New Orleans Business Law Attorney

COLLECTIONS

An attorney can assist in collecting past due debts for a business in several ways:

1. Drafting Demand Letters: One of the first steps in the debt collection process is sending a demand letter to the debtor. This letter will outline the details of the debt, including the total amount owed, the date the debt was incurred, and a deadline for payment. An attorney can help draft this letter to ensure it includes all necessary information and is legally sound.

2. Negotiating Repayment Plans: If the debtor is unable or unwilling to pay the full amount all at once, an attorney can help negotiate a repayment plan. This could involve setting up a payment schedule, reducing the total amount owed, or offering other concessions in exchange for payment.

3. Filing Lawsuits: If the debtor refuses to pay or fails to respond to the demand letter, an attorney can file a lawsuit on behalf of the business. The attorney will represent the business in court and present evidence to support the claim that the debt is owed.

4. Enforcing Judgments: If the court rules in favor of the business, the attorney can help enforce the judgment. This can involve garnishing the debtor’s wages, placing a lien on their property, or seizing their assets.

5. Advising on Legal Rights and Responsibilities: Throughout the collection process, an attorney can advise the business on its legal rights and responsibilities. This can help the business avoid potential legal pitfalls and ensure it is acting in accordance with debt collection laws.

The attorneys at The Sunseri Law Firm, LLC strives to “Make The Complex Understandable”. If you have any questions, contact The Sunseri Law Firm, LLC today to schedule a consultation.

CONSTRUCTION

A lawyer can provide valuable assistance to a construction company or sub-contracting company in a variety of ways including:

1. Contract Drafting and Review: Lawyers can help draft and review contracts to ensure they’re legally sound, protect the company’s interests, and comply with all relevant laws and regulations. They can also help with negotiation of contract terms.

2. Litigation: If disputes arise during the course of a construction project, such as those regarding quality of work, delays, or non-payment, a lawyer can represent the company in any resulting litigation.

3. Regulatory Compliance: Construction is a heavily regulated industry. A lawyer can advise on compliance with various regulations, such as building codes, environmental laws, and occupational safety and health standards.

4. Dispute Resolution: Lawyers can assist with resolving disputes that may arise during construction projects, such as those with subcontractors, suppliers, or clients. This can involve negotiation, mediation, or arbitration.

5. Risk Management: Lawyers can provide advice on risk management, helping the company to identify potential legal risks and take steps to mitigate them.

6. Employment Law: Construction companies often have numerous employees and may face issues related to employment law. Lawyers can provide guidance on matters such as worker’s compensation, wage and hour laws, and hiring and firing practices.

7. Real Estate Law: Lawyers can assist with real estate transactions related to construction, such as land acquisition, zoning issues, and lease agreements.

The attorneys at The Sunseri Law Firm, LLC strives to “Make The Complex Understandable”. If you have any questions, contact The Sunseri Law Firm, LLC today to schedule a consultation.

INCORPORATION AND CORPORATE FORMATION

A lawyer can provide critical assistance in the formation of a corporation or a Limited Liability Company (LLC) or Corporation in various ways:

1. Choosing the right business structure: A lawyer can help determine whether a corporation or an LLC is the right business structure based on the specific needs, goals, and circumstances of the business.

2. Preparing documents: The formation of a corporation or LLC requires the preparation and filing of certain legal documents. For a corporation, these include articles of incorporation, bylaws, and initial director consent forms. For an LLC, these include articles of organization and an operating agreement. A lawyer can draft these documents to ensure they comply with all legal requirements and reflect the business’s needs.

3. Filing documents with the state: These formation documents need to be filed with the appropriate state agency. A lawyer can handle this filing process and deal with any issues that may arise.

4. Advising on compliance issues: Corporations and LLCs are subject to various regulations at the federal, state, and local levels. A lawyer can advise on these regulations to ensure the business is in compliance.

5. Advising on tax issues: The choice between a corporation or an LLC can have significant tax implications. A lawyer can provide advice on these issues to ensure the business minimizes its tax liability.

6. Shareholder and operating agreements: A lawyer can help draft shareholder agreements for corporations and operating agreements for LLCs. These agreements set out the rights and responsibilities of the owners and can help prevent disputes down the line.

7. Issuing stock or membership interests: A lawyer can assist in the proper issuance of stock for corporations or membership interests for LLCs. This involves preparing stock certificates or membership interest certificates and maintaining a ledger of all issued shares or interests.

The attorneys at The Sunseri Law Firm, LLC strives to “Make The Complex Understandable”. If you have any questions, contact The Sunseri Law Firm, LLC today to schedule a consultation.

MERGERS AND ACQUISTIONS

A lawyer can assist various parties in a merger or acquisition based on the following:

1. Buyer’s side: A lawyer can provide legal advice and due diligence on behalf of the buyer. This includes reviewing the target company’s legal and financial status, contracts, liabilities, compliance with laws, and other matters that could affect the transaction.

2. Seller’s side: A lawyer can also represent the seller, ensuring all legal documents are in order, helping negotiate the terms of the sale, and ensuring the seller’s interests are protected.

3. Target Company: If the company being acquired or merged is a separate entity, a lawyer can also assist this company. They can help the company understand the legal implications of the merger or acquisition, ensure the company’s interests are represented, and help navigate any legal issues that may arise.

4. Shareholders: In some cases, a lawyer may also assist shareholders of the companies involved, particularly if there are concerns about how the merger or acquisition will affect their shares or rights.

5. Board of Directors: Lawyers often advise the board of directors on their fiduciary duties and responsibilities during a merger or acquisition, as well as potential risks, benefits, and legal implications of the deal.

It’s important to note that a lawyer should only represent one party in a merger or acquisition to avoid conflicts of interest. If multiple parties require legal assistance, they should each have their own independent legal counsel.

The attorneys at The Sunseri Law Firm, LLC strives to “Make The Complex Understandable”. If you have any questions, contact The Sunseri Law Firm, LLC today to schedule a consultation.

NON-COMPETE CONTRACTS

Non-competition agreements, also known as covenants not to compete or restrictive covenants, are employment contracts used by employers to limit the ability of an employee to compete with the employer by stealing customers or trade secrets. Enforceable agreements must strike a balance between protecting the employer’s legitimate business interests from an unfair competitive advantage with the employee’s right to work in a field for which they are trained.  In general, courts decide what is considered reasonable or not reasonable by examining the type and size of the business, how long and over what geographic area the restrictions apply and whether adequate consideration, or benefit, was given the employee at the time the agreement was signed.

The Louisiana statute that governs non-competition agreements provides that, in general, any contract or agreement that restrains anyone from exercising a lawful profession, trade or business of any kind is prohibited.   The statute then specifically defines exceptions when the agreed upon restrictions are limited to specific geographic areas and last no longer than two years from the termination of employment.  A 2006 amendment to the law, however, specifically prohibits automobile dealerships from restricting former salespeople from selling automobiles.

Consideration

With any contractual arrangement, both parties must be giving and receiving something of value, also known as consideration. Louisiana courts have determined that the offer of initial or continued employment is sufficient consideration or benefit to the employee in exchange for agreeing to not compete with the employer should the employment relationship terminate.

Reasonableness in Time and Geographic Scope

Agreements may be deemed unenforceable if a court finds that the terms do not comply with the statutory limitations of a two year maximum time limit and specifically identifiable parishes, municipalities or parts thereof where the employer carries on a like business.

Examples of non-compete agreements that Louisiana courts have found to be reasonable include:

• A 2-year restriction against a class action litigation assistance service agent where the court modified the 23 parishes listed in the covenant to the three parishes in which the employer actually did business.
• A 2-year, 9-parish restriction against a parking lot manager where the employer only sought enforcement in the two parishes where it operated when the employment terminated.
• A 2-year, 4-parish restriction against a former cellular telephone salesperson from “engaging in a radio-telephone services business similar to that of” the former employer.

The courts have found the following restrictive covenants unreasonable:

• A 2-year, 7-parish restriction against a former pipe testing and inspection business employee where the employer only did business in two of the named parishes.
• A 2-year, 5-parish restriction against a speech therapist from “carrying on or engaging in a business similar to that of” the employer because that language did not specifically define the employer’s business.
• A 1-year restriction against an ophthalmologist from competing within 10 miles of any office of the employer in the “greater New Orleans Area” because the specific territory covered was not sufficiently defined.

Employers need to keep these issues in mind when asking employees to sign restrictive covenants. It is also important to know if potential new hires have a non-compete agreement with a former employer. In some cases, the new employer can be liable to the former employer if hiring the employee would put them in violation of the agreement. Different rules may apply to situations in which all or part of a business is being sold and a restrictive covenant is agreed to by the buyer and the seller.

Louisiana’s recent amendment to the non-competition statute (La. R.S. 23:921), which meaningfully expands the application of employment-related non-compete restrictions within the state, went into effect on August 1, 2020.  This amendment expressly expands the reach of Louisiana non-compete law by, among other things, adding corporate shareholders, partners in partnerships, and members of limited liability companies, to the category of individuals who may be subject to employment non-competition obligations.  

As now amended, La. R.S. 23:921 specifically identifies individual “shareholders of [a] corporation,” “partners of [a] partnership,” and “members of [a] limited liability company” as individuals who may also be subject to a non-compete agreement restricting them from “becoming employed by” a competitive company.  This amendment closes what could have been utilized as a technical loophole in non-compete enforcement, as previously a preexisting employment relationship was required in order to maintain a non-compete restriction.

Notably, the amendments to La. R.S. 23:921 do not change the general enforceability conditions for a non-compete agreement in Louisiana.  Specifically, the non-compete obligation is still limited to application: (1) within a specified parish or parishes, municipality or municipalities, or parts thereof, (2) so long as the employer carries on a like business therein, and (3) may not exceed a period of two years.

OPERATING AGREEMENT

An operating agreement for an LLC typically includes the following key provisions:

1. Membership Interests: This provision outlines the percentage ownership of each member, their rights and responsibilities, and how they can transfer their interests.

2. Management Structure: The agreement must specify how the LLC will be managed. It can either be member-managed, where all the members participate in the decision-making process, or manager-managed, where only designated members or outsiders are given the authority.

3. Capital Contributions: This section defines how much each member has contributed to the LLC and how additional contributions will be handled.

4. Distribution of Profits and Losses: The agreement should define how the LLC’s profits and losses will be allocated among the members.

5. Voting Rights: The rights of each member in voting on company matters should be clearly stated, including what percentage of votes is needed to pass different types of decisions.

6. Buyout or Buy-Sell Provisions: These provisions deal with the scenario where a member wants to sell their interest, dies, or becomes disabled. They can outline how the member’s interest will be valued and who has the right to buy it.

7. Dissolution: The agreement should specify the conditions under which the LLC may be dissolved.

8. Indemnification and Liability Limitations: This section typically includes provisions to protect the members or managers from liability for their actions on behalf of the LLC, provided they acted in good faith and in the best interests of the company.

The attorneys at The Sunseri Law Firm, LLC strives to “Make The Complex Understandable”. If you have any questions, contact The Sunseri Law Firm, LLC today to schedule a consultation.

PARTITION OF CO-OWNED PROPERTY

A co-ownership regime might be convenient and easy to enter into when the co-owners are getting along and agreeing. However, when it comes time to divide up the property and the owners cannot agree on how it should be done, it is often left up to the courts to divvy the property amongst its owners according to the Louisiana Code articles governing ownership in indivision.

Louisiana law is very clear that a person will not be forced to co-own property with another person against their will, which gives rise to a right to partition. Partition is the dividing up of property, which terminates the co-ownership regime. It can be done by the agreement of the co-owners, but if there is no agreement, it can and will be done by the courts.

The court can decide to partition the property one of two ways: in kind or by licitation. Partition in kind is the division and distribution of the property itself. This only works if the property can be divided up in shares that are roughly equal in value. Some examples of property that can be partitioned in kind are bank accounts (where just money is being divided up) and unimproved property (where all the land is roughly the same in terms of location and value and can be put to the same purpose if it is divided into lots).

When the property cannot be equally divided, the property must be sold and the proceeds split between the co-owners in proportion to their ownership shares, which is partition by licitation. This method is used when the property is incapable of being split and maintaining its functionality, such as when the property is a single-family home or a car. The sale ordered by the court may be a public auction, similar to a sheriff’s sale, or a private sale directed by the court.

Other Considerations That Arise During Partition

When co-owned property is partitioned, either in kind or by licitation, the division between the co-owners is proportional to their ownership interest in the property. Therefore, if there were two co-owners who own the property in equal shares, the property or its proceeds would be divided 50/50. But there are certain situations where the division might not strictly follow the shares of the co-owning parties.

If one of the co-owners has spent money necessary on the upkeep and use of the property, to maintain or repair the property, or paid another person to manage the property, that person will be entitled to a partial reimbursement of those expenses from his or her other co-owners. The law assumes that the expenses on the property will be split between the co-owners, and if the judge is presented with evidence that one co-owner took on a particular expense without the contribution of his or her co-owners, the non-paying co-owners will be required to pay back their share of the expenses during the partition of the property. However, if the co-owner who was paying the expenses had the use of the co-owned property, the value of his or her use may reduce the amount is entitled to the other co-owner.

Partitions that are supervised by the courts can often be long, drawn-out affairs where detailed accountings are required to make sure that every co-owner has reimbursed and been reimbursed by their fellow co-owners for expenses paid on the property. Also, particularly where there is a partition by licitation that results in a public auction, the property often fetches a smaller price than in the open market, resulting in less money to be divided amongst its owners.

REAL ESTATE TRANSACTIONS/LITIGATION

When investing in commercial or residential real estate, we all want a successful transaction. However, this is not always the case. Unknown factors can lead to real estate litigation. A lawyer  can protect your best interests in real estate transaction in the following circumstances including:

• Breach of contract
• Quiet title actions
• Construction defects
• General real estate litigation
• Perfecting or confirming a prior tax sale
• Evictions when businesses or individuals cease payment on leases
• Problems during construction, representing either the builder or purchaser

In addition to real estate litigation, A lawyer can prepare, draft, and negotiate leases and purchase agreements to protect the interest of the landlord or tenant.

The attorneys at The Sunseri Law Firm, LLC strives to “Make The Complex Understandable”. If you have any questions, contact The Sunseri Law Firm, LLC today to schedule a consultation.

SHAREHOLDER AGREEMENTS

Shareholder agreements often contain a number of key provisions, including:

1. Capital Contributions: This outlines the initial contributions made by each shareholder, often in exchange for shares.

2. Share Valuation: This section describes how the value of a share will be determined, which is crucial in the case of a sale, transfer, or dispute.

3. Rights and Obligations of Shareholders: These clauses specify the rights of shareholders, such as voting rights, dividend entitlements, and access to company information.

4. Board Representation: Details about who has the right to appoint directors to the board and how those appointments are made.

5. Share Transfer Restrictions: Restrictions may be placed on the sale or transfer of shares to maintain control within the existing group of shareholders. This could include provisions for right of first refusal, tag along rights, or drag along rights.

6. Dispute Resolution: This section outlines how disputes between shareholders will be handled, often specifying negotiation, mediation, or arbitration processes.

7. Exit Strategy: This provision details how a shareholder can exit the company, whether through sale of shares, liquidation of the company, or other means.

8. Non-Compete Clauses: These clauses can prevent shareholders from engaging in business activities that compete with the company.

9. Confidentiality: This section requires shareholders to keep certain information about the company confidential.

10. Changes to the Agreement: This provision sets out how the shareholder agreement can be amended or altered.

The attorneys at The Sunseri Law Firm, LLC strives to “Make The Complex Understandable”. If you have any questions, contact The Sunseri Law Firm, LLC today to schedule a consultation.