Every day, your employees print out documents as part of their jobs. But how many of those are printed in color when they really only need black and white? How many are left on the printer until they are thrown away? And how many don’t really need to be printed at all?
By completing a security and cost recovery analysis of use of your printing devices, you may find ways to save significant amounts of money and increase your company’s security, says John Szabo, applications specialist at Blue Technologies.
“Most companies don’t have any idea how much they are truly spending on printing, copying, scanning and faxing,” says Szabo. “However, with cost recovery systems, you can get the information to determine if you have a problem and/or if there are areas that should be investigated further. It’s worth investing a couple hours to have someone tell you you’re doing things correctly, and if you’re not, to explore what opportunities are available and the costs associated with them.”
Smart Business spoke with Szabo about how analyzing the use of your print devices can help you recover costs and improve security.
Where can a company start with cost recovery?
First, determine your goals in implementing a cost recovery system. Is it to determine if you have issues with the environment? To look at where money is being spent irresponsibly from a user standpoint? To make sure you are you tracking everything done for a specific client to ensure that billing is 100 percent accurate?
Then, you can begin to figure out what cost recovery solution may be the best fit.
What are some cost recovery solution options?
One solution uses swipe cards that employees use to enter the building that integrate directly with the machines. That allows you to track exactly who is doing what. In this scenario, you are looking at solutions that sit on the network and that require zero interaction from individual users. The system simply monitors individual printing and scanning. There are also client billing applications in which users type in individual codes to track to whom the work is being billed.
The majority of companies have no idea who is doing what. With cost recovery solutions, you can look at use by users, how much they are doing, what application they’re doing it from, and whether it’s in black and white or color. This allows you to figure out who is doing what and why are they doing it. Is it actually appropriate for their environment, should they be printing what they are printing, or do you have an issue?
How can you address misuse or abuse of devices?
Systemic changes can be put into place. It can be as simple as changing how drivers are deployed for users, and educating users about what jobs are appropriate to send to local printers versus network printers.
You may have small pockets of real abuse from a personal standpoint, but it may be mainly a matter of education. When printing a document, does it really need to be in color? Or do you really need to print it at all? And if you do, are you remembering to pick it up after you print? To minimize that waste, you can print to the cloud, then at the printer, pull it down from the cloud and print.
How often do you pick up a print job, get back to your desk and find you have other people’s jobs in your stack? You may try to find the person, but there may be no identifying information. And even if you take it back to the printer, the other person has already printed it out again. Often, those documents will sit on the printer for days, and may contain sensitive information.
Once you’ve gathered this data, how do you act on it?
Partner with a company with the resources to manage and maintain it. From an ownership standpoint, all you have to do is have brief meetings to go through findings to give feedback and direction. The goal is not for the managing company to make decisions; it’s to inform you, as the business owner, of the potential or actual areas of concern. Then from that information, you have the ability to make decisions or give the managing company guidance to make decisions and implement changes.
How can a cost recovery solution go beyond saving money?
For example, you may have people scanning sensitive materials to someone who shouldn’t have that information. There are solutions that will capture information if someone is sending something to someone who shouldn’t have it.
It could be a price book or an invoice. Or perhaps you’re a medical office and are worried about compliance issues. There are a lot of pieces that fold together from a liability standpoint, so it’s not only the hard costs of what is being printed. There are also soft costs, such as potential jobs lost and potential revenue lost. It’s very difficult to put dollars and cents to that.
Isn’t it worth a couple of hours from a time investment to have someone tell you whether you’re doing things correctly? It makes no sense not to do it.
Whether it’s recovering costs to be able to properly bill clients, compliance issues or concern about making sure people are printing what they’re supposed to and not printing what they’re not supposed to, a cost recovery solution can be customized for your specific needs.
John Szabo is an applications specialist at Blue Technologies. Reach him at (216) 271-4800 or jszabo@BTOhio.com.
Insights Technology is brought to you by Blue Technologies
If your company is sued for a breach of fiduciary duties, mismanagement of operations or wrongful interference with a contract, do you have the proper coverage to protect you?
What if you are sued for failure to deliver on a contract, for disclosure of materially false or misleading information, an unfair trade practice, self-dealing and conflicts of interest or a consumer protection violation, and a violation of state and federal laws? Are you protected from a lawsuit? If you are not carrying Directors & Officers, you are leaving those individuals and your company at risk, says Todd Winter, executive vice president at SeibertKeck.
“Directors & Officers coverage is designed to protect individual directors and officers as long as they act in good faith, use reasonable care and act within the scope of their duties,” Winter says. “It’s like an errors and omissions coverage made for the directors and officers of the company. It protects the financial assets of the company as well.”
Smart Business spoke with Winter about how Directors & Officers liability insurance can protect you and your company in the event of a lawsuit.
What kinds of companies should consider Directors & Officers liability insurance?
Any company has this exposure and the risk is universal. But many private companies do not believe they need D&O. Most think publicly traded companies have the greatest risk, as they must adhere to complicated and ever-changing securities laws, and have a large number of shareholders. Claims can arise from investors, shareholders, customers or clients, government regulators, creditors and lenders and even from competitors.
Privately held companies and their directors and officers are not immune to lawsuits. The most likely plaintiff is a customer, followed by a government agency, vendor and partner or shareholder. Directors and officers of privately held corporations owe the same duties to shareholders as their counterparts at publicly held corporations. Private companies often are incubators for cutting edge business models and products, or for creative investment strategies. A lawsuit can result in significant financial loss to the company in the form of defense expenses, judgments and penalties, not to mention the personal financial loss to the directors and officers.
Even non-profit boards are at risk of being sued. Coverage is of particular importance to these organizations because they rely on volunteers’ boards that make important decisions for the organization. Lawsuits can have a devastating impact on the operating budget and can even put the organization out of business.
A couple of simple questions may help to guide you by pointing out areas where your company may face possible exposure to loss:
- Do your company’s officers have occasional disagreements with customers, creditors, competitors or regulators?
- Has your company been involved in the purchase or sale of any debt or equity securities within the past three years?
- Might at least one former, current, or future shareholder of your company be dissatisfied with the company’s performance or management decisions?
- Is your company contemplating an IPO within the next three years?
- Do directors and officers of your company have close personal relationships with or strong allegiance to the controlling shareholder(s)?
- Are your company’s directors and senior officers unfamiliar with your company’s legal obligations or their own personal legal duties and responsibilities as managers?
Why don’t more businesses have this coverage?
Business owners decide not to purchase for many reasons, but mostly because they do not feel they are at risk. They understand the possibility of a fire, or a tornado, an auto accident, or a slip and fall on their premises and are willing to buy a policy to cover those risks. A lot of times, owners don’t understand the real need, and elect not to purchase. Another reason is due to the cost, which you may find inexpensive, depending on the size of your organization.
What are some scenarios in which companies can benefit from Directors & Officers liability coverage?
If your company is growing and expanding into other areas, it may not realize the regulations that come with the move. Or if there is an activity of mergers and acquisitions taking place and someone is giving out protected information.
Here are a few examples: a VP of a manufacturing plant determined that a new product line presented tremendous sales potential. Instead of presenting the company with the opportunity, he shared it with his brother, who formed a new company to manufacture it. Shareholders sued, alleging that he wrongfully took advantage of an opportunity that belonged to the company.
In another situation, a company recruited a top sales executive employed by a competing company. The competitor sued the company, alleging the company had interfered with its contractual relationship with its employee. Defense expenses and compensation awarded nearly $900,000.
What else does Directors & Officers insurance cover?
Directors & Officers liability coverage pays for legal defense and if purchased on a duty to defend basis, the insurer will supply expert counsel. Also, the majority of these policies cover past, present and future actions of elected and appointed directors and officers. Having D&O coverage can help an organization attract and retain qualified directors and officers. Decisions are made every day, and you will want to protect those decisions as one could possibly end up in a lawsuit. If you don’t have Directors & Officers liability insurance coverage, your risk could be tremendous.
Todd Winter is executive vice president at SeibertKeck. Reach him at (330) 865-6572 or firstname.lastname@example.org.
Insights Business Insurance is brought to you by SeibertKeck
If you think your business may need to use a staffing firm at some point in the future, you should start doing something about it now.
Waiting until you actually need those services could prove to be a huge mistake, says George Thomas, senior vice president at EverStaff.
“Obviously, it’s always best to think about it before you need it,” says Thomas. “Often, by the time you have a need, it’s already too late. Planning ahead by establishing a relationship with a staffing agency can ensure that you have a partner that will be properly prepared to fulfill your staffing and placement needs when they arise.”
Smart Business spoke with Thomas about how to develop a relationship with a staffing firm so it can stay ahead of your needs.
Where should a business owner start when considering a partnership with a staffing firm?
Before you begin, recognize that there could very well be a disconnect between your operations, human resources and finance departments. In many cases, the finance department is going to look at staffing (as they should) based on a cost savings proposition focusing on liability, overall exposure of work force and the staffing company markup. The HR and operations departments will also be looking at cost and exposure, but will be more focused on the quality/reliability of candidates and the impact on production. As the CEO, you want to align all three departments and ensure that you are taking into account the full impact of what the service offers, focusing on the total value proposition. This means getting HR, finance and operations all in one room together to figure out what your company expects to gain from the use of a contingent labor work force. Second, it is key to determine a healthy percentage of contingent work force to permanent work force. Once you have determined this, you are now prepared to consult with a contingent staffing service to best determine how you will move forward.
How do you determine the right firm for your needs?
If your company has any chance of using a staffing firm, your HR employees probably hear from staffing services several times a week so there is no need to look in a phone book. Start by asking them what they know about the local services, as they should know who is out there and have an opinion.
An important consideration when choosing a firm is determining whether the company is merely happy to be a subordinate vendor and order taker to you, or if it wants to be a trusted partner. It’s not a question you can ask directly, but you can ask about relationships and the expectation of those relationships during fact-finding meetings. Also, listen to the questions the recruiter asks. If the staffing firm wants to be a trusted partner with you, the recruiter is going to try to learn about your business and get into your operating reality. He or she will use effective questioning to get to the root of your needs and learn everything he or she can about your facility and specific operating style. Then the recruiter will use that information to form a proposal about how the staffing firm can improve your operations with contingent staff.
It’s a matching process, not just order filling, and a staffing firm can’t make a proper match unless it can get into your operating reality and understand your company’s culture. It is very easy to find candidates with the proper hard skills, but much more challenging to find someone who is going to fit in with your company culture and be a long-term match. The difference between a good and great staffing company is that the great ones can make the match.
If a prospect staffing company simply walks in with a pricing sheet without first doing a proper analysis and says, ‘Whoever you’re doing business with, I can do it cheaper,’ that’s a good indication that that company has no interest in being a partner and is happy to be a vendor. That relationship never lasts long.
How can developing a partnership benefit a business?
Too many CEOs look at the staffing industry as a necessary evil, because they can’t carry all of the liability that comes with hiring and their HR departments are normally too small to recruit all positions internally. Because of that, they see staffing firms as disposable, something they can replace tomorrow if need be. As a result, they often throw out a job to several firms, and the first one to find a worker wins.
You can do that, but it’s not doing you any good because you’re not developing a key partner relationship. You need to think of your staffing firm as the third arm of your HR department, as an external recruiting department. Have them at your meetings so they understand your business from an operational standpoint. Keep them engaged to keep them out in front of your needs.
How can partnering with a staffing firm help with retention?
Statistics show approximately 60 to 70 percent of turnover occurs in the first two to three weeks at a new manufacturing job. People are experiencing many different things and moving in ways they’re not used to, so they may be sore, or not used to specific odors, environment, etc. If there is someone coaching them through those weeks and letting them know that it’s going to get better, there is a higher likelihood that they will stay and your retention will improve.
Proper orientation is a key to retention in contingent staffing and you need to ensure that you work with your staffing partner on orientation. Improper orientation always leads to misunderstandings. In the staffing industry, much of our turnover is based on misunderstanding. For example, if someone shows up on day one and doesn’t know where to go, doesn’t have a proper orientation, or took a break in the wrong space and is disciplined, then they are likely to not return the next day. By partnering with a trusted staffing firm, you get more than just warm bodies on the job. You get the correct candidate and the right match, which is critical to your company’s operating success.
George Thomas is senior vice president at EverStaff. Reach him at (216) 369-2599 or email@example.com.
Insights Recruiting & Staffing is brought to you by EverStaff
Arbitrage is a trading technique that has been around for decades, but it’s not one that most investors have heard of.
However, in today’s economy, it can be a smart investment, says Brian Hopkins, portfolio manager at Ancora Advisors, LLC.
“Warren Buffett employed this strategy for decades with his short-term bond money, until Berkshire got so big that he couldn’t do it anymore,” says Hopkins. “It has been a smart money strategy for decades.”
Smart Business spoke with Hopkins about arbitrage and how it can benefit an investor’s portfolio.
What is arbitrage?
Arbitrage can take two forms. One is purchasing a security with a known value in the future trading at a discount to that value after adjusting for the risk free rate. Another is when two securities with virtually identical characteristics trade at different prices. An arbitrageur can purchase the cheaper security and sell short the more expensive security and wait for the two securities to reflect their intrinsic value.
One example of this is merger arbitrage, a strategy employed when a company is being purchased by another company. Typically, there is a six-month window between when a merger is announced and when the deal finally closes. Often, during that six-month period, the stock of the company that is the target of the takeover will trade at a discount to final value because the large mutual funds are not concerned about making that incremental couple percent and decide to sell. As a result of this selling, the market price of the target company may be less than the final transaction price. At this point, an arbitrageur can step in and buy the shares of the company being acquired. The bet is that the deal will close and the spread between the market price and the takeover price will close to zero.
Another arbitrage example is when you take advantage of the mispricing of different securities that relate closely to one another. For instance, a number of companies have two classes of common stock. One will be voting stock and one is nonvoting stock and they both trade on an exchange. They have the same economic rights in terms of dividends, cash flows, proceeds in a sale etc. so they are identical except for the voting rights. Typically the share class with the higher voting rights trades at a steady, predictable premium to the nonvoting class.
For a variety of reasons, there can be times where temporarily the steady, predictable spread widens or maybe even inverts. In that scenario, the arbitrageur buys the less expensive stock and shorts the more expensive stock. An arbitrageur would then wait for the two classes of shares to come back to the normal premium/spread relationship. This strategy has limited risk because you are only betting that the historical relationship between the two share classes will restore itself.
Is this strategy one that investors can pursue on their own?
I would advise against it. An arbitrageur will run several screens to identify opportunities, using technology that feeds in pricing data for different types of securities and the relationships between them. There is quite a bit of manpower that goes into identifying and researching those opportunities and managing overall portfolio risk.
Why is now a good time to consider this strategy?
Historically, the risk of arbitrage strategies as measured by standard deviation has been in line with the risk of the bond markets. Our feeling is that the bond market right now does not offer investors much in the way of return on capital. Fixed income investors are losing purchasing power because the yields on many bonds today are less than the rate of inflation. This is where an arbitrage strategy can come in as a complement to fixed income only portfolios.
Arbitrage has historically outperformed bonds and inflation, and we think will do so again in the future. In the current environment, we believe it represents a good way for conservative investors to diversify their sources of return away from fixed income only.
In terms of the environment for public company merger activity, there is a significant amount of cash sitting on the balance sheets of corporations, and we think that cash may be deployed in part in mergers and acquisitions. This creates a good environment for arbitrageurs because the more mergers the higher the spreads and therefore the rate of return. More deal supply in the market widens spreads and adds upside to the strategy.
What is the risk profile of this strategy?
There is some risk, but the risks of the stock market are much higher. The strategy has only been down twice in the past 22 years. Both occurrences happened in the worst years of the recent bear markets. In 2002, this strategy as measured by the HFRI Merger Arbitrage Index was down 1 percent in a horrible year for the stock market. In 2008, one of the worst years for the market since the Great Depression, the strategy was down 3 percent, giving you a reasonable idea of what can happen in the most difficult of potential environments. Following each of those down years, the strategy bounced back and returned in the double digits the following year, leaving merger arbitrage investors up over the two-year period. The strategy has had numerous years of double-digits returns since the early ’90s, typically in years when merger activity was high.
What role should this strategy play in an investor’s portfolio?
It should be a portion of the portfolio, and investors should view it as an allocation to their fixed income portfolio.
An attractive element is that the correlation between this strategy and fixed income is very low. As a result, as you add a merger arbitrage strategy, the volatility of your fixed income portfolio should decrease.
Brian Hopkins is a portfolio manager at Ancora Advisors, LLC (an SEC Registered Investment Advisor). Reach him at (216) 825-4000 or firstname.lastname@example.org.
Insights Wealth Management & Investing is brought to you by Ancora
When planning for your business, you determine your purpose, your values and your goals. Your business plans consider your strengths, weaknesses, opportunities and threats. You plan ahead to avoid shortfalls in funding, materials or capacity, and you create strategies for growth.
Is it possible that your personal life would benefit from planning the same way?
“The business world has established good models for planning and strategizing how the business is going to attack the future, but few individuals spend as much time thinking about their own future,” says Norman M. Boone, founder and president of Mosaic Financial Partners Inc. “As a result, they end up being victims of circumstances as opposed to managing their lives and influencing outcomes.”
Smart Business spoke with Boone about managing your personal life with the same attention to detail you give your business.
How can business owners apply their management skills to their personal lives?
There are three fundamental steps. First, figure out your purpose, your values, beliefs and principles, things you hope for in the future and the approach you’ll take. Once you get that clear, it makes everything easier.
In your business, your mission statement creates clarity and gives everyone a purpose. The same is true in a family, where a mission statement gives you a frame of reference for making decisions and allows you to talk about who you are as a family or as an individual. Having clarity about your purpose gives meaning to your days and your interactions.
What goals do you want to accomplish in the next year, and the next five, 10, 20 years? You think about that in business, because you’re not going to be successful if you only deal with the day to day. That’s equally true in life.
Once you have your purpose, what is the next step?
The second step is to consider your resources. What do you have? What will you need? What are your assets and liabilities? How much are you worth? What do you need to do to change that over time? The real issue, with both companies and people, is whether you are improving your lot over time.
For most individuals and families, the key question is: How much do you need to be financially independent? For some people, it is a relatively small amount; for others, it is a big number. But you need to know what your number is so you can plan accordingly, so your net worth can reach that number.
How can someone determine that number?
For most people, the two most critical future requirements are paying for the kids’ education and for the needs they’ll have in retirement. Some have additional desires, like second homes, caring for a parent, buying a business or leaving something for heirs or a charity. A financial planner can help you assess how much each of these might require and how much you need to save along the way.
Life doesn’t usually go as planned, for businesses or individuals. Consider various scenarios and how your goals and/or your needs will change with each. What if you have a third child? What if you pay for all of college instead of 50 percent? What if you retire five years earlier or later than you planned? As you explore the different scenarios and figure out what you need to succeed in each, you’ll begin to see what variables have the greatest influence on getting the numbers to work for the lifestyle you envision. This typically will empower you to better understand where you have opportunity to influence the outcome.
What is the third step?
Planning is the third step. Businesses do frequent business plans and update them regularly. So should individuals. As your circumstances change, your plan needs to change. If your lifestyle goals change, then your number will change. Focus on your goals and then regularly reassess what you need to do to accomplish them. For example, you should have a plan for your career and be purposeful about taking the necessary steps to move toward your goal.
Effectively running a business requires having a vision and making plans to get there. If you are the CEO of a company, people look to you to answer, ‘What are we about? What is most important for us to do or think about?’ In the same way, you are the CEO of your life. Successful people have goals and they are clear about their priorities. Whether it is accumulating money, preparing your kids for what is ahead, reflecting your faith in how you live your life, or creating the next world-changing widget, your actions need to reflect your choices for you to accomplish what is important to you.
As with a business, there are certain elements you need to take care of. You need an income. You need to keep your expenses below your income so you’ll have a ‘profit’ and can invest in your future. Debt can be useful as long as it’s manageable. You need to consider what could go wrong and arrange for that through insurance, financial reserves or that earthquake kit. You need to do what you can to keep taxes low. You need to prepare for the unthinkable with a caring estate plan (in business, a ‘succession plan’). Ideally, you’ll leave behind a legacy of stories about who you are and what is important to you so the culture of the family can continue, if need be, without you.
Once you’ve determined your plan, how do you communicate it?
When running a business, you do marketing to tell the world about your products and get them to buy. But it also helps employees. It reminds them of the business’s values, their purpose and how they benefit customers, and gives them a reason to be dedicated.
In a family, communicating those things and telling the story is as important as it is in business. Reminding family members why family is important and how you value it gives them a common ground to rally around. The opportunity for communication that owners exercise in their businesses is too often left behind in the family experience, where it could be equally valuable, if not more so.
Norman M. Boone is founder and president of Mosaic Financial Partners Inc. Reach him at (415) 788-1951 or email@example.com.
Insights Wealth Management & Family Business Consulting is brought to you by Mosaic Financial Partners
When a business is new, its owners may not know where to turn for help raising capital. Is funding from a bank a better option, or is private equity a better fit? And how do you decide?
Your banking partner can help you evaluate your needs and options, then steer you in the right direction, even if the bank isn’t the best solution, says Michael Field, executive vice president, technology banking division, Bridge Bank.
“Your banker can look at all the factors and determine whether it can put together funding to meet your needs,” says Field. “But even if the bank isn’t comfortable, your banker may be able to provide a solution to enhance the debt side of things or the equity.”
Smart Business spoke with Field about what to consider when looking for funding and common mistakes to avoid when doing so.
What should start-ups consider when looking for access to growth capital?
The first thing is debt versus equity. If you have no product, just an idea and a business plan, debt is probably not the right solution. That’s more of an equity play with investors who support and finance research and development.
The bank then steps in to finance growth, after you’ve developed a product, or raised sufficient capital so there is an ability to execute the plan. But it can help you at any stage. For example, if are looking for equity, the bank can help introduce you to the right players.
What are the factors to consider when determining whether bank funding or private equity is a better fit?
First, look at cost. Equity is much costlier than debt, and you have to give up a percentage of your company. With debt, you may not have to give up any of your company.
Also consider flexibility. Debt has more restrictions, whereas with equity, the money can be used with more freedom.
What do banks look for when judging a young company’s ability to repay a loan?
Banks look for sources of repayment. They look at cash burn — how long will the cash you have currently and the bank’s cash last you? They look at cash flow and measure balance sheet strength and how liquid you are, what kind of investor support you have and whether future rounds of funding are expected, and whether you have a lead investor who is supporting the company or if you are bootstrapping with friends and family.
What common mistakes do start-up firms make when seeking capital?
Companies don’t realize they can leverage their balance sheet using debt versus raising equity. Why would someone use debt versus equity? Often, it’s to get to the next stage and increase the value of the company before going for equity. In addition, they’re not giving up as much of the company. Leveraging debt to get to the next stage really allows you to get a better deal from investors.
Also, sometimes people get greedy. They may have a really good investment on the table from an investor, but they don’t take it and then the opportunity goes away. They get greedy because they think they can obtain a better deal by continuing to shop. Sometimes there is a good deal on the table, and you should just take it, whether it’s from the bank or from equity.
Business owners also make the mistake of viewing funding as a transaction rather than a partnership. Is the person you’re working with on the same page as your management team and investors? Are your goals aligned? Is everyone working in the same direction? If the relationship is purely transactional, that can get a company into trouble.
In addition, companies sometimes fail to balance sources of capital. All equity or all debt may not be the best solution. Sometimes spacing it out by taking some equity and some debt can help you on price, as well as diversify your sources of capital.
How can a banker help you identify the best solutions for your needs and provide opportunities for growth?
The banker will ask about your business, your investors and your plans for capital. He or she will look at financial projections, as well as history, to assess where you are and where you are going. As far as banks go, products are products. It’s how your banker applies them to your individual situation that makes a difference. That’s where that expertise comes into play, whether it’s with debt, or with equity solutions, even though the bank is not providing the equity itself.
People often don’t realize the benefits of associating with a bank that knows the market. The bank can provide introductions to service professionals and equity investors. It can assist your company as it grows, providing widespread solutions.
The bank can also help as you look to expand internationally. In the early stages, a company may not have the management team to understand the international side of things. Relying on the expertise of a bank with international experience can help you get to the next stage.
When should a business begin to establish a banking relationship?
Starting that relationship early, even if it’s just with a checking account, makes the bank aware of you, and as you grow, it can help guide you through the process and into the next stages.
Think not just about the transaction but about your relationships with different providers. There are providers who will become partners, and there are others that are just transactional. Finding those partners is key to your success.
Michael Field is executive vice president, technology banking division, at Bridge Bank. Reach him at firstname.lastname@example.org or (408) 556-6501.
Insights Banking & Finance is brought to you by Bridge Bank
Whether your company is involved in a lawsuit as a plaintiff or a defendant, bringing the case to a federal trial court could be to your advantage.
Federal trial courts only accept limited types of cases, but if yours qualifies, your attorney can help you determine if moving to that venue is the right decision, says Andrea Figler Ventura, an associate at Dykema Gossett LLP, who previously served as a law clerk for the United States District Court for the Central District of California.
“Although overworked, federal judges generally have more time to read the pleadings and take the time to analyze the motions that are coming in front of them,” she says.
Smart Business spoke with Ventura about how to determine if moving an eligible case to federal civil trial court could be a smart move.
What kinds of cases are eligible to be heard in federal court?
Federal courts are limited in their jurisdiction, and you can only get cases in for two basic reasons. One, you have to have a federal question, a case arising from the Constitution, or from a federal statute or treaty.
The other way into federal court is to have a controversy between diverse parties, which means that the defendant has to be from a state different from the plaintiff, and the amount in controversy has to be more than $75,000. Aside from other statutes that specifically allow a case to be filed in federal court, those are the two basic ways into federal court. Otherwise, your case will not be accepted. Federal trial courts are fairly strict on analyzing these particular jurisdictional issues.
As a CEO, if you are involved in a lawsuit, you need to talk to general counsel as soon as possible. For example, if a plaintiff has filed a lawsuit against your company in state court, you only have a small window — 30 days — to remove cases to federal court.
You need to provide your lawyer with all the information possible to help decide whether you can and should remove the case to federal court. Removal can be tricky, especially when other defendants are involved.
What are the benefits of bringing a case to federal court?
As always, it depends on what the case is. But, generally speaking, federal trial courts may have more time to analyze the pleadings in order to reach a decision based on the papers alone. If your lawyer finds your case can be dismissed under these circumstances, federal court may be the best choice. Federal trial judges are typically more willing to take things ‘off-calendar’ and decide on the papers that lawyers have filed. Under these circumstances, you as a business leader don’t have to pay for a lawyer to appear in court to argue the case.
And, generally speaking, federal judges perhaps have more pedigree to analyze the cases in front of them. Federal judges have been through a lot just to be nominated for the appointment by the U.S. president and, once they’ve been affirmed by the U.S. Senate, they’ve passed the test, so to speak. They are not elected as some state judges are.
And, while it is a generalization, federal court judges are more likely to dismiss a pleading on an initial motion, or motion for summary judgment, if there is a solid reason to do so based on the letter of the law, and a court of appeal would likely affirm the decision. Obviously, this generalization favors defendants.
What are some other benefits?
When it comes to discovery, there’s a more structured format in federal court, versus state court. This typically presents less surprise than state court. So federal discovery allows you to get a better feel of what you’ll go through in this process.
Also, the discovery rules have mandatory disclosure, which can be very helpful to plaintiffs. Sometimes plaintiffs will file a lawsuit, but they don’t have any evidence or information supporting their allegations. But because there is mandatory initial disclosure under federal law, they get some key information early in the case.
In the same sense, because there is a mandatory disclosure rule, both parties have crucial information up front, which, in some cases, allows them to reach a settlement sooner and narrow the costs for both parties.
How does the judgment process differ?
In federal trial court, there is one single judge that oversees the entire case, so he or she knows everything from A to Z about the issues. While magistrate judges assist the federal judge with discovery issues, the federal trial judge has the ultimate say on everything. Therefore, discovery, trial and settlement are all under one judge. Because of that, the judge has control of the timeline. With this control, many federal judges run a tight ship, making the federal trial process move more quickly than in state court where, generally speaking, the process isn’t as structured and you can have different judges on different parts of the case.
Also, because federal judges are appointed by the president, some presidents nominated federal judges seeking the general mandate to follow the letter of the law, which can benefit defendants, generally speaking. This judicial doctrine narrows the power of the court to really follow what Congress meant to do by analyzing the text of the law rather than interpreting the reasoning of why it passed the law. In other words, it focuses on the letter of the law more so than the spirit of the law. Interpretation of the spirit of the law can lead to broader and more diverse judicial decisions.
Andrea Figler Ventura is an associate at Dykema Gossett LLP. Reach her at (213) 457-1745 or Aventura@dykema.com.
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Every employer considers foundational rewards — base pay, benefits, retirement packages and paid time off — when working to attract and retain employees. But there’s more to it than that, if you want your employees to remain engaged in their work, says Josh Strok, Director of Rewards, Talent and Communication at Towers Watson.
“You should consider performance-based rewards, such as merit-based pay, bonus plans and recognition programs, which help differentiate performance and reward top performers,” says Strok. “These rewards focus employees on the company’s priorities, as workers see where the organization is putting additional dollars. There are also career and environmental rewards, which include career development opportunities, training, mentoring, corporate social responsibility and wellness programs.”
Smart Business spoke with Strok about how employers can use total rewards optimization to allocate their reward investments for maximum return.
Why should an employer create a total rewards program?
We know organizations have placed additional burdens on employees since the beginning of the recent recession. In our 2011/2012 Talent Management and Rewards Study, nearly two-thirds of organizations have employees working more hours over the past three years, and over half of the companies expect this to continue over the next three years. Coupled with the increasing difficulty to attract and retain top performers and people with critical skills, crafting appropriate total rewards programs is more important than ever.
Employers are worried they might not be able to meet employees’ expectations as the labor market heats up and workers gain more negotiating leverage. By evaluating your total rewards offering now, you can determine how to strengthen your organization’s employee value proposition — and minimize the risk associated with losing critical-skill talent.
Most employers know that a highly engaged work force is a leading indicator of strong financial performance. So they’re working to deliver an employee deal that engenders workers’ rational, emotional and cognitive commitment to the business. When committed fully, employees are more willing to make a discretionary effort to go above and beyond the minimum that’s required.
Has total rewards optimization been overlooked?
Yes, until recently. In the past, employers typically started from a compensation and benefit standpoint, which addressed foundational and some performance rewards. However, they developed and managed the various components as very separate programs. Today, more companies recognize the power of blending these reward programs and looking for ways to reinforce the overall total rewards deal.
CHROs and CFOs know they have one pool of money to spend on all aspects of total rewards — health care and retirement benefits, job training and base pay increases. With limited dollars, they’re trying to figure out how to get the biggest bang for their buck. The challenge is to offer the right deal to the right employees — a deal that will keep top-priority workers highly engaged — within the confines of the company’s fiscal constraints.
In putting together a total rewards optimization (TRO) program, how should employers begin?
Start by looking at what you have in place and how you spend your dollars, and determining whether that’s competitive against companies with which you compete for talent.
Next, understand your employees’ preferences and use employee surveys with conjoint analysis to determine which rewards have the biggest impact on employee attitudes and behavior. Segment your work force and ask employees in each segment what they want and what they’re willing to trade off. For example, if you can spend $100, would employees rather have a lower health care deductible or a better training and development program? Or more base pay or a better retirement program?
Based on that feedback, you can look to shift your investments among programs (i.e., portfolio optimization) to create total reward portfolios that deliver the highest return. The goal is to invest finite reward dollars across the work force in a way that balances organizational and employee interests creating the highest possible perceived value at the most economical level.
For instance, if employees say lower health care costs are more important to them than the retirement program, explore the opportunity to invest more in health care programs if you reduce your 401(k) match. If so, employees will be more engaged with that deal, because you tried to construct a total rewards program in light of their wants and needs.
Rebalance your allocation, and make trade-offs you can live with. You’re not going to eliminate your 401(k) plan, but maybe you can spend less there to better invest in areas your employees value more.
How do employers determine whether the total rewards optimization program is succeeding?
After a year or two with the new program in place, you should assess its effectiveness. This is an ongoing part of an effective total rewards strategy. Be sure to check with employees. Do people feel better about their jobs and about what’s going on in the company? If you were trying to address unwanted turnover, look at the hard metrics. If you formerly had 8 percent turnover and now have 4 percent, clearly what you’ve done is working. If you were looking to save money, did you do so at the expense of reduced engagement?
The issue isn’t only about deciding whether to spend more or less in total. The real questions are whether you know what your employees value, and whether you can adjust your total rewards investments accordingly. You don’t have to do it all at once in a full-scale redesign. Many employers do it in steps and focus on big-ticket programs or areas that earn the least employee value.
Josh Strok is Director, Rewards, Talent and Communication at Towers Watson. Reach him at Joshua.Strok@towerswatson.com or (818) 623-4577.
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Service providers are touting the benefits of cloud computing, and more and more businesses are moving to the cloud. But beyond the benefits, there are also dangers, and companies should consult with an attorney to ensure that the language in the contract will protect them, says Bill Cramer, senior counsel at Dykema Gossett PLLC.
“Service providers like to emphasize the potential financial benefits by saying that inside every cloud is a silver lining,” says Cramer. “However, inside some clouds, there is golf-ball-sized hail. When you give up your computing needs to a third party, you give up control and expose yourself to potential liability.”
Smart Business spoke with Cramer about contractual issues to resolve before moving to the cloud.
What legal issues do companies need to be concerned about when moving to the cloud?
You need to protect yourself in contracts with your service provider. With your own network, you control your security. But if you move your computing needs to a third party, you lose that control.
The contract should address how the hardware is protected from both outside and inside intruders. Does it require security guards or alarms? Does it limit access, require background checks, and have entry and exit logs? How does it protect data from electronic intruders? Does it have passwords to access systems? Does it encrypt data when it is stored and transferred to and from the Internet?
The contract should require segregation of your data from other companies’ data, because you don’t want your data mingled with that of another company. And if you are subject to regulations such as HIPAA or PCI, make sure the provider is contractually obligated to meet those standards.
Further, how often does the provider update system software? If it doesn’t keep its software up to date, your information may be at risk. You should expect your information to be at least as secure off site as it is in your own building, and your contract needs to set out what the provider is doing to protect it.
How can a company address uptime requirements and remedies?
While with your own network, you don’t have control over unexpected failures, you do have control over how you respond. But once you move into the cloud, you lose that control. Specify in your contract how information is stored online: At a minimum, there should be some level of redundancy, and preferably some level of error correction such that failure of a hard drive doesn’t take your system offline.
Second, where is online information stored? Are there multiple copies at multiple locations, so if there is a catastrophic failure at one site, is there a secondary site where service will continue so you can maintain your business?
Third, if the cloud becomes inaccessible for a short period, is there any definition of ‘short period?’ A service provider may promise 99.9 percent accessibility, but over a year, that’s more than eight hours of unscheduled down time. Further, some providers don’t start counting such interruptions as down time unless the interruption lasts more than five minutes.
Fourth, does the provider make periodic backups of data and have an applicable transaction log so it can recover data if there is a software problem? Fifth, the provider should have a cluster of computers with multiple redundancies so if one is taken down for maintenance, it doesn’t affect service.
Finally, your contract should specify what level of support you can expect when there are problems.
What should the contract cover regarding liabilities to third parties?
You may become liable as a result of a breach in security, resulting in notification requirements, which can be expensive. You may be accused of patent infringement because of the provider’s services. It’s important to spell out in the contract that the provider is on the hook to indemnify you for your costs, as well as to provide for your defense if you are sued.
How should the contract address remedies?
The contract is empty unless it ultimately provides a remedy. Typically, contracts have limits of remedies, for example, if service fails, you don’t have to pay for that service. But you need to put a dollar value on what it means to your business to be offline for a minute, an hour, or a day. The provider may offer credit for down time, however, that credit has to be enough to incentivize the provider not to fail. For example, an hour of unplanned availability should result in more than an hour of credit, so that the provider has an incentive to get it right.
What if the move to the cloud fails?
You need to have a graceful retreat. Even with a competent service provider, a good internal team and a solid migration path, it still may not work as you expected. Start slowly, preferably with a pilot project that won’t cause too many headaches if it fails.
The contract needs to have a migration path to retreat, to recover data and software from the provider and bring your information back to your facility. This can be difficult if you didn’t expect it. It may take weeks to retrieve your data and software from the cloud, and during that time, how do you conduct your regular business?
To ensure all your bases are covered, look to a law firm that has experience dealing with the specifications, technology and provisions of service that can examine the contract for missing but essential terms and terms that carve out big exceptions in the provider’s obligations.
Bill Cramer is senior counsel at Dykema Gossett PLLC. Reach him at (214) 462-6418 or email@example.com.
Insights Legal Affairs is brought to you by Dykema Gossett, PLLC
When you’re considering buying a company, it’s not just a matter of locating a target and writing a check. There’s a lot that goes into doing proper due diligence, and if you fail to do it right, the transaction could be disastrous, says Thomas Vaughn, member, Dykema Gossett PLLC.
“From the purchaser’s perspective, conducting an effective due diligence process is critical to maximizing value from your acquisitions,” says Vaughn.
Smart Business spoke with Vaughn about why due diligence is critical to ensure a successful acquisition.
When considering purchasing a business, what is the first step?
Start by assembling a team of in-house and outside lawyers, inside and outside financial professionals, and possibly experts in various areas impacting the target. In the due diligence process, it is the job of the buyer to learn and understand everything it possibly can about the prospective target, and that requires a very deep dive by the due diligence team.
What is the next step?
The team should develop a due diligence strategy, and one of the most important components of that is to agree on the purpose of the due diligence effort.
From a buyer’s perspective, due diligence can be a very expensive process, so it is typically done in stages to keep costs down until the buyer is certain it is going to complete the transaction. As a result, in the preliminary due diligence, you are trying to determine the target company meets your investment parameters. You’re looking for ‘go, no go factors.’
The early stages of due diligence are very financial and operations oriented. For instance, making sure the financial statements and projections accurately represent the company’s business prospects and that there aren’t any major customer problems or potential defections are critical elements of due diligence.
From a legal standpoint, you look for high-dollar legal issues, like pending litigation or claims, or legal impediments to completing a deal, such as regulatory issues.
Also determine that the value you see in the company is an accurate perception of its true value. As part of that, identify and confirm synergies. All of these efforts will help you negotiate the purchase price and other deal terms.
Once you are satisfied with value and have signed a letter of intent, you can conduct the detailed part of the due diligence process.
How do you proceed with the detailed due diligence?
This is when the process starts in earnest. Have your team divide up responsibilities so that you’re not duplicating efforts and you are conducting the process as efficiently as possible. You want to make the process as smooth as possible for the seller. Due diligence is burdensome and time consuming for the seller. Don’t have multiple people asking the same questions or asking for the same documents.
One of the best ways to help this run smoothly is to present the seller with a detailed checklist. Often there is information listed on there that the company doesn’t have, but you can use the list to trigger the seller to think through the information documents the seller has and should be providing to you. Then keep the list updated to reflect documents received and make the list available to all team members
How is the due diligence information delivered?
Determine up front the deliverable to come out of the due diligence process. Is the expectation a written report from the accounting and legal staff? That is the most typical result, but there is an expense involved, so you have to determine if you want to incur that. You can also start with an oral report or short written report that notes red flags and items that are potentially problematic as a precursor to the full report.
That report should come with recommendations as to which problems can be potentially fixed and how to fix them, or whether the problem is so significant that it should have an impact on the purchase price or the decision to move ahead. Another outcome when due diligence identifies problems or uncertainties might be to have part of the purchase price paid as an earn-out. If certain things represented by the seller happen, you’ll pay the full price, but if they don’t, you won’t have to.
What are some red flags?
The biggest one is a very disorganized seller. In this case, the buyer needs to do very thorough due diligence. Lack of documents where you expect to see them, or poorly drafted documents or contracts, are also an issue.
Another red flag is a seller who provides you with certain due diligence but is slow providing other information. This may be an indication the seller is holding back bad news.
How does due diligence help in preparing schedules used in the typical acquisition agreement
The seller makes representations and warranties in the acquisition agreement and puts exceptions in the schedules. Then the buyer reviews them to get comfortable that nothing new has appeared in the schedules that was not disclosed in the due diligence process. It’s not unusual for new information to appear in the schedules, which can be a big problem.
If the buyer feels the seller intentionally didn’t disclose information until the last minute, it can have a very negative impact on completing the transaction and the ongoing relationship between the retained members of the management team and the buyer.
What kinds of things can show up at the last minute?
Usually it is a problem the seller was trying to solve before he or she has to disclose it, but can’t. The seller discloses it in the schedules just before the acquisition agreement is signed to avoid later indemnity claims. But doing so at the last minute is a problem in itself.
Thomas Vaughn is a member at Dykema Gossett PLLC. Reach him at (313) 568-6524 or TVaughn@dykema.com.