foundation’s exempt purposes.  Such “jeopardizing investments” generally occur when foundation managers fail to exercise ordinary business care and prudence, under the facts and circumstances prevailing at the time of making the investment, in providing for the long and short term financial needs of the private foundation.

On May 21, 2012 the Service published proposed regulations that provide nine new examples of types of private foundation investments that qualify as Program Related Investments (“PRIs”).  PRIs are not classified as investments which jeopardize the carrying out of exempt purposes of a private foundation because they possess the following characteristics:

    a. have as the primary purpose the accomplishment of one or more charitable or educational purposes defined by Section 170(c)(2)(B) of the Code;
    b. do not have as a significant purpose the production of income or the appreciation of property; and
    c. do not further one or more of the purposes described in Section 170(c)(2)(D) of the Code (relating to prohibited political activities and lobbying).

To be certain both the foundation and the recipient of the PRI are on the same page (and to also prove the foundation is exercising “expenditure responsibility” to the Internal Revenue Service), a private foundation must secure a written commitment from the recipient of the PRI which specifies the purpose of the investment and contains an agreement by the organization:

    a. to use all amounts received only for the purposes of the investment and to repay any amount not used for these purposes back to the foundation, provided that, for equity investments, the repayment is within the limitations concerning distributions to holders of equity;
    b. to submit, at least once a year, a full and complete financial report together with a statement that it has complied with the terms of the investment;
    c. to keep adequate books and records and to make them available to the private foundation; and
    d. not to use any of the funds to carry on propaganda, influence legislation, influence the outcome of any public elections, carry on voter registration drives or make grants that do not comply with the requirements regarding individual grants or expenditure responsibility. 

Examples of acceptable PRIs in the proposed new regulations are based on published guidance and on financial structures that had previously been approved in private letter rulings. The regulations do not modify the existing regulation but illustrate certain principles and current investment practices.  Where the examples in the older regulations focused on domestic situations principally involving economically disadvantaged individuals in deteriorated urban areas, the new examples include a broader range of opportunities that might be presented to a private foundation.

The new examples demonstrate that a PRI may accomplish a variety of charitable purposes, such as advancing science, combating environmental deterioration and promoting the arts.  Several examples also demonstrate that an investment that funds activities in one or more foreign countries, including investments that alleviate the impact of a natural disaster or that fund educational programs for individuals in poverty, may further the accomplishment of charitable purposes and qualify as a PRI.  One example specifically illustrates that the existence of a high potential rate of return on an investment does not, by itself, prevent the investment from qualifying as a PRI.  Another illustrates that a private foundation’s acquisition of an equity position in conjunction with making a loan does not necessarily prevent the investment from qualifying as a PRI and two examples illustrate that the private foundation’s provision of credit enhancement (such as a deposit agreement or a guarantee) can qualify as a PRI. 

As a result of the new examples, the Service has made it clear that the recipients of PRIs do not need to be within a charitable class if they are the instruments for furthering a charitable purpose. 
Thus, an investment in a for-profit that develops new drugs may qualify as a PRI if the for-profit business agrees to use the investment to develop a vaccine distributed to impoverished individuals at an affordable cost. Similarly, the purchase of equity in a benefit corporation or L3C that engages in the collection of recyclable solid waste or a below market rate loan to allow a social welfare organization formed to promote the arts purchase a large exhibition space may each also qualify for a PRI from the right foundation.

The new regulations should provide private foundation boards and managers in the second half of 2012 with the additional assurance they needed to make PRIs not only to traditional non-profits but to for-profit, benefit corporations and L3Cs with an articulated social enterprise consistent with the foundation’s exempt activities. Rejecting traditional boundaries between nonprofit and for-profit sectors, the PRI regulations can help encourage the most creative business minds achieve ‘double bottom line’ (financial and social) and sometimes ‘triple bottom line’ (financial, social and environmental) results.  By expanding the base for PRIs, we move beyond traditional conception of society as divided neatly into three sectors (business, nonprofit and government) help develop a new forth sector that encompasses elements of both business and nonprofit sectors. 

Starting a business can be an exciting and challenging time.  There are complex legal issues to take into consideration, but the rewards are often worth the trouble.  The Corporate practice group at Antheil Maslow & MacMinn, LLP understands that it is important to construct a solid foundation as you begin to build your business enterprise, and there are fundamental decisions that a business owner must make. 

To make your business’s start easier, better organized, and more cost effective, our practice offers new small business owners bundled entity formation services which include the following:

1.    Formation Documents – Our office will prepare and file the appropriate formation
       documents for your new business, including:
       a.  Corporations: Articles of Incorporation, Bylaws, Stock Certificates, Waiver Agreement and preparation of
             legal publications*
       b.  LLCs: Certificates of Organization, Operating Agreement

2.    Tax – Our office will ensure that your new business has filed and made the appropriate tax
       filings and elections at the direction of your accountant:
       a.  SS4/EIN application
       b.  S-Election/Check-the-box

3.    Our office will provide you with a detailed instruction letter along with the organizational
       documents to make sure that you and your business do not have a rough start.

Fee Structure:

Fixed Fee for Corporations of $1,000 (includes all filing fees & minute book)*

Fixed Fee for LLCs of  $750 (includes all filing fees & minute book)

*Legal publication fees are not included.

Tom Donnelly, a partner of Antheil Maslow & MacMinn, LLP, represented Prospere, Inc. in applying for tax exempt status under Section 501(c)(3) of the Internal Revenue Code.  Recognition of exemption status was granted on October 18, 2012.

Tom is proud to support the efforts of Prospere, Inc., a not-for-profit corporation dedicated to the creation, administration and funding of a young adult outward bound program of treatment and rehabilitation.  Operating in conjunction with the Bucks County Court of Common Pleas, graduates of the outward bound program may have criminal sentences reduced so as to facilitate reentry into society.  The program is based upon personal experiences faced by young adults involved in the criminal justice system, with the hope that with the right treatment and rehabilitation, these young adults can reach a level of success which the traditional criminal justice system may have prevented.

Prospere, Inc. provides funding for participants to the program; however, its resources are limited.  By obtaining tax exempt status under Section 501(c)(3) of the Internal Revenue Code, Prospere, Inc. can accept donations from the general public, including individuals with ties to the criminal justice system, and such donations may be deducted on the donor’s individual income tax returns.

Should you have questions concerning the creation of a non-profit entity or the acquisition of recognition of exemption under Section 501(c)(3) of the Internal Revenue Code, do not hesitate to contact Tom.

Often, in the business context, agreements contain representations and warranties of the parties to the agreement.  The representations and warranties can range from general items such as business forms and the payment of taxes, to more specific items, such as the accuracy and reliability of financial information.  While such representations and warranties are commonplace in business agreements, their importance should not be overlooked.

Under Pennsylvania law, when performance of a duty under contract is due, any non-performance is a breach.  If a breach constitutes a material failure of performance, the non-breaching party is discharged from its duties under the contract.  A party who has materially breached a contract may not complain if the other party refuses to perform.  In other words, a material breach of contract may excuse performance by the non-performing party.

In the context of representations and warranties contained in a business agreement, should the representations and warranties contained in the agreement prove to be false, the party to whom the representations and warranties were made may raise the falsity of the representations and warranties to excuse further performance of any contractual obligations under the agreement.  Such a circumstance could spell disaster in the business context – particularly in a case where the payment of money is due at some time after closing.

Pennsylvania courts impose an element of materiality to the breach of a representation or warranty.  The elements of materiality under Pennsylvania law include the extent to which an injured party will be deprived of the benefit which he reasonably expected, the extent to which the injured party may be adequately compensated for that part of the benefit of which he will be deprived, the likelihood that the party failing to perform or offer to perform will cure, and the extent to which the party failing to perform comports with the standards of good faith and fair dealing.

Accordingly, representations and warranties contained in an agreement should not be taken lightly, but should be made with any eye toward the potential ramifications in the event of breach.

Sue Maslow and Tim White of Antheil Maslow & MacMinn, LLP will be presenters at the National Business Institute's Seminar entitled "How to Keep Tax-Exempt Organizations in Compliance" on November 13th in Allentown, PA.  This seminar offers invaluable insights into compliance with the complex rules governing tax-exempt organizations.  For anyone involved in non-profit work, you should know that even inadvertently breaking the rules can jeopardize tax-exempt status.  This seminar will provide the information you need to stay current on the latest regulations, study the impact of Sarbanes-Oxley on tax-exempt organizations, avoid intermediate sanctions and ensure accounting practices are up to par.  The program will supply answers to questions about tax-exempt compliance and operational issues.  Here are some of the topics covered:
•    Gaining strategies for safeguarding directors, officers and executives from potential liability;
•    Creating an environment of accountability by establishing comprehensive internal controls;
•    Following annual reporting requirements and compliance with the rules governing disclosures and solicitation;
•    Learning to identify what qualifies as unrelated business income - and what the exceptions are.

Anyone who works in the Nonprofit sector may want to register for this comprehensive educational program.