Saturday, 31 December 2011 20:01

How to win a “bet-the-company” lawsuit

Smart Business spoke to Harvey Friedman, a partner at Greenberg Glusker Fields Claman & Machtinger LLP, about making sure your company has the right litigation strategy when it’s all on the line.

A number of years ago, I represented an insurance company which sued a law firm for breach of fiduciary duty. The case was tried by a jury. The defendant was represented by a well-known, highly regarded law firm. I thought that the defendant’s lawyers did a professional, competent job at trial. After a short deliberation, the jury came in with a multi-million dollar verdict in favor of my client — despite the fact that it was an insurance company.

I had the opportunity to interview the jurors after the trial. I learned that the jurors had a difficult time relating to the defendant’s lawyers. Some of the jurors’ statements have greatly influenced the way I have tried bet-the-company cases since then. Those statements include: make the facts easy to understand, tell a story, talk to (not down to) jurors, avoid sarcasm or being overly aggressive, use non-legal terms (greedy instead of egregious, rip-off rather than unconscionable, stole instead of converted, doesn’t make common sense instead of illogical, fair instead of equitable), and establish the theme that what your client seeks is fair, right and makes common sense.

In addition to how to communicate to a jury, the following is a list of tools a defendant should employ to enhance its chances of winning a bet-the-company case.

Choose the best forum

  • First, avoid arbitration if possible. For many reasons, arbitrators often split the baby. Additionally, there are no meaningful rules of evidence, which allows either side to submit evidence whether it’s relevant or not, and there is no meaningful right to appeal if you are unsatisfied with the arbitrator’s decision.
  • Second, if you are a defendant, you should attempt to have the case litigated in federal court, not state court. A unanimous verdict is required in federal court, whereas many state courts, including those in California, require only 9 of 12 juror votes for a verdict. Jurors are generally more conservative in awarding damages in federal court and it is easier to obtain summary judgment, a determination made by the court without a full trial. Lastly, the interest payable on a judgment is much higher in state court (10 percent per year) than in federal court (approximately .13 percent per year).

Be the plaintiff. Even if you are the party against whom a claim has been asserted, make a peremptory strike; become the plaintiff by being the first party to file the lawsuit. Many jurors believe a plaintiff would not have filed suit unless the plaintiff had suffered damages. Filing suit first may enable you to choose federal court, instead of state court as the forum. Moreover, if the case needs to be filed in state court, you may be able to select the state if you file suit first. In addition, a plaintiff speaks first and last, both in presenting evidence and in the summation. This can be a significant advantage.

How to handle the lawsuit

  • If you contact most of the known experts on a particular issue, and thereafter choose one, the experts not chosen may disqualify themselves if asked by the other side to provide expert services. As a result, contact witnesses immediately, particularly expert witnesses.
  • Attack punitive damages at every stage in the litigation. You don’t want a jury to decide the issue. Many judges don’t like punitive damages and will grant a motion to strike them from the case.
  • The defendant usually has the right to take the plaintiff’s deposition first.  It is important for a defendant to take the plaintiff’s deposition and pin him down before he knows the particulars of the defendant’s defenses.
  • It is important to make a summary judgment motion because, even if it is denied, it is an excellent discovery tool. A defendant can learn about the evidence and witnesses the plaintiff intends to use at trial from the opposing papers the plaintiff files.

Hire a good jury consultant. Experienced jury trial lawyers believe that 75 percent of the outcome of a jury trial case depends on jury selection and opening statement. Although an experienced trial lawyer can do a good job in picking a jury without the aid of a jury consultant, the use of one can improve the possibilities of a “good” outcome to an “exceptional” outcome.

In addition, two important aspects of a persuasive opening statement are themes a lawyer is going to develop during the trial and “buzzwords” — words that a jury may relate to. A good jury consultant can help develop themes and formulate buzzwords.

Hire the best lawyer. There is a tremendous difference between a bench trial and a jury trial.  There are many lawyers who do an excellent job trying cases to a judge but do not do well trying cases to a jury. Lawyers who do well trying cases to a jury have exceptional people skills.

The usual procedure is to make a decision on the basis of references and an interview with the lawyer. The references often come from friends or clients of the lawyer and can be unreliable. At the interview, the lawyer typically will toot his horn and tell you about the successes he has had — which are often exaggerated.

The best way to choose between lawyers you are considering is to have your general counsel make contact with judges — sitting and retired — to discuss the trial attorneys you have identified and with lawyers who have opposed the trial attorney you are considering. Judges and opposing counsel have no axe to grind and will provide opinions which are unbiased and more reliable than a lawyer who has tooted his own horn.

It is almost certain that a bet-the-company lawsuit will be tried by a jury. For the best possible outcome, you need to choose a lawyer who knows how to relate to the jurors and can persuade them that your cause is fair, right and makes common sense.

Harvey Friedman is a trial lawyer at Greenberg Glusker Fields Claman & Machtinger LLP. He has tried more than 100 cases to conclusion, and for many years has been recognized by Best Lawyers in America in the Bet the Company and Commercial Litigation categories. Reach him at HFriedman@greenbergglusker.com.

Published in Los Angeles

It can bring spouses together or it can rip them apart. It can be a labor of love or hard labor. It can be a fond memory or an experience to be forgotten. Smart Business spoke to Dennis B. Ellman, a partner at Greenberg Glusker Fields Claman & Machtinger LLP, about how, armed with a bit of knowledge, you can build a home that serves you and your family and have fun in the process.

Assemble the right team. Your financial success was likely achieved by hiring the best. The success of a construction project requires no less.

The Owner’s Representative (OR). Unlike a general contractor or design professional, an OR is a project manager who represents only your interests as the owner. Most are former architects or contractors, so their skill set is well suited to custom home development.

An OR’s responsibilities include negotiating contracts, preparing and tracking budgets, assisting in value engineering, attending weekly job meetings, reviewing invoices from the architect, contractor and consultants, confirming that all required lien waivers and releases have been submitted, reviewing, insurance for compliance with contract requirements, etc.

The Architect. Selecting an architect includes answering these questions: Do I want and can I afford a well-known architect? Does the architect design in the style that I prefer? Will the design meet my objectives or only serve the architect’s likes? What is the average cost per square foot of the homes designed by this architect? Is the architect someone I will enjoy working with?

Architects are typically compensated based upon a percentage of construction cost (between 10 percent and 20 percent), and are paid as their work progresses. This rate structure can lead to mistrust when the architect recommends a more expensive design or more costly materials. Consider suggesting a fixed fee based on the estimated cost or size of the home, which will be subject to adjustment only if significant changes are made.

Understand what the architect’s fee includes. Some include the cost of mechanical, electrical, plumbing and other engineers whose services are required for the preparation of the architect’s plans. Others do not include these consultants, in which case the owner must pay these in addition to the architect’s fee. Engineering fees can often total between 1 percent and 3 percent of construction cost. When comparing one architect’s fees against another, make certain you know what services are included.

The General Contractor (GC). Many custom homebuilders are excellent builders and people of integrity. Others are not. Owners should perform extensive due diligence before engaging a GC. Check personal references, visit homes that the GC has built, and ask your lawyer to investigate prior litigation to which the contractor has been a party.

The Attorney. Make certain the attorney you hire is not a generalist, but has extensive construction contract experience. Ask about projects in which the attorney has been involved. An experienced attorney may also be able to recommend potential ORs, architects and GCs.

Sign the right contract.

Negotiated vs. Bid Contract. There are two methods of engaging a GC. The first is to wait until plans and specifications have been completed and then send them to several GC’s requesting bids. This process should result in a truly competitive price for the construction of your home.

The second method, often referred to as a “negotiated contract,” is one in which the owner, with the assistance of the OR or architect, selects a specific GC and negotiates its fees (profit) and general conditions (project site and supervision costs) prior to plan completion. Once awarded the contract, the GC will be required to obtain a minimum number of bids from each subtrade. This enables the owner to hire a GC as the plans are being developed, leveraging their expertise for estimating costs and value engineering.

Contract Form. The most common construction contract forms are “cost plus” and “fixed price.” A cost plus contract pays the contractor the actual cost to build the home, plus a fee typically stated as a percentage of that cost. There is no cap or maximum price, although an estimated budget should be included. Require that all trades be bid to at least three potential subcontractors.

A fixed price contract sets forth a price for the completed house; it also includes cushion to protect the GC, which you will pay whether or not it is needed. Any changes during construction will likely increase the price.

A hybrid of these two contract forms is the “cost plus subject to a guaranteed maximum price” (or GMP) contract. As implied by its name, the owner pays the contractor’s actual cost of the work plus an agreed upon fee, not to exceed a maximum price. These contracts typically incentivize the contractor to complete construction for as little cost as possible by giving a percentage of “savings” (usually between 25 percent and 40 percent).

There are certain protections that should be included in all construction contracts. Since contractors are paid as the work progresses, the owner should be permitted to withhold a percentage of what would otherwise be due the contractor. This so-called “retainage,” which is typically 10 percent and paid upon job completion, is the owner’s insurance that, if the contractor fails to complete the work, funds will be available to pay any liens and the additional costs in securing a new GC.

A well-drafted construction contract should protect the owner from contractor claims for additional compensation. Representations should include confirmation that the GC has thoroughly investigated the project site, carefully reviewed the plans and found them to be complete and without inconsistencies, and that the contract price includes both work shown and work reasonably inferable from the plans.

Time to Complete. The contract should have a date for completion. The GC’s failure to complete by this date will give rise to damages. Contractors are typically entitled to extensions of time for causes beyond their control, such as inclement weather or labor strikes. Exceptions should be narrowly defined.

Know yourself and have fun

If you labor over the smallest of decisions and then second guess yourself, or if you approach every task as a work in progress changing course every step of the way, consider buying a completed home. Too many projects exceed their budget due to costly changes and owner-caused delays during construction. But, if you are reasonably decisive and secure, then consider a custom home. Remember, the process should be fun. No matter how wonderful the home you build, no one will be happy if it results in family strife.

Dennis B. Ellman advises and represents real estate developers, brokers, investors and affiliated construction and architecture professionals in financing and loan workouts, lease negotiations, construction contracts, project agreements, and all aspects of real property acquisitions and dispositions. He can be reached at DEllman@greenbergglusker.com or (310) 201-7417.

Published in Los Angeles

Smart Business spoke to William Walker at Greenberg Glusker Fields Claman & Machtinger LLP about how to navigate the legal system in other countries and use it to your advantage.

I have been called many times by clients located in the United States who have been sued overseas. In addition to being unhappy about being sued at all, the prospect of litigating in a foreign country can be intimidating and daunting. Fears of the unknown, and of being “home towned,” are common, and understandable, initial reactions. In some fora, they are very real problems.

However, foreign litigation is often nothing to fear. In fact, depending on the country, foreign courts can often be much better fora for litigation than U.S. courts, even for U.S. companies. There are many reasons why.

First, the speed and efficiency of foreign courts can be impressive. At Greenberg Glusker, and at my previous firm, I worked on many litigations in Europe, particularly in Germany. Lawsuits there are often completed, from the filing of the complaint to the date of judgment, in only six to eight months.

And, the process of getting to judgment involves much less expense. In Germany, there is no pre-trial discovery. That means no depositions, no interrogatories, no requests for admissions. The parties do not produce their documents to each other. There is no “e-discovery,” and thus no related “e-vendor” expenses. Although a party may move the court to order an opponent to produce documents, such motions are rarely granted.

Instead, the parties proceed with the information they have in their possession and use it in their complaint, answer and any replies to set forth the legal and factual arguments as to why they should win. Witnesses whose testimony is relevant to particular arguments are also listed. If the parties think that expert witness opinions would support a claim or defense, they also state that in the complaint or answer. It is up to the court to decide whether it wants an expert opinion at all. If it does, it will appoint a neutral expert.

Once those pleadings are filed, the court sets a hearing date and time. Typically, one hour is allocated. At that hearing, the merits of the case will be considered. The courts often do not hear witnesses. Instead, they rely on the written submissions discussed above, and on the oral arguments of counsel at the hearing. Frequently, the court issues a judgment a few weeks after the hearing.

That sometimes takes American parties by surprise. Familiar with the American system, in which the initial hearing is a simple status conference, they fail to include all of their arguments in their papers and are unprepared to fully argue the case at the hearing, with negative consequences.

But with proper advice from counsel with knowledge of both the foreign and U.S. legal systems, those misunderstandings can be avoided and significant tactical and strategic benefits can be obtained.

For example, the absence of pre-trial discovery creates tremendous savings in attorneys’ fees and costs. That is particularly so in the era of “e-discovery,” which in the U.S. leads to substantial attorneys’ fees, disruption to a client’s business, and massive vendor bills that can dwarf the attorneys’ fees.

Juries are not used in the expeditious hearing process described above, which creates further substantial savings of time and money. If a party would rather proceed in front of judges instead of a jury, this is a significant advantage.

Punitive damages are also not available in Germany and in most other civil law countries.

And, perhaps most importantly, a good foreign forum may present excellent opportunities to seize the initiative from litigation opponents and knock them back on their heels, sometimes decisively. A party threatened with litigation in the U.S. can go to court overseas either before being sued in the U.S., or even sometimes after.

U.S. plaintiffs rarely expect to be sued overseas by the defendant. A foreign lawsuit brought by a defendant, or someone who has been threatened with a lawsuit in the U.S., means that the battle will not be fought solely on terrain chosen by the plaintiff.

Even better, the speed of some foreign fora can force the U.S. plaintiff to assert its claims in the foreign forum in the form of counter-claims. That is because if the U.S. plaintiff does not do so, then the U.S. plaintiff runs the risk of a foreign judgment being rendered only for the claims in the defendant’s foreign lawsuit. The defendant can then bring any foreign judgment to the U.S. and move the U.S. court for recognition of the foreign judgment under U.S. law and a ruling that, based on the foreign judgment, the U.S. case is res judicata and should be dismissed. Most U.S. states have statutes that provide for the recognition of foreign judgments, for example, the Uniform Foreign-Country Money Judgments Recognition Act, California Civil Procedure Code Section 1713 et seq.

Strategically, even an adverse foreign judgment might sometimes be preferable to the prospect of defending a lengthy and costly litigation in the U.S. In the event of an adverse foreign judgment, in any res judicata motion brought in the U.S., the U.S. defendant can argue that the plaintiff has already obtained relief through the foreign judgment, and that there is thus no need for the U.S. case to proceed. If the defendant is overseas, a foreign judgment allows the defendant to argue in the foreign court that a later U.S. judgment on the same, or similar, claims should not be enforced in the face of the foreign judgment.

The potential advantages are not limited to defendants. Plaintiffs usually have the same interests in limiting expenses and achieving a quicker result. Sometimes the prospect of lengthy and costly litigation deters plaintiffs from bringing otherwise meritorious claims. In such circumstances, the right foreign forum can provide a good alternative.

This is obviously a very general discussion, and each case has its own complexities. However, I have seen the foreign litigation strategy work many times in seemingly intractable disputes. For parties seeking better alternatives than years of expensive and disruptive litigation in the U.S., litigating overseas can often offer substantial advantages that really are “Smart Business.”

William “Bill” Walker’s practice focuses on representing entertainment companies and domestic and overseas corporations in all aspects of business and commercial litigation, including in California state and federal courts, domestic and international arbitrations, and assisting representation with respect to overseas litigations and transactions, especially in Germany and Greater China. He can be reached at WWalker@greenbergglusker.com or (310) 201-7482.

Published in Los Angeles
Wednesday, 31 August 2011 21:01

Why arbitration remains the better option

Smart Business spoke with Stephen Smith, Managing Partner at Greenberg Glusker Fields Claman & Machtinger LLP about what makes arbitration a better choice for resolving business disputes.

Historically, arbitration was seen as a better means for companies to resolve legal disputes due to speed and cost. Matters could be resolved in months rather than years. Discovery was more limited. Business owners and managers believed that the overall cost (even after including the arbitration fees themselves) would be significantly less.

Having handled numerous arbitrations myself over the last ten years, I have seen firsthand that most of them have not been particularly fast, and extensive discovery was allowed in all but one case. Overall, the cost was probably no less than what it would have been had the dispute been resolved in court.

Nonetheless, arbitration remains a superior venue to resolve the vast majority of business disputes for reasons you may find surprising and perhaps counterintuitive.

Greater control

In an arbitration, both parties have a lot of control over who is chosen to hear and decide the dispute. In a case I handled a few years ago, my firm represented a French entertainment company in a dispute against a toy company located in California. The California company initiated an arbitration for breach of contract. Had the California company been permitted to pursue a jury trial in California court, it would have gained significant leverage over the French company given the pervasive anti-French sentiment that existed at the time. In the arbitration, on the other hand, we were able to have the matter handled by the International Centre for Dispute Resolution (ICDR) division of the American Arbitration Association (AAA). The ICDR provided us with a well-qualified list of arbitrators who were citizens of neutral countries. In the end, our case was arbitrated in front of a well-qualified English citizen who was the head of the international arbitration practice at a prominent New York law firm. He was fair, diligent and incredibly competent. We were very pleased with the choice, long before he ruled in our favor two years later.

Contrast that scenario to a court where you have almost no control over the choice of decision-maker. Judges are randomly assigned. In California state court, you may have the chance to eliminate the first judge chosen, but then you are randomly assigned again. Many lawyers believe that the second choice is never random despite what the courts promise, because in an uncanny number of cases, the second judge assigned to the case was worse than the first. Randomness hurts because the disparity between a good judge and a bad judge can be case-dispositive. Even if the matter is to be tried before a jury (where you can exercise some control through voir dire), the presiding trial court judge can have a tremendous influence over what the jury hears and sees. If the judge is really bad, the jury will not save you.

Also, speaking frankly, trial lawyers will usually admit that the quality of judging on average has fallen dramatically over the past decade. Judges are grossly underpaid. The best private practice lawyers are less and less interested in becoming judges because the pay disparity is simply too big. Judges are also terribly overworked. With recent budget cuts, the work simply cannot be competently and timely completed by the total number of judge “hours” available in the system. As a result, there has been a corresponding decrease in the attention paid to resolving the complicated and difficult issues that arise in business disputes.

More predictable application of substantive law

Even though arbitrators are not required to follow the law, they usually do and are more likely to reach the right result. Having previously practiced as lawyers or retired judges, arbitrators have an affinity for the law. In my experience, their attention to the law is much more thorough than that of a court. In the aforementioned matter between the French and California companies, the arbitrator’s award was extremely well-reasoned and nuanced.

There are three main reasons why arbitrators follow the law better than trial courts. First, arbitrators are paid for their time, while judges are not. It may be cynical to say, but even the most devoted public servant will spend less time analyzing the issues than a well-qualified arbitrator getting paid $500 or more per hour. Second, arbitrators can schedule a fair amount of time to consider the issue, while judges have too many cases on their dockets to consider any matter for more than a few minutes. Again, with government budget cuts over the last few years, the problem has become much worse. In many Los Angeles state courts, it takes many months to get a hearing date for any type of motion. You can imagine then how much time the court is actually going to spend analyzing it. Third, arbitrators are more qualified in business and civil law than most judges. Fewer and fewer business litigators are being appointed to the state and federal benches. Fewer and fewer business litigators even want to be appointed to the bench because they can make so much more money either practicing law or arbitrating.

You get what you pay for

The best talent follows the money and will spend the necessary time as long as they are paid to do so. As a result, I have found that arbitrators’ rulings are much more thorough and better reasoned than most trial court rulings, even though arbitrators are the ones who are not required to follow the law.

You always get to put on your case

Arbitrators are much more likely to permit the introduction of all of the relevant evidence. Anyone who has ever tried a case in court will tell you that no one understands the rules of evidence and no judge applies them properly. The rules are archaic and riddled with so many exceptions and exceptions to the exceptions that it is anyone’s guess what will actually be allowed into evidence. Courts of Appeal must focus a tremendous amount of effort determining whether the evidentiary error was prejudicial simply because, if they reversed all cases for error alone, every case would be reversed.

On the other hand, while arbitrators generally follow substantive law, they do not follow the rules of evidence, except in the broadest sense. If it is relevant, it is admitted 99 times out of 100, even if it might run afoul of the hearsay rule, for example. Arbitrators are sophisticated enough to understand that such evidence should be entitled to less weight, but they will let it in nonetheless and consider it as far as it goes. This really matters in terms of your ability to predict with confidence that the case you intend to present can really be presented. Often, in trial, a very important part of your case may never come into evidence because of the vagaries of the rules of evidence and the whim of the judge about how to apply them. If that happens, you are then placed in the position of having to restructure your presentation on the fly and are left with a puzzle missing an important piece.

In my most recent jury trial, the defendant, who had licensed my client’s product, was required to run print advertisements to promote it. One of the issues turned on whether the defendant had actually run an advertisement in a particular Sunday newspaper circular. We had an original of that newspaper circular, which contained no such advertisement for the product in question. The judge refused to admit the circular on the ground that it was hearsay, even though it was being offered only to show that the act of advertising had not even occurred. As a result, my presentation proving false the defendant’s statements that it had run the advertisement was dramatically diminished. My best piece of clearly admissible evidence was never allowed in. Such a seemingly obvious error would never have been made in an arbitration because arbitrators would not care whether it was hearsay or not. They would only care whether it was relevant. Given that the issue was whether the advertisement had run at all, one would assume that the original circular in which the licensee claimed the advertisement was run would be pretty darn relevant. So, if you want to be assured of actually being able to put forward your entire case, you should choose arbitration.

Efficiency

The arbitration hearing is a much more efficient use of time (and therefore expense) than a trial. Concurrently with a trial, the judge almost always must conduct other judicial business — most often, law and motion practice in other cases. Also, the public employees who work in state and federal courthouses are subject to strict wage and hour requirements and/or union benefits that significantly shorten the effective length of any given business day. If there is a jury, then the breaks occur more often and last longer. An arbitration hearing, on the other hand, can start at 8:30 a.m. or 9:00 a.m. and go until 5:30 p.m. or 6:00 p.m., with a one-hour lunch break and one short break in the morning and afternoon. As a result, a good rule of thumb is that for each day of arbitration, one can expect two days of trial (or three if it is a jury trial). In the jury trial I mentioned above, in more than one month of trial time, we collectively spent a total of seven full days putting on both side’s cases.

Confidentiality

Finally, arbitration proceedings can be kept confidential. In business disputes, one side or the other wants the dispute to be resolved outside of the public eye. It is almost impossible to achieve confidentiality in a judicial proceeding. Our courts are open to the public and, while a court may exclude the public from the courtroom for a short period of time, for example when a trade secret document is being discussed, the courtroom will otherwise remain open to anyone who wants to be present, including others in the industry and the press. Arbitrations are private, and they generally take place on private property in a conference room. Access can be controlled, and by contract the parties can agree that the substance of the dispute must be kept confidential.

In sum, while the historical reasons for choosing arbitration may no longer exist, arbitration does remain the default choice for resolution of business disputes. Greater control, better decision-making, predictability, efficiency and confidentiality create an ideal atmosphere for ensuring your dispute has the best opportunity be resolved fairly.

Stephen Smith serves as Greenberg Glusker’s Managing Partner. His law practice focuses on representing entertainment companies in the motion picture, television and interactive gaming industries, and real estate development companies, and in providing those companies with legal counseling related to all aspects of their businesses. He can be reached at (310) 785-6895 or SSmith@greenbergglusker.com.

Published in Los Angeles

Smart Business spoke to Lee Dresie, a partner at Greenberg Glusker Fields Claman & Machtinger LLP, about ensuring that your business does not assume all the risk in a transaction by carefully examining form contracts.

Form contracts account for more than 80 percent of all agreements used to complete business transactions today. That percentage may be even higher when it comes to commercial real estate transactions like the ones you signed to acquire a corporate headquarters or satellite offices.

Unfortunately, many executives do not carefully review the specifics of a form contract before signing. Instead, they assume the form contract to be an agreement equitable to both parties. However, unless the form is an industry-neutral form such as one from the AIR Commercial Real Estate Association or Commercial Association of Realtors, terms in a standard form contract are designed to favor the party that presents it.

To limit your company’s risk, it is vitally important to be able to recognize and negotiate unfavorable provisions out of form contracts. This may necessitate a call to in-house or outside counsel with expertise in the area.

By negotiating the form contract presented to him, a savvy building owner in Los Angeles was able to collect 15 years of rent from an outdoor sign company even though the sign company was prevented by law from constructing a sign on the building. The building owner had been approached by a well-known outdoor sign company about leasing the roof of his building for a large billboard. After reaching an agreement on the rent amount and term of the lease, which totaled $750,000 over 15 years, the sign company presented the building owner with its “standard” form lease. The form lease provided that if the sign company could not obtain a building permit to erect the billboard, or if applicable building codes changed, the sign company could terminate the lease with no penalty or payment. The form lease placed all risk on the building owner if the sign company could not construct the billboard.

The sign company was the expert in the field and familiar with the building permit process. Unknown to the building owner, the sign company was aware of a movement by the Los Angeles City Council to ban all new signs. Since the possible ban did not affect existing signs, the sign company was anxious to get this deal done quickly by having the billboard constructed before any ban occurred. Once the ban went into effect, all existing signs became that much more valuable.

Instead of the lease provision allowing the sign company to terminate the lease if it could not obtain a building permit, the building owner requested a different provision noting that the sign company had done all necessary investigation concerning city regulations and the availability of building permits. Because the sign company was anxious to acquire this site and get started on the construction of the billboard, the sign company agreed to replace its provision with the building owner’s provision.

Immediately after the parties signed the lease, the sign company’s engineer re-measured the distance from the proposed sign location to the nearest competing sign, since city codes provided minimum distances between billboard signs. The sign company’s preliminary measurements had been inaccurate. The sign company learned, after signing the lease, that the proposed sign location in the lease violated city codes. The sign company therefore informed the building owner that the lease was terminated because it was illegal and impossible to construct its sign. Subsequently, a citywide ban on new signs was in fact instituted, giving the sign company a second basis to claim a lease termination.

Believing that the sign company assumed the risk of an inability to construct its sign, the building owner filed suit in order to enforce the lease. The sign company vigorously protested, asserting that no court would require it to pay 15 years of rent for a sign which it could not construct.

The building owner argued that the sign company had knowingly assumed a foreseeable risk, and that the parties had re-allocated this risk to the sign company, and away from the building owner. From the judge’s point of view, the key fact arose when the building owner elected not to simply sign the form lease.

Consequently, the judge agreed with the building owner’s position and ruled in favor of the building owner for the entire 15-year term, and $750,000, despite the fact that no sign could ever be constructed. Additionally, the court awarded the building owner the attorney fees incurred in the enforcement of the lease.

This example highlights the importance of carefully negotiating all contracts, especially those presented as the other party’s “form contract.” Such form contracts extend beyond real estate transactions, and could include executive employment contracts, lending transactions, and confidentiality or non-disclosure agreements.

You can rest assured that the other party in a transaction will take the time and make the effort to carefully construct each provision to shift as much risk away from them as possible. Unless you are willing to assume all of that risk, you should spend the same time and make the same effort to re-allocate the risk back to the other side.

Lee Dresie is a partner specializing in real estate with the Los Angeles-based law firm of Greenberg Glusker. He can be reached at (310) 201-7466 or at LDresie@greenbergglusker.com.

Published in Los Angeles

Smart Business spoke with Bruce Andelson of Greenberg Glusker Fields Claman & Machtinger LLP about how the right advisors, accurate business value and being prepared make the process of selling the business more successful and less painful.

Recently, my friend Larry asked me a deceptively simple question: How can he sell his business, which makes doors and windows. He has never sold a business before and does not know what to do or how to begin.

If that sounds familiar, you are not alone. BizBen.com, a leading business website, estimates that in California alone more than 13,000 small businesses were sold in 2010. In the vast majority of cases these business owners are just like Larry, longtime owners and first-time sellers. Selling a business is like a journey. Arriving at the destination can be great, but the road can be bumpy. However, if you follow some basic rules of the road, the trip can be smooth.

Select your advisors… carefully

Larry needs to first carefully select his advisors and remember to select those right for him since one size does not fit all. He will certainly need a lawyer and an accountant and will have to determine if his regular lawyer and accountant are right for the job. To do so, he should ask probing questions such as: How many business sales have they closed and do they have the required skills for the sale? Are they familiar with his industry?

Larry learned that his accountant was suited for the work, but not his lawyer. He used one lawyer to obtain some patents for him several years earlier, another when his company got into a dispute last year with a terminated employee and a third when he needed financing to purchase some machinery. All seemed to be fine lawyers, but none were qualified to help Larry sell his business.

How can Larry find the right lawyer? I encouraged Larry to ask for recommendations from his accountant, his other lawyers and other business owners. Then, Larry should hold a “beauty contest,” in which the lawyers showcase their legal talents, and choose the one that impresses him the most.

Larry will also need someone, either a business broker or an investment broker, to help him find a buyer. Business brokers and investment bankers do much of the same thing, but a business broker usually handles sales of less than a few million dollars and an investment banker deals with larger sales. Larry should find an investment banker/business broker the same way he found his lawyer — by asking for recommendations from others and asking questions. What other companies have the banker/broker sold? Is he familiar with your industry? How long has he been a banker/broker? What is his plan to sell your business?

Honest evaluation of what your business is worth

Your team is in place, what do you do next?

Although businesses are generally not sold like real estate with an asking price, Larry should, with the assistance of his advisors, calculate a range of values for his business so that he will know what to expect and be able to target the most likely purchasers. Larry initially wanted to sell his business to certain key employees, but after he calculated a likely purchase price he realized that those employees would not be able to meet Larry’s purchase price and expectations.

Get ready to rumble

Larry has selected his advisors and determined a likely purchase price for his business. Is it time for him to go back to making doors and windows? While sometimes it is best not to “sweat the details,” that is not the case when selling a business.

Add a little touch-up paint

When Larry sold his last house he probably did a little painting and made sure the lawn was mowed. The same holds true when selling a business. Some of the things to do are:

  • Clean up any messes
  • Get his books in order
  • Make sure he is operating legally and with all required permits

Make your life easier during crunch time

I advised Larry that, before he retires, he will have some long days at work to prepare for the sale of his business. By doing the following, Larry can get ahead of the process:

  • Prepare a list of the business assets he will be selling
  • Prepare a list of employees and relevant information about them
  • Gather important business documents
  • Make sure that the agreements with his two minority shareholders are up to date

What doesn’t kill you makes you stronger… maybe

The sale process can be arduous, expensive and intrusive and it is important to make sure it is not deadly. I suggested a few things Larry can do to protect his business before the sale closes and he has been paid:

  • Operate on a need-to-know basis, and let only a few key employees know what is going on until the very end of the process
  • Protect his business secrets by obtaining a confidentiality agreement from prospective purchasers before disclosing anything but the basic information
  • Designate a small team of employees to deal with the gathering of information and other tasks during the sale process
  • Keep his advisors up to date on developments in the business — good and bad. No one likes surprises.

When you sell your business, remember the three all-important letters: AVP. Select your advisors carefully, estimate the value of your company and prepare for all contingencies. Done right, AVP will streamline the selling process and garner a greater asking price.

Bruce D. Andelson’s practice focuses on mergers and acquisitions, emerging growth and high-technology businesses, succession planning for closely held companies, and compensation issues for highly paid executives. He works extensively with entrepreneurs and with merchant banking, venture capital and angel investment companies. He can be reached at BAndelson@greenbergglusker.com or (310) 201-7464.

Published in Los Angeles

 

Smart Business spoke to David E. Cranston of Greenberg Glusker Fields Claman & Machtinger LLP about how not to get saddled with the cleanup costs in environmental contamination cases.

A client of ours faced significant costs in cleaning up property contaminated by the operations of its tenants many years earlier. The client’s former counsel who opined the pursuing claims against the tenants, who were mostly out of business, was not worth the time or money. Our investigation indicated otherwise. We learned that a tenant with a small scrap operation in the 1950s had changed names, and its business, through a series of transactions, was acquired by a large publicly traded company. Another tenant who was no longer doing business had significant insurance assets. After prosecuting the claims that our client was about to abandon, we recovered several million dollars to pay for the cleanup.

All too often businesses fail to recognize the value of claims against their own insurers as well as the claims against those who are primarily responsible for the contamination. Make no mistake, recovering the costs of an environmental cleanup is no easy task but, given the potential exposure, every business facing these liabilities should understand the potential value — and costs — in making an informed decision on whether to prosecute the claims.

Here are the highlights of what a business in this position should know:

Recovering costs from your historical insurers

There are two types of insurance that potentially cover the costs of cleaning up your property. The most common is comprehensive general liability (CGL) insurance, now commonly known as commercial general liability. CGL policies are occurrence-based policies. This means that coverage under the policies in place when the contamination first occurred, and each subsequent policy, are potentially triggered. There also more recent specialized pollution liability policies. (This article will focus on CGL policies because, if your business bought pollution liability policies to address specific environmental risks, you are probably already well aware of their potential coverage benefits.)

CGL policies provide coverage for your company’s liability for “property damage,” which courts have construed to mean environmental contamination. But there are limitations.

The insurance industry began including the so-called “total” pollution in 1987, so you are searching primarily for pre-1987 CGL policies. CGL policies issued from 1972 to 1986 contained a limited pollution exclusion leaving coverage only for “sudden” pollution events. However, in our experience, most contamination was caused, at least in part, by events that were “sudden,” as courts have construed the term. Policies issued prior to 1972 typically have no pollution exclusion. Thus, older CGL policies can provide an important source of funding, provided that:

  • Prior to 1987, the contaminated property is one that was owned by your business (or by companies acquired by your business).
  • At least some of the contamination resulted from events occurring prior to 1987 — which is usually the case due to the relatively poor care in handling hazardous materials many years ago.

You may need help in finding older policies from your attorney or insurance archaeology services.

Importantly, coverage under CGL policies is generally not triggered in California, and some other states, unless there is a lawsuit against the insured. Government agencies prefer to use orders and other administrative mechanisms to enforce cleanup requirements. This is one time where a business may welcome the filing of a lawsuit.

There are a number of other potential limitations on coverage and you can expect insurers to try and take advantage of every one of them. In 25 years, I have yet to see an insurer pay for environmental cleanup costs without at least somewhat of a fight. It is important to have counsel on your side that knows how to win that fight quickly and cost-effectively.

Recovering costs from other responsible parties

The same laws that impose cleanup responsibility on owners of property simply because they are the owners also impose liability on others who owned or operated the property at the time the contamination occurred or who otherwise caused the contamination. Common law claims, such as trespass and nuisance, are also frequently available. In the case of tenants and former owners, look for contractual indemnities in the lease or purchase agreements that run in your favor.

A thorough investigation into the property’s history, and the history of its tenants can usually identify who is likely responsible.  Frequently, the businesses that caused pollution many years ago appear to be judgment proof: they may be defunct, dissolved or bankrupt and/or the individuals who ran them are deceased. And this is where even experienced environmental counsel often give up. That would be a mistake.

Most businesses operating after 1950 had CGL insurance and those insurers remain on the hook regardless of the status of their insured. A suit against those former businesses, even if they are dissolved our bankrupt, will trigger the obligations of the insurers. In addition, the environmental liabilities of former businesses may often reside with a person or entity with deeper pockets. Before you abandon your claims, make sure they have been carefully investigated and evaluated.

Choosing to pursue environmental cost recovery claims presents a difficult choice. Businesses are concerned about investing in the pursuit of claims where the outcome is usually far less than certain. Good environmental counsel is essential in evaluating the value of those claims and the likelihood of recovery. And counsel that has sufficient confidence in their evaluation may offer to share in the risk — and reward — by offering an alternative fee arrangement such as contingency fee. This may make your choice easier and help you avoid leaving valuable claims on the table.

David E. Cranston chairs Greenberg Glusker’s Environmental Group and the Climate Change and Sustainability Practice Group. His broad-based experience ranges from the litigation of complex environmental disputes under CERCLA, RCRA, CEQA and the Clean Air Act to representation and counseling on regulatory and policy matters. He can be reached at DCranston@greenbergglusker.com or (310) 785-6897.

Published in Los Angeles

Do you own a vacation home in Mexico? Have a bank account in Hong Kong? Has your spouse retained Canadian citizenship? Are you a long-term U.S. resident who was born in the U.K.? Is your brother-in-law, who is a citizen and resident of Ireland, the successor trustee of your revocable trust?

Each of these scenarios raises complex tax issues that, without proper planning, could easily have disastrous and costly consequences.

Smart Business spoke to Laura A. Zwicker, chair of Greenberg Glusker’s Family/Strategic Wealth Planning Group, about how to stay out of the IRS’s crosshairs by being aware.

Homes in Mexico

Most of us would contact a tax professional before establishing a trust in the Cayman Islands.  But, we wouldn’t necessarily see the need when buying a vacation home in, say, Cancun, especially since vacationing in Mexico has become as commonplace as visiting Hawaii or Florida.

Because coastal and border land in Mexico can only be directly owned by Mexican citizens and certain Mexican entities, a condo in Cancun is likely to be acquired through a fideicomiso, similar to a trust. The IRS takes the position that a fideicomiso is a trust subject to all foreign trust reporting requirements.

Thus, a Cancun condo purchaser must file both Form 3520 and 3520-A with the IRS annually or be subject to significant civil penalties. To make matters worse, after March 18, 2010, if our Cancun condo purchaser actually uses the condo, or lets a relative use the condo, the fair rental value for the period of use is subject to U.S. income tax.

The 2011 Offshore Voluntary Disclosure Initiative offers the opportunity to come into compliance, possibly without penalties, if delinquent returns are filed by August 31, 2011.

Overseas bank accounts

Whether hiding hundreds of millions in a Swiss account or simply maintaining a U.K. account to pay bills while in your London office, the Financial Crimes Enforcement Network of the Treasury Department is looking for you.

For almost 40 years, there have been reporting requirements for U.S. citizens and residents holding interests in foreign financial accounts. However, those requirements were largely unenforced until three years ago.

If you have an interest in or signatory power over any financial account in any foreign country, disclosure is required on your personal income tax return. Additionally, if the account had a balance of $10,000 USD or more in any given year, a Report of Foreign Bank and Financial Accounts (FBAR) is required. Failure to file a FBAR can result in significant civil and criminal penalties.

Worse than having failed to file FBARs is having both failed to file FBARs and failed to report the income generated by a foreign account on U.S. income tax returns, which results in additional underpayment, failure to file and fraud penalties.

Again, the 2011 Offshore Voluntary Disclosure Initiative offers the opportunity to come into compliance, possibly without penalties, if delinquent returns are filed by August 31, 2011.

My spouse is not a U.S. citizen

Spouses are generally able to transfer assets to each other, both during lifetime and at death, without tax consequences. If your spouse is not a U.S. citizen, things get a little more complicated without proper planning.

Lifetime gifts to a non-U.S. citizen spouse are limited to $130,00 per year before using your credit against gift tax. Gifts at death to a non-citizen spouse begin using estate tax credit immediately, unless the assets pass to a Qualified Domestic Trust (QDoT). Proper planning with life insurance and QDoTs can prove helpful in lowering your tax bill and preserving your credit against gift and estate tax to pass assets to your children.

Special issues for U.K. persons

You have lived in the U.S. for 15 years and have homes, bank accounts and other ties to the U.S., but are not a U.S. citizen. No complications, right? Maybe!

For individuals born in the U.K. who have retained their U.K. “domicile of origin,” engaging in ordinary estate planning in the U.S. could have unexpected and costly U.K. inheritance tax (IHT) consequences. If a U.S. resident with a U.K. domicile of origin transfers assets to a U.S. revocable trust, which most U.S. lawyers would advise, and the value of the assets exceeds the U.K. nil rate band, an immediate U.K. tax of 20 percent on that excess value is imposed. Additionally, a U.K. tax of 6 percent of the value of the trust assets is charged every 10 years during a lifetime.

Moreover, if the U.S. resident is still deemed to be a U.K. domiciliary at death, the value of the trust would be taxed again by the U.K. at a rate of 40 percent. Thus, without appropriate planning, this taxpayer could pay a cumulative tax approaching 75 percent on assets that should have been taxed once at a rate of 40 percent.

Naming a foreigner as successor trustee

You are a U.S. citizen, your spouse is a U.S. citizen and neither of you owns a vacation home or holds financial accounts outside of the U.S. You have nothing to worry about, right? Perhaps, but if the brother-in-law, best friend, or business manager named as successor trustee of your revocable trust is a citizen and resident of a foreign country, once that successor trustee begins to serve, your trust suddenly transforms itself into a foreign trust for tax purposes.

While it is unlikely that the trust will be subject to an expatriation tax, the trust will be subject to all of the reporting requirements described above with respect to Mexican fideicomisos, as well as additional income tax reporting on any income generated.

In our global society, information and assets move ever more quickly and easily across borders; however, the road to properly complying with reporting requirements and carefully engaging in gift and estate tax planning is becoming more complex. Although the immediate cost of expert legal and accounting advice may be off-putting, the ultimate cost of proceeding without it could be devastating.

Laura A. Zwicker chairs Greenberg Glusker Fields Claman & Machtinger LLP’s Family/Strategic Wealth Planning Group. She regularly counsels high net worth individuals and their families in connection with domestic and international estate and tax planning issues. She can be reached at (310) 785-6819 or LZwicker@greenbergglusker.com.

Published in Los Angeles

Fifteen years ago, just as e-mails were becoming common in the workplace, a client, who we’ll call Jim, called us in a panic. One of his employees, Jenny, was threatening to sue him for sexual harassment. We asked Jim for the real story, and we got the usual response. He may have been flirtatious, but so was she, and it didn’t go beyond that.

We told Jim that we needed all of Jenny’s e-mails immediately. Fortunately, the e-mails showed that there really was nothing more than flirtatious banter between Jim and Jenny. What we did not expect to find were e-mails from Jenny’s company computer, sent a week before her allegations, of her intent to organize her own competitive company and to solicit Jim’s customers to join her.

Instead of being on the defensive, we immediately filed a lawsuit against Jenny for unfair competition and related claims. The case quickly settled in Jim’s favor.

We wish that all e-mails were as helpful to our clients.

Often, however, e-mails written in frustration or anger can be harmful to a client’s position. On the other hand, employees such as our client’s “harassment” victim need to be careful about communications made with company property.

We now advise our clients based on the lesson an employee named Gina Holmes recently learned. Use of a work computer to engage in private conversations has been significantly curtailed in California in a way that we expect will surprise both management and employees.

In June 2004, Holmes began working as an executive assistant for Paul Petrovich at Petrovich Development Company. At that time, Holmes signed an employee handbook acknowledging the company’s policy regarding computers and e-mail accounts. Specifically, the handbook stated that (1) the company’s technological resources should only be used for business, (2) employees who maintain personal information on company computers have no right of privacy, and (3) the company maintains the right to inspect all files and messages at any time.

Shortly after she was hired, Holmes told Petrovich that she was pregnant. Petrovich and Holmes then engaged in a heated exchange of e-mails concerning Holmes’ maternity leave and its impact on the company. The exchange led Holmes to believe that she was a victim of pregnancy discrimination. Using the company’s computer, Holmes exchanged several e-mails with her attorney, Joanna Mendoza, about her concerns. Presumably realizing after the fact that Holmes was communicating on the company’s e-mail, Mendoza instructed Holmes to delete their communications from her work computer.

Holmes ultimately resigned and sued Petrovich Development. At trial, Petrovich Development sought to use Holmes’ e-mails to Mendoza (which had been electronically recovered), arguing that they showed that Holmes was not upset about Petrovich’s conduct, and that she had been “put up” to the lawsuit by Mendoza. Despite Holmes’ objections that the e-mails were privileged attorney-client communications, the trial court admitted them into evidence. The jury ultimately returned a verdict exonerating Petrovich Development.

On appeal, Holmes argued that her e-mails with Mendoza were protected by the attorney-client privilege. On January 13, 2011, a California appellate court disagreed.

The Court of Appeal was swayed by the evidence that Holmes had used the company computer to send the e-mails to her attorney even though she had been advised that (1) the company might inspect computer files and e-mails at any time; (2) employees using company computers for personal matters have no right to privacy with respect to such use, and (3) the company’s computers were to be used only for company business. The court noted that on those facts, Holmes’ use of the company computer to consult Mendoza was “akin to consulting her attorney in one of the defendants’ conference rooms, in a loud voice, with the door open, yet unreasonably expecting that the conversation overheard by Petrovich would be privileged.”

The court was not persuaded by the fact that Holmes’ work computer was password protected, finding her belief that the e-mails would remain private to be “unreasonable” because she was warned that the company would monitor e-mail use. Because the law protects as privileged only a “confidential communication between client and lawyer,” the court held that Holmes’ e-mails to Mendoza were not privileged because Holmes had no reasonable expectation they would remain confidential.

What does this mean to employers? We advise our clients to carefully review their computer and e-mail usage policies to ensure that they give clear notice to employees that workplace computers, e-mail and voice-mail accounts are not private, are to be used primarily for business purposes, and may be subject to monitoring by the company.

By putting in place a policy similar to the one in Holmes, an employer can greatly increase the likelihood of getting access to otherwise attorney-client communications in the event of litigation with an employee — a significant strategic advantage.

But we would also advise our clients that they need to modify what is now fairly common behavior of communicating with counsel using work e-mail, based on a more general issue raised in Holmes about when attorney-client communications are privileged. In Holmes, the employee was communicating with her attorney about a claim against her employer. But what if Holmes had been e-mailing her lawyer about a claim she had against her bank? Under the court’s reasoning, Holmes would have no expectation of privacy in those e-mails either. Arguably, in litigation between Holmes and her bank, the bank could subpoena the employer’s records to obtain Holmes’ e-mails with her lawyer about her dispute with her bank. While that specific issue was not decided in Holmes, it appears to be a very real risk that almost all clients need to know about.

In light of Holmes, a prudent lawyer would advise their clients to cease all communications with them using a work e-mail account or work computer, or risk waiving the attorney-client privilege that would otherwise exist.

Nancy Bertrando and Matt Falley are partners with Greenberg Glusker Fields Claman & Machtinger LLP. Nancy specializes in employment issues, and she can be reached at (310) 201-7483 or NBertrando@greenbergglusker.com. Matt is a litigator, and he can be reached at (310) 201-7442 or MFalley@greenbergglusker.com.

Published in Los Angeles

You are an emerging privately held company originally funded by venture capital. You have compensated your valued employees with stock options. For various reasons, certain employees decide to leave your company to work for competitors or are let go. Now, these former employees holding stock options in your company decide to make a claim against you and the rest of management alleging the value of their stock interests have been diluted by your subsequent capital funding.

Whether they have a valid claim or not, are you covered for the millions of dollars it may cost you to defend the litigation? The answer depends on whether you hold the right type of directors’ and officers’ (D&O) coverage.

Smart Business spoke to Jonathan Sokol, a partner with Greenberg Glusker Fields Claman & Machtinger LLP, about how business can ensure they have the D&O coverage that’s right for them.

Shareholder suits typically represent the majority of claims brought against directors and officers of a corporation. D&O insurance, unlike other lines of insurance, is not sold on a common policy form used by the insurance industry as a whole. Each insurance company has developed its own set of forms. Because D&O insurance involves a highly specialized line of insurance, the standard of care applicable to brokers representing clients in the procurement of such policies dictates that they be informed of the different insurers and their policy terms to place coverage at the best available terms for clients.

Unfortunately, however, not all brokers, upon whom most companies rely exclusively in the procurement of their D&O insurance, possess the expertise necessary to advise their clients properly regarding various options available in the marketplace.

Companies, particularly emerging privately held companies that hope to eventually go public and provide compensation to their valued employees and executives in the form of stock options, have a particular need for D&O insurance. This affords coverage for claims brought by employees or former employees owning stock or stock options in the company.

Not all policy forms used by the various D&O insurers provide coverage for securities claims brought by employees in their capacities as shareholders. Some policies contain a form of “insured v. insured” exclusion that bars coverage for securities claims brought by employees or former employees, unless the insured company purchases a special “carve-back” endorsement to the exclusion to provide coverage for such claims.

The insured v. insured exclusion

All D&O policies have an “insured v. insured” exclusion to prevent one insured from collusively suing another to trigger coverage (e.g., management suing itself to trigger coverage). A common form of this exclusion provides as follows:

The insurer will not be liable to make any payment of Loss in connection with a Claim brought by or on behalf of, or in the name or right of, the Insured Organization, whether directly or derivatively, or any Insured Person, unless such Claim is brought and maintained independently of, and without the solicitation, assistance or active participation of, the Insured Organization or an Insured Person.

The problem arises through the definition of an “Insured Person” that typically includes employees — a seemingly harmless act of expanding coverage under the policy for claims brought against employees. However, by expanding the definition of Insured Persons to include employees, the “insured v. insured” exclusion now becomes applicable to claims brought by those same employees against the corporation, creating a potentially huge gap in coverage for securities claims brought by employees or, worse, by disgruntled former employees holding stock options.

The “carve back” to the “insured v. insured” exclusion provides coverage for claims brought by employees or former employees in their capacity as shareholders without the active participation of the company’s management. Some insurers offer this coverage as part of their basic coverage form without the payment of an additional premium. Others require the purchase of a special “carve back” endorsement to obtain this coverage.

If a company’s broker places coverage with one of these latter insurers without obtaining the “carve back” endorsement, the company could be facing substantial uninsured exposure for securities litigation brought by employees, or more typically disgruntled former employees or directors of the company. Without adequate D&O coverage, the company could have to spend millions of dollars defending such litigation — even if the case has little merit.

Such a crippling scenario begs the question, “So what should a company do to protect itself against major gaps in D&O coverage?”

  • Use a retail broker who has expertise in procuring D&O coverage. The broker should be up to date as to the various policy forms available in the marketplace so that he or she can place coverage at the best available terms.

  • Make sure your retail broker works with wholesale brokers who have access to the marketplace and are also experts in the various coverages available therein.

  • Provide your brokers with as much information as you can about the nature of your business.  Include the nature of your employee and executive compensation so that they are well aware of your particular insurance needs.

  • Involve an experienced insurance coverage attorney in the process of reviewing your existing coverage to identify gaps. Your attorney can also work with your broker when it comes time to renew coverage to negotiate necessary changes to policy language to protect you and the company.

Understanding your coverage and working with the right brokers and attorneys can provide you with the security that you have got your bases covered.

Jonathan Sokol is a partner with Greenberg Glusker Fields Claman & Machtinger LLP. He has more than 20 years of experience representing policyholders in complex insurance coverage litigation. He can be reached at (310) 201-7423 or JSokol@greenbergglusker.com

Published in Los Angeles
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