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Business & Corporate Lawyer, Small Business Attorney Northern Virginia.

Gross & Romanick, P.C. > Business & Corporate Lawyer, Small Business Attorney Northern Virginia.

What is Spoliation? Why does my business need to worry about it?

If you or your business are involved in a lawsuit or a potential lawsuit, you need to be concerned about the concept of "spoliation of evidence." Spoliation of evidence occurs when an individual or entity breaches its duty to preserve relevant evidence. In the 2013 case of DuPont v. Kolon, a federal judge in the Eastern District of Virginia awarded DuPont approximately $4.5M in expenses, costs and attorney's fees as a result of Kolom's violation of its "obligation not to spoliate evidence". This sanction award was over and above the actual damages of $919.9M awarded by a jury to DuPont....

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Has My Business Been Properly Served With A Lawsuit?

If you own a Virginia corporation or limited liability company (“LLC”) that is being sued, it is essential to know if service has been properly perfected on your company. “Perfecting service of process” occurs when the formal summons, warrant, complaint, writ or other legal paperwork issued by the court (the “process”) has been delivered to a party to the case in accordance with the law. Since a court cannot exercise its jurisdiction over a matter until service is perfected, the obligation of a corporation or LLC to respond to a lawsuit is triggered only when service of process is perfected. In...

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Non-Competes – Enforceable in Virginia? – Part 2

The November edition of this newsletter discussed the three-prong test adopted by Virginia courts when reviewing the enforceability of non-compete agreements. To recap, Virginia courts do not enforce non-compete restraints that are: (1) greater than necessary to protect the employer in some legitimate business interest, (2) unduly harsh and oppressive in curtailing the former employee's legitimate efforts to earn a livelihood, or (3) contrary to sound public policy. This article will continue the discussion to provide the reader with a more in-depth understanding of the court's analysis. The focus of the court's review generally involves whether the restrictions are reasonable with...

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Non-Competes – Enforceable in Virginia?

Contrary to popular misconception, courts in the Commonwealth of Virginia continue to enforce non-compete agreements. It is true that the Supreme Court of Virginia has gradually tightened the standards that non-compete agreements must meet in order to be enforced by the lower courts in Virginia. However, the Supreme Court has also mandated that the lower courts conduct evidentiary hearings (i.e. trials) before dismissing non-compete lawsuits in order to review the unique facts of each case. As a result, ex-employees are faced with protracted and expensive litigation if the employer decides to sue, regardless of whether the non-compete agreement is ultimately...

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What is a fictitious name certificate? Does my business need to file one?

Under Section 59.1-69 of the Virginia Code, any business operating in Virginia under a name that is different from the owner's legal name must file a certificate of assumed or fictitious name (also called a "certificate of trade name certificate") setting forth the name under which the business is conducted and the owner of the name. The obligation to file the certificate extends to individuals, corporations, LLCs, limited partnerships, and LLPs. Currently the certificate is filed in the clerk's office of the county or city where the business is conducted, and registered business entities are required to file a certified...

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My company is properly registered in Virginia but we do business in various other states. Do I need to register my company as a “foreign” entity in those states?

registered agent Fairfax, registered agent Virginia

While each state has different rules, there are some general principles that govern the registration of "domestic" Virginia entities in other states. Most every state tests the need to register based on the frequency and the nature of the business transactions occurring in the applicable state. It is not always easy to make a determination, but you can find the rules for each state here: https://www.sba.gov/starting-business/choose-register-your-business/register-state-agencies In most states, you will need to register your Virginia entity as a foreign entity if any of the following are true: You maintain an office in the state. You have employees physically working in...

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Should a Virginia company formally dissolve and terminate when it is going out of business?

The process of dissolving and terminating a Virginia corporation or a Virginia limited liability company (each generically referred to in this article as an “entity”) was discussed in the January edition of this newsletter. As stated in that article, when a business owner desires to close an entity, he or she can elect to formally dissolve and terminate the entity, or simply fail to pay the annual fee owed to the State Corporation Commission (SCC) (in which event the SCC will automatically terminate the existence of the entity three (3) months after the final due date for the annual fee). Clients...

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Employee Severance Agreements – Legal Analysis

In today’s weakened and uncertain economic climate, the sad truth is that many employers are being forced to release members of their work staff, and many employees are facing the loss of their jobs. It is the practice of many employers to present recently dismissed employees with severance packages, conditioning the receipt of any severance benefits on the execution of a severance agreement and release. These agreements require careful legal analysis on both ends – from the perspective of the former employee, and from the perspective of the employer. EMPLOYEE If you are an individual that has been given a severance agreement...

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The Importance of Having a Written Contract

A common problem that we encounter at Gross & Romanick is the client who wishes to enforce an agreement that was not put into a writing signed by all parties. Even an exchange of e-mails or written proposals without a signature does not necessarily create a binding contract. While some oral agreements are enforceable, it can be extremely difficult to prove the existence of an oral contract and its terms. To be enforceable, an oral contract requires: (a) a meeting of the minds, (b) definite terms, and (c) a pattern of adherence to those terms. More often than not, the existence of an...

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Credit Applications: The Smart Way to Extend Credit

Merchants, landlords and anyone who extends credit via note, contract or lease should follow the lead taken by banks when making credit decisions. Make sure your applicant fills out a credit application. The credit application is a fact sheet about the debtor; often, it also includes credit terms. Part of the credit application should be a request for specific documents, such as tax returns, deeds and automobile titles. There are important reasons why you should obtain detailed information before you extend credit. First, if there is a default, background information and a listing of assets will be invaluable during the collection...

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