John D. Trainer, Of Counsel for the Firm, has again been tapped to teach a five-week seminar on Estate Planning & Administration at Delaware Valley College’s Center for Learning in Retirement (“CLR”), beginning March 22, 2012 in Doylestown, Pennsylvania. Trainer’s annual class provides presentations and discussions focusing on what criteria are considered necessary to prepare estate documents, in order to minimize federal and state death taxes. Also covered are: recent repeal of the Federal Estate Tax and how this will impact estate planning; powers of attorney; the benefits of living wills; and processes involved in the administration of a decedent’s estate. Timothy M. White, Esquire and Paralegal Sheila Kyle, also of Antheil Maslow and MacMinn, LLP, will instruct during the course.
Trainer, Of Counsel for Antheil Maslow & MacMinn, LLP, concentrates his practice in estate planning, estate administration, and elder law, and is a member and past president of the Bucks County Bar Association, a former member of the Disciplinary Board and Pennsylvania Bar Association House of Delegates, and serves on the Bucks County Estate Planning Committee. He received a Bachelor of Arts from Bucknell University, and his Law Degree from Villanova Law School.
Tim White, a member of the Bucks County, American and Pennsylvania Bar Associations, an Associate with Antheil Maslow & MacMinn, LLP will teach one session dealing with Pennsylvania Inhertance Tax and Federal Estate Taxes. Tim specializing in the areas of taxation, estate planning and administration, estate and trust litigation, family wealth preservation, business succession planning. He received a Bachelor of Arts from Michigan State University, and his Law Degree and LL.M. Taxation from Temple University School of Law.
Celebrating 20 years in business, Antheil Maslow & MacMinn, LLP is a full-service law firm with practice areas in Business & Finance; Death & Serious Injury; Estates & Trusts; Health Care; Labor & Employment; Litigation; Nonprofits; Real Estate & Land Use; and Tax. The Firm works with high net worth individuals, small to mid-sized, privately-held companies, nonprofits and heath care organizations in the Greater Philadelphia and New Jersey areas. Antheil Maslow & MacMinn, LLP is headquartered in Doylestown, Pennsylvania.
Divorce, LLC Style: You Don't Call; You Don't Write; I want a Divorce!
Written by Susan MaslowTwo guys are sitting at a bar discussing how they are going to quit their current jobs and start their own business. A lawyer sits next to them, overhears their happy ramblings and pipes in, as lawyers always do, that their mutual promise to devote 100% of their working energy to the new biz has to be reduced to writing. You know this joke, right?
Well, maybe not, and maybe it’s not such a knee slapper anyway. Under Delaware’s Limited Liability Company Act (the “Act”), a person may be admitted to a LLC as a member and may receive a LLC interest without making a contribution or being obligated to make a contribution to the LLC. If an interest in a LLC is to be issued in exchange for cash, tangible or intangible property, services rendered or a promissory note or obligation to contribute one or more of these items, however, the LLC’s operating agreement can and should, identify that obligation. The Act goes further and makes it clear that the operating agreement may provide that a member who fails to perform in accordance with, or to comply with the terms and conditions of, the operating agreement shall be subject to specified penalties or consequences, When a member fails to make any contribution that the member is obligated to make, the operating agreement can provide that such penalty or consequence take the form of reducing or eliminating the defaulting member’s proportionate interest in a LLC, subordinating the member’s interest to that of nondefaulting members, a forfeiture of that interest, or a fixing of the value of his or her interest by appraisal or by formula with a forced redemption or sale of the LLC interest at such value.
If only our clients made it easy on us by letting us write agreements with such detail! A more common scenario is the member who wants us to get rid of the 50% member, formerly a dear buddy, who walked out the door for whatever reason after a few months (or, even worse, walks in and plays on the computer all day doing nothing that needs to be done). Unfortunately, without an operating agreement that clearly identifies expectations with respect to contributions of services and remedies for breach, it is a challenge to argue the defaulting member forfeits his or her interest for failure of consideration as s/he might for failure to “pay” for the interest with cash or property.
While I continue to look out for case law in support of the idea of forfeiture in the context of LLCs, a recent Kansas case did address alternative remedies for breach of obligations with respect to contributions of cash. In Canyon Creek Development, LLC v Fox, the court struggled with the appropriate remedy available to a LLC when a member failed to satisfy a required capital call. The defaulting member, Fox, argued that he should not be held personally liable for the nonpayment of a post-formation capital contribution where the only remedy set forth in the operating agreement was a reduction of his ownership interest. Interpreting a statute that appears to be similar to the Act, the court ultimately agreed with Fox, making a distinction between the initial contributions (which could be in the form of cash or services, measured by their “net fair market value”) and later capital infusions which had to be in cash (unless the manager otherwise consented). The court concluded that the statutory default rule that a member is obligated to perform any promise to contribute cash or property or perform services, even if a member is unable to perform, supports the proposition that a member may be required, at the option of the LLC, to contribute an amount of cash equal to the agreed value of any initial, unmade, contribution. The court stated this was the law even where the LLC may have other rights against the noncontributing member under the operating agreement or other law. Turning to subsequent capital calls, however, the court found it significant that the remedy of cash damages, the most fundamental remedy for breach of contract, was conspicuously absent from the provisions of the operating agreement. Thus, the court concluded that the failure to include such a fundamental remedy as damages when a member fails to contribute additional capital after the LLC’s initial capitalization was not an oversight, but rather expressed a clear intent that damages are not recoverable from a member who failed to contribute additional capital after the venture was up and running. In the Fox case, the right to reduce the breaching member’s LLC interest was all that the LLC could do to punish the breaching member. No divorce, but better than a non-collectable judgment for a sum certain from my perspective.
We are celebrating our 20th Anniversary year! It has been our great privilege to provide high quality legal services to clients over a broad spectrum of practice areas. Founded on March 1, 1992, the Firm has been active in the Central Bucks County community by sponsoring charitable activities and other programs. The Firm's attorneys serve on the boards of several local nonprofits and participate in a number of local organizations. AMM has grown along with the community, and our practice has broadened over the years with the addition of a highly skilled, experienced and knowledgeable professional staff.
Please take a moment to view our 20th Anniversary video in celebration of this important Milestone.
AMM are proud sponsors of the Big Brothers Big Sisters of Bucks County Bowl for Kids Sake Fundraising events happening throughout the county. This is Big Brothers Big Sisters of Bucks County’s premier fundraising event, where people get together with friends, family, and co-workers and have a fun time bowling in support of our mentoring programs in our community. Big Brothers Big Sisters of Bucks County works to help broaden children’s perspectives and help them learn how to make good choices.
We want to encourage others to join the effort, whether you start a team, become a corporate sponsor or make a donation, its a great organization and a great feeling to help local youth on the path to fulfilling their potential and succeeding in school and life.
An Unexpected Adversary for Private Companies: the SEC
Written by Joanne MurrayIt is not uncommon for a minority shareholder to cry foul when the corporation is sold and the shareholder believes he received less than fair value for his shares. Such claims often result in shareholder oppression suits, with the majority shareholder accused of having breached a fiduciary duty to the minority owner. Now it seems that controlling shareholders of even privately held corporations have another potential adversary: the Securities Exchange Commission. The SEC recently sued Stiefel Laboratories and its then-controlling shareholder and CEO Charles Stiefel, alleging that they defrauded current and former employee shareholders out of more than $110 million by buying back shares in the company at undervalued prices prior to the sale of the company to GlaxoSmithKline PLC.
The complaint alleges that the defendants misled the employee shareholders, who had acquired the shares as part of a stock bonus plan, by concealing material information about the potential acquisition of the company by GlaxoSmithKline. Information regarding several offers from private equity firms to acquire stock in the company at a higher price than the valuation provided to employees was also allegedly withheld from employees. The complaint further asserts that the valuation that the company provided to employees was prepared by an unqualified accountant who used flawed methodology. Adding insult to injury, a 35% discount incorporated into the valuation was not disclosed to the employees.
The complaint cites, among other things, the company's repurchase of 800 shares from employees at a price equal to $16,469 per share in the months leading up to the sale to GlaxoSmithKline, which acquired the company for $68,000 per share. As a result of the reduced number of outstanding shares, the remaining shareholders (consisting mostly of Stiefel family members) received a windfall.
The SEC warns that privately held companies and their officers should be aware that federal securities laws are intended to protect all shareholders, regardless of whether they acquire their shares in a private transaction such as a stock bonus plan or on a public market. Corporate officers in corporations with stock bonus plans should take care to obtain appropriate valuations to support stock repurchases from accredited professionals using commonly accepted valuation methodologies. Stock option plans and corresponding summary plan descriptions should be carefully reviewed, with a particular focus on their stock repurchase provisions. All material facts must be fully disclosed to plan participants in a timely manner.
To avoid post-transaction cries of foul play from former shareholders, we often include “tail” provisions that allow the former shareholders to enjoy the same economic benefit of a major company transaction such as a sale or merger that follows the sale of their shares. Such provisions are usually of limited duration (e.g., twelve months). This protects the company and senior management from claims like those raised by Stiefel Laboratories employees after the expiration of the tail period.
Topics deemed “hot” in the context of mergers and acquisitions ebb and flow just as they do in all other aspects of legal study. When I first started practicing in the early 80s, I remember being taught to carefully include any post transaction covenant not to compete in the sale document as well as in a stand-alone agreement between buyer and seller(s). This seemingly unnecessary duplication of the post transaction obligation imposed on the seller(s) was required to provide multiple legal arguments for enforcing and amortizing the obligation and drive up the aggregate sums payable to the seller(s). Specific party agreement as to the allocation of the purchase price (and completion of Form 8594 for asset acquisitions) was deemed worthy of considerable negotiation.
Recent Tax Court and First and Ninth Circuit opinions, and this office’s own fourth quarter 2011 transactional work, seem to suggest the elusive covenant not to compete and personal goodwill have again become important tools for tax planning purposes. Who owns the goodwill is particularly relevant in the context of hospital purchases of physician practices where the fair market value of hard assets might not be enough to cover malpractice tail insurance let alone justify the physicians’ loss of control over their practice.
Under Section 197, certain intangibles must be amortized by the buyer, on a ratable basis, over a 15 year period beginning with the month in which such intangible is acquired. A Section 197 intangible includes “any covenant not to compete…entered into in connection with an acquisition (directly or indirectly) of an interest in a trade or business or substantial portion thereof.” But more and more courts refuse to enforce covenants not to compete in the context of the physician- patient relationship, concluding that such covenants are against public policy unless tailored to actually mean only non-solicitation.
Nevertheless, it has been common practice for business lawyers to continue to suggest that each physician in a group practice enter into an employment agreement or other entity document that imposes (or at least tries to impose) a covenant not to compete during and post-employment. In the absence of such pre-existing non-compete and specific claim to ownership of patient records, however, the selling shareholders and not the entity are arguably possessed of “personal goodwill”, an intangible asset owned by the selling shareholders. To avoid the double tax imposed upon the sale by a C corporation, maximize the benefits of a meaningful allocation of the purchase price in a sale transaction to intangibles or justify a larger signing bonus, it may be wise to reconsider owner non-compete provisions before the eminence of a sale transaction makes it too late to do so.
AMM attorney Michael Klimpl has been appointed acting County Solicitor for Bucks County following the announced retirement of the current Bucks County Solicitor Glenn D. Hains on January 3rd. Michael has served as Assistant Solicitor for the County since 1984 and will serve while the County Commissioners conduct a search for Hains’ successor.
The Bucks County Solicitor’s Office serves as general counsel for the County of Bucks and represents the Commissioners and all divisions and departments under the direction of the Commissioners. The Solicitor’s Office defends lawsuits against the County, and initiates lawsuits brought by the County. These include civil rights litigation and suits involving construction matters.
Solicitors prepare, review and/or supervise contractual obligations within the County. They handle state and federal compliance issues relating to the County, human resource/employee issues, real estate transactions from agreement through settlement, ADA observance and general employment law. The Solicitors advise on open space and agriculture preservation programs by evaluating properties, determining the scope and extent of easements, and reviewing appraisals.
The Office also coordinates and supervises all outside counsel and the activities of individual department solicitors.
Although many employers would prefer not to spend time and energy on completing periodic written employee reviews, a recent case from federal court illustrates the importance of this process.
In a recent case, the United States District Court for the Eastern District of Pennsylvania (covering Philadelphia and its suburbs), ruled that a discharged employee failed to prove that he was terminated because of his race – African-American.
The plaintiff in this case was hired by a pharmaceutical company as a sales representative. His performance was reviewed on a monthly and bi-annual basis. The monthly reviews were completed by a manager and consisted of a rating from one (lowest) to four (highest) on a variety of categories.
Based on generally unsatisfactory performance ratings, plaintiff was placed on a Performance Management Plan and was given 90 days to improve in various specified areas. With continued unsatisfactory ratings, plaintiff was terminated 73 days into the performance management plan.
Plaintiff thereupon brought a claim under federal and state law for unlawful employment discrimination.
The Court set forth the initial requirements for a plaintiff attempting to establish race discrimination (or other unlawful discrimination). Specifically, a plaintiff must demonstrate:
(1) is a member of a protected class; (2) was qualified for his position; (3) suffered an adverse employment action; and (4) suffered the adverse action under circumstances that give rise to an inference of discrimination.
In this case, the fourth element was at issue: whether plaintiff’s termination gave rise to an inference of discrimination on account of his race.
The Court, after analyzing plaintiff’s performance ratings, concluded that plaintiff could not demonstrate an inference of race discrimination. Plaintiff’s comparisons to Caucasian co-workers did not convince the Court, as these documented performance issues and employment history differed from plaintiff’s.
The Court also rejected plaintiff’s claims based on plaintiff’s beliefs that his manager spoke to him in a demeaning way. A subjective belief of racial discrimination is insufficient, the Court held, to establish an inference of discrimination.
Although not necessary for its ruling, the Court also found that the company had a legitimate non-discriminatory reason for terminating plaintiff: failure to successfully complete the terms of the performance management plan and uncorrected sales deficiencies identified by his managers.
Lesson learned: the company’s continuous and contemporaneous documentation of plaintiff’s performance was the critical factor in the Court’s dismissal of this case.
Anything short of these performance reviews would have caused the case to be sent to a jury – with results only to be guessed at!
Nobody wants a “Bad Actor” as part of its working group but, from the perspective of the founder of a startup, the Securities and Exchange Commission’s proposed “bad actor” rules may wind up causing more injury than antidote. The good news is that the SEC is proposing amendments to its rules to implement Section 926 of the Dodd-Frank Wall Street Reform and Consumer Protection Act to disqualify securities offerings involving certain “felons and other ‘bad actors’” from reliance on the safe harbor from Securities Act registration provided by Rule 506 of Regulation D. See 17 CFR Parts 230 and 239 (Release No.33-9211; File No. S7-21-11. I agree with that effort but, since Rule 506 is one of the three exemptive rules for limited and private offerings under Regulation D, and by far the most popular, it is important that the definitions are carefully tailored. Not all “disqualifying acts” are equal, and “covered persons” and the “bad actor” disqualification should apply only to issuer’s management and controlling equity holders rather than any holder of 10% or more of the entity’s equity. And, even if those changes are not made, the reasonable investigation standard for determining whether “covered persons” are “bad actors” should be no more onerous than the current standard for accepting money from “accredited investors”. Without these changes to the proposed rules, the process of compliance will be beyond the budget and timeline of most startups.
Antheil Maslow & MacMinn are proud to support the Bucks County Opportunity Council's 15th Annual Economic Self-Sufficiency Graduation and Achievement Awards Ceremony and Dinner on October 12, 2011 and encourage others to support this wonderful local organization which accomplishes real positive change in the lives of individuals, and our community.
The mission of Bucks County Opportunity Council, Inc. is to empower low-income people in Bucks County to achieve their goals for sustainable improvement in economic self-sufficiency by a personalized case management approach founded on education and partnership with the community.
The Economic Self-Sufficiency Achievement Awards and Graduation is held annually to celebrate the success of hard-working, motivated Economic Self-Sufficiency Program participants who have surpassed all of the benchmarks in the Opportunity Council's unique, research-based self-sufficiency standard. The event also inspires Economic Self-Sufficiency Program participants on the path toward graduation and pays tribute to the supporters, donors, volunteers and staff that contribute to the success of the program.
To learn more about this wonderful program, visit the BCOC website: http://bcoc.org/about/