Trump vs. Bannon, and The Enforceability of Non Disparagement Clauses

Trump vs. Bannon, and The Enforceability of Non Disparagement Clauses

Contracts, Employment Agreements, Non-Disparagement
By now, most of my well-informed readers have heard of the war-of-mudslinging between President Trump and his former campaign mastermind/chief strategist Steve Bannon.  As a Phoenix business attorney, one aspect of our President's latest feud that was of real interest was the cease and desist letter sent by Trump lawyer Charles Harder to Bannon accusing the former White House staffer of being in violation of a non disparagement agreement he entered into when he joined the Trump presidential campaign. In my practice, I have noticed the increasing use (and request from clients to integrate) such clauses in both business and employment agreements over the past several years.  The question is, are such clauses actually enforceable? Non Disparagement clauses are (generally speaking) enforceable The short answer is: yes.  The handful of…
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Who Pays The Professional Fees in Sale of an Arizona Business?

Who Pays The Professional Fees in Sale of an Arizona Business?

Business Sale, Contracts, Sale of Business
As a Phoenix corporate and business lawyer, every so often I'm asked by clients new to the process of buying a business or selling a business which side will pay for the professional fees for the attorney, accountant, appraiser, and other services that are often essential to the transaction. The Attorney response every client hates These clients are usually disappointed when I give them that most lawyerly of all answers:  "It depends."  This is because there is no set rule or law that requires one party to a business sale or merger or the other to pay for the lawyer or accounting fees.  As with the terms of most private, business-to-business agreements, things are pretty free form and up to the contracting parties themselves to decide. However, in my experience…
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3 Situations Where Your Business Needs a Non-Disclosure Agreement

3 Situations Where Your Business Needs a Non-Disclosure Agreement

Contracts, Trade Secrets, Unfair Competition
Doing business in today's world often necessitates sharing private and confidential information with other persons or companies. To make sure that the party receiving such information maintains confidentiality, a non-disclosure agreement, or "NDA", is often used. When would an NDA come up? In general, an NDA makes sense any time you want to share information of value to your business. A well-crafted NDA can help to make sure that the other party doesn’t use or exploit that information for their own gain (or that of a competitor) without first getting your approval. While they are by no means the only scenarios that come up, three of the most common situations I see in my practice where an NDA is highly recommended include: 1. Sale or licensing of technology. If you…
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So You Want to Invest in Your Friend’s Business (Part Two)

So You Want to Invest in Your Friend’s Business (Part Two)

Business Formation, Contracts, Limited Liability Company, Operating Agreement, Sale of Business
In Part One, I talked about some of the more important questions overlooked (or usually glossed over) by people looking to invest in a friend's existing business. In this part, I'll delve into some of the key documents used to formalize the purchase of an interest in a business, what they are for and why they are important. For purposes of this article, we are going to assume that the business being invested in is formed and operated as a Limited Liability Company (LLC), although the concepts here are applicable to a corporation or partnership, too: Operating Agreement -  As I touched on in Part One, this is a document that hopefully already exists. You should insist upon a complete copy of the version executed by your friend and his…
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Due Diligence Essential for Businesses When Leasing Space

Due Diligence Essential for Businesses When Leasing Space

Commercial Leases, Contracts, Real Estate
All too often in the commercial real estate world, we think about due diligence strictly as it applies to the purchase of commercial property or land. However, doing thorough due diligence can be just as important for a business looking to lease commercial space (whether office, retail, or industrial). A recent case that came to our office illustrates this. The tenant was a business looking to move into an older yet upscale retail shopping center in North Scottsdale. The tenant had been unhappy in their current location and with their current landlord and its property manager for many years. They were eager to move and the space at issue was a second floor one in the shopping plaza they had been dreaming about moving to for awhile. The tenant's business…
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