Arizona Business Laws

Hello, I’m Michelle Lombino, a partner at Jaburg & Wilk, and a business lawyer and certified understanding-based mediator.

Having a Positive Mind

Frequently when people are entering into deals, the positive mindset dominates. They’re very eager, they’re very excited to get the deal done. They’re willing to compromise with the other party. But at the same time– oftentimes that is, they will rush through things they don’t want to confront or address issues that they fear might derail their deal.

It is fashionable to tap the virtues of the positive mind; and the positive mind is beneficial. It focuses on what works, on results, it’s action oriented. But if the positive mind dominates, parties may be easily fooled. They may not consider the risks or the potential pitfalls of a problem. Over the years I’ve been involved in many a litigation involving Ponzi schemes, and I’ve thought that those Ponzi schemes might be the result of the positive mind dominating.

Having a Negative Mind

Yes, at its best, the negative mind sees the risks and potential downfall of a situation. However, taken to its extreme, the negative mind can lead to anger, intolerance, and a sense of frustration. Many a settlement negotiation has fallen apart because the negative mind has predominated.

Changing Your Mindset

Yes, first by recognizing the benefit of using both the positive mind and the negative mind, and using both approaches. And second, by cultivating a neutral mind that can consider both what could go right and what could go wrong, and from that place deciding the best approach.

By: Michelle Lombino

My name is Neal Bookspan. I’m a partner at Jaburg and Wilk. I help my clients manage their legal risks in the area of litigation, transactional work, and creditor’s rights.

How do you approach advising businesses or business owners about the legal risks they face?

I try to help my clients manage their legal risk. I consult with them on all aspects of their business and legal issues. This can include their employees who are both an asset and a burden, the contracts they have with customers and vendors, insurance issues. In doing this, I talk to them about what they’ve got in place, documents they could need, documents they have that might need to be revised, and try and figure out whether there’s something I can help them with, or possibly one of my partners can help them with because of the various specialties that we have within our firm.

What types of legal risks do businesses or business owners face?

Business owners face all kinds of legal risks. One of the initial things that jumps out usually is the risks relating to employees. In many businesses, they have a lot of confidential or trade secret information. It could be just the processes they use to work or their customer list. In looking at these items, a lot of times they’ve not put documentation in place to protect them if an employee leaves or is terminated. So a lot of times, we’re looking at how can we do things to help protect the business owners in the event that something does happen.  What we live in is the hypothetical world of the what ifs and so we want that when it comes to the real world and the reality of what the employers have to deal with, that they’re able to have the best position to maintain their business, and make sure people like former employees are not trying to take their business from them.

By: Neal Bookspan

My name is Neal Bookspan. I’m a partner at Jaburg and Wilk. I help my clients manage their legal risks in the area of litigation, transactional work, and creditor’s rights.

What is an Alternative Dispute Resolution?

Here in Arizona, our superior state court has an alternative dispute resolution department. And what that is, it’s about trying to get cases resolved in some manner.   When it comes to state court it involves settlement conferences but it also can mean mediation, arbitration, and then there’s a whole bunch of different variances of these type of situations. And what it is, is it’s a method for parties to try to take control of their disputes and get them resolved in a manner that is hopefully more efficient, less expensive, and lets them move on in their business.

What are mediation and arbitration?

A lot of people get mediation and arbitration confused. Mediation is where you use a neutral third party to help resolve or settle a dispute. It would also be referred to as shuttle diplomacy. Usually parties are put into separate conference rooms and the mediator shuttles between these room trying to help people resolve their disputes.   Arbitration is where you use a third party to serve as a judge. These people usually are retired judges or a very experienced practicing attorney. And what they do is they actually serve as the judge. It is a much more informal proceeding. It is usually held in a conference room and – while it has all the seriousness of a real trial in front of a judge, and the same results – it usually can be done in a manner that will make it happen faster than you can get to trial in court, hopefully, less expensively. And they’re also other possibilities including making it a binding arbitration so that no one can appeal and there’s finality. Which even when parties aren’t happy with the decision, it at least allows them to move on and move forward from the dispute.

By: Neal Bookspan

My name is Neal Bookspan. I’m a partner at Jaburg and Wilk. I help my clients manage their legal risks in the area of litigation, transactional work, and creditors’ rights.

Is it possible to diffuse the tension and emotional nature of a dispute between business partners?

It is possible to diffuse the tension between a partnership or what we’d call a almost corporate divorce situation. In these situations you’ve got shareholders or members at odds and entities. It can affect the day to day running of a business. It can affect employees, customers. And one of the things that you have to look at is when you get a lawyer involved it helps take the tension and emotion out of the situation because you’ve got a third party who is removed form the dispute itself who can look at things with a clear eye and business judgement to help advise the client in a manner in which will healthfully help put things on a business level and not a personal level.

Is it really possible for a client to avoid expensive and extended litigation?

It is possible for a client to avoid extended and expensive litigation sometimes. Any litigation is very lengthy and expensive no matter how you look at it. But there are ways to try and resolve disputes early on and try and avoid the situations that result in endless amounts of cash being spent and fees being incurred. A lot of times what I utilize with clients at this point is pre-litigation mediation, either formal or informal settlement and mediation talks, anything to try and resolve the situation. Or come to some type of partial settlement that will help streamline the litigation, make it shorter, and hopefully reduce expenses for not only our clients but all the parties which always helps matters get resolved.

By: Neal Bookspan

First Meeting With Attorney

I’m Neal Bookspan of Jaburg Wilk. I’m an attorney who helps businesses and business owners manage their legal risks. The first meeting between a new client and an attorney is very important. To prepare for that meeting, it’s always good if the potential client not only spends the time to outline their issues and know the facts and issues that they’re coming to the attorney about. But then to not only prepare the documentation or bring the documentation, but to actually review their documentation while they’re outlining it. Because the more that they remember and the more that they know, the more successful that first meeting can be in figuring out whether they have a situation that the attorney can help them out or not.

By: Neal Bookspan

Hi. I’m Craig Martin, and I do employment law here in the firm.

What is “at-will” employment in Arizona?

At-will employment means that an employer can fire an employee anytime the employer wants, as long as the firing is not for an illegal, improper, bad reason. In turn, the employee can leave anytime they want. It’s a very important principle in the law in Arizona and in most states.  Because basically it’s one of the best defenses an employer has when an employee claims they were wrongfully terminated.

What is a perfect employment case?

I look for the best employment case when I’m representing employees that I can find, and they’re certain factors that I look for to make the best case. Although it’s not necessary a long-term employee who’s been badly fired is better than a short-term employee. I look for whether there is a valid legal claim. Sometimes an employee is terminated for a reason that’s unfair, but that does not equate to a valid legal claim.  I look for real damages, I want to find the case where the employee has suffered real damages because of an employer’s firing on one day, and the next day gets a better job that’s far less likely there are any damages.  And in the end what I look for is a gut reaction that what the employer did was wrong.

Are all types of discrimination illegal?

People ask me about discrimination all the time. The discrimination that is illegal is the list of discriminatory actions that are listed in the law, and those include things that people have heard of, such as race, religion, national origin.  The first thing I want to do is hear their story and look at their documents. It’s important in assessing a case, to see whether the employee story fits, if it’s credible. And it’s important to see what documents they have, because it can make a major difference.  One of the problems I have in representing an employee is that, I only hear their side of the story, and it’s very important to me to hear what the employer has to say, because often times the employee hasn’t been told the whole story. I have to get the whole story when I assess a case.

By: Kraig Marton

Hi, I’m Kraig Marton and I do employment law here in the firm.

Why do you call employment law alphabet soup?

Employers have to know so much when they’re engaged in the field of employment law. And there’s so many acronyms that are used that just learning them becomes difficult. There’s things like FMLA. There is USERA. There is COBRA. There’s HIPAA. One can go on. Now there’s the  ACA, some call it Obamacare just keeping track of the initials for the laws is hard much less keeping track of the actual laws that govern the employment relationship.

Which types of employers are more susceptible to get sued?

What I find is that an employer with (50) to (100) employees – who’s grown fast because it was a family run business – are those who are most likely to get sued. And the reason for that is, they grew fast and the controller or the sister is handling the HR functions instead of a HR professional. And so what happens is that if you’re not familiar with all of the laws that govern employment law, you’re going to make a misstep. You know the cost of a lawsuit these days is tens, probably hundreds of thousands of dollars to defend when an employer gets sued. And it’s a no-win proposition for the employer because if the employer loses, they not only have to pay the other sides attorney’s fees, they also have to pay whatever damages the jury assesses. On the other hand, if the employer wins, almost for sure, they don’t get back their attorney’s fees nor do they get back any real benefit other than vindication. And so what occurs is the cost of a lawsuit can be tremendous in administrative cost, in financial cost, and just in morale. And so if an employer pays attention to employment law in advance, and does things right, and follows the law, and treats employees fairly, they’re not going to get sued. Proactive is the way to go.

By: Kraig Marton

Mindset in Deals versus Litigation

Hello, I’m Michelle Lombino, a partner at Jaburg & Wilk, and a business lawyer and certified understanding-based mediator. Are There Differences in Clients’ Mindsets in Deals Vs. Litigation?Frequently when people are entering into deals, the positive mindset dominates. They’re very eager, they’re very excited to get the deal done. They’re willing to compromise with the other party. But at the same time– oftentimes that is, they will rush through things they don’t want to confront or address issues that they fear might derail their deal.

Drawbacks to Positive Thinking in Legal Transaction

It is fashionable to tap the virtues of the positive mind; and the positive mind is beneficial. It focuses on what works, on results, it’s action oriented. But if the positive mind dominates, parties may be easily fooled. They may not consider the risks or the potential pitfalls of a problem. Over the years I’ve been involved in many a litigation involving Ponzi schemes, and I’ve though that those Ponzi schemes might be the result of the positive mind dominating.

Benefits to Negative Mind

Yes, at its best, the negative mind sees the risks and potential downfall of a situation. However, taken to its extreme, the negative mind can lead to anger, intolerance, and a sense of frustration. Many a settlement negotiation has fallen apart because the negative mind has predominated.

Clients Help Themselves by changing their mindset

Yes, first by recognizing the benefit of using both the positive mind and the negative mind, and using both approaches. And second, by cultivating a neutral mind that can consider both what could go right and what could go wrong, and from that place deciding the best approach.

 By: Michelle Lombino

I’m Beth Cohn. I’m an attorney at Jaburg Wilk, and I work in the area of business transactions.

How Do I Prepare to Sell My Business

What people need to do first is to determine whether they have a buyer for their business. And a lot of times they’ll come in and they’ll say, “I want to sell my business,” and I’ll say, “Who are you going to sell it to?” And they don’t really have an idea of how to go about finding a buyer.

Can’t Find a Buyer

Sometimes they will sell their business, and other times they can’t find a buyer, so what they look at is that they look at the possibility of children coming into the business. Or they sometimes look at the possibility of employees buying their business.

How Should I Transfer Ownership to My Children

Sometimes what they’ll do when they’re transferring to their children is that they may sell interests in the business to their children, and what the parents will do is that they will decrease their own compensation so that what they’re getting is payments for their business interests instead of getting paid salary. So that works out really well, and it creates the cash that the parents need, and it gives the children the ownership in the business.

What Are My Options Outside of Family Members

The two choices are to try to find a buyer during their lifetime so that they can at least get the liquidity from the business and enjoy that part of their efforts and labor. Or after they die it’s sometimes very difficult to sell the business, because when the key person dies a lot of times the value of the business goes down significantly.

By: Beth Cohn