The “discovery” phase of a lawsuit can be a tedious time, as both sides have the opportunity to ask questions from the other side and try to develop the facts that will ultimately be used to decide the outcome of the case.
Although there are other forms of “paper” discovery, in which the sides will exchange lists of questions for the other side, or requests for documents or admission to certain facts, the “deposition” can be time-consuming for both sides and nerve-racking for the party to be deposed.
When a party to a case or a potential witness in a case sits for a deposition, that person is, essentially, testifying. The difference is that the deposition occurs out of court – typically in one of the attorneys’ offices. A court reporter will be present to record the testimony and prepare a transcript of the questions and answers.
Unlike courtroom testimony though, deposition questions and answers can sometimes be much more far-reaching – less concise. This is because there may be a bit of searching for more information that, if it comes to courtroom testimony, will be whittled down to the relevant facts or inconsistencies.
Inconsistencies between deposition testimony and courtroom testimony can be powerful evidence. Like testifying in court, those who are being deposed may be nervous. But, like testifying in court, preparation is key.
]]>On Behalf of Codispoti & Associates, P.C.https://www.codispotilaw.com/?p=617892024-02-23T04:51:52Z2024-02-29T04:51:38Zessential for making an informed decision tailored to your goals.
Starting your own business means autonomy
Embarking on an independent business journey grants you unparalleled autonomy. As the sole decision-maker, you are responsible for the entirety of your venture, from financial aspects to marketing strategies. However, the absence of ready-made support or training means you are charting your course without external guidance. Developing business culture, systems and processes falls solely on your shoulders.
Starting your own business means crafting your own business model
Crafting a comprehensive business plan is imperative when starting from scratch. This plan should encompass crucial elements like an executive summary, company description and market analysis. Standing out in a competitive landscape demands continuous adaptation to market shifts. In contrast to franchising, where an established brand offers a proven business model, the inception of an independent business requires more extensive development efforts.
Giving up some autonomy, but having some support
Opting for a franchise can afford autonomy in operations while enjoying the backing of a dedicated partner, the franchisor. The level of autonomy you receive varies based on the franchisor. However, franchises provide structured training, established systems and ongoing support, ensuring you are not navigating the business terrain in isolation.
Buying a franchise means buying into a proven business model
The upfront costs of buying a franchise can be higher with start-up expenses (franchise fees, etc.), rent, utilities, employee wages, and taxes. A non-refundable franchise fee is part of the initial costs, contributing to the comparatively higher upfront investment. You must pay a percentage of your sales back to the franchisor, and depending on your business, you may also be limited to sourcing your product from them as well, which means you are beholden to their costs.
Forging an independent business path offers autonomy, but it demands substantial effort in system and process development. On the flip side, embracing a franchise model provides a proven business framework with ongoing support, albeit with a higher initial financial commitment and ongoing backend costs. Carefully assess your goals, risk tolerance and available resources to make a decision aligned with your entrepreneurial aspirations.]]>On Behalf of Codispoti & Associates, P.C.https://www.codispotilaw.com/?p=617882024-02-09T05:11:38Z2024-02-14T05:11:22Zunder state law.
With a partnership, the assets are the partnership property and contributions the partners made to the business. For example, if there was office space or a factory, there will be items that are necessary for the operation of the business. Assets can include anything including bank accounts, real estate, furniture, equipment, automobiles and more.
Once the parties have determined who is entitled to what and distributed the assets, outstanding debt will need to be repaid. Many businesses have loans to continue operation. They will have creditors who must be paid back. The priority will be for outside creditors to be repaid first. Then partners who are creditors must be repaid. If there were contributions, partners who made them will be repaid. The remainder will be split by the partners.
In some cases, the law might not be clear cut as there was a separate agreement among the partners. If one partner contributed a bulk of the capital at the start, they could be entitled to receive a greater share based on the contract. Scrutinizing any contract is key as it will undoubtedly impact how distributions are made and debts are repaid.
Be protected when dissolving a partnership
These cases can be complicated and even in situations where the partners are departing as friends, it is important to be protected. The law dictates how assets and liabilities are divided, but there might have been agreements in place that detail who is entitled to what and which person is responsible for that which is owed.
Whether it is a case that requires business litigation, negotiation or a simple ending of the partnership, it is important to have a full grasp of business law. This can be beneficial financially, for the future of this business and with other business endeavors. Being protected is key and should be a priority from the beginning.]]>On Behalf of Codispoti & Associates, P.C.https://www.codispotilaw.com/?p=617872024-01-30T06:58:39Z2024-02-02T06:58:18ZIntellectual property rights
With more than 30 years of experience in intellectual property matters, the attorneys at Codispoti & Associates, P.C. understands what it takes to protect your legal rights and ideas in the most efficient and cost-effective manner. Our law firm has extensive knowledge and expertise, helping our clients navigate a wide breadth of intellectual property matters.
Whether it is copyright or trademark registration, copyright enforcement, infringement litigation, trademark enforcement, licensing of intellectual property or litigation to prosecute or defend a violation claim for a protected intellectual property right, our law firm is available to help.
Protection and enforcement
When taking measures to protect your intellectual property, it is important to understand this process and any actions that you need to take to maintain or enforce this protection. Registering a copyright or trademark is the starting point; however, it is vital that any maintenance needed is understood.
If you believe your rights have been infringed on or violated, gaining a better understanding of the situation is imperative. This can help establish if such conduct did occur, and if so, what measures you can take to address and resolve it. In some cases, a violation could cause you to suffer damages. As such, moving forward with a lawsuit could help you obtain a settlement or judgment and its enforcement.
Intellectual property matters could get complex and confusing. Whether you seek to register a copyright or trademark or seek to take legal action to protect your registered copyright or trademark, it is important to understand your rights and legal options. A legal professional can assess your matter and help you make informed decisions to better protect your intellectual property rights.]]>On Behalf of Codispoti & Associates, P.C.https://www.codispotilaw.com/?p=617862024-01-18T10:44:46Z2024-01-23T21:58:41ZBusiness closing
Depending on the business type and your industry, the steps may vary slightly but it is important to first check any legal requirements, such as filing dissolution forms. If you have a board of directors and shareholders, you may also need to notify them and receive their approval before you can close.
If you owe money to any creditors or have outstanding payments, you will need to pay those. If you are low on funds, you may need to consider selling business assets. If there are any remaining assets, those will need to be distributed.
You will also need to file tax returns and pay any outstanding taxes, including local, state and federal taxes. If you have any licenses or permits, those will need to be cancelled.
If you have employees, it’s important to give them as much notice of the closing as possible and ensure that they receive their last paychecks. Also, if you have customers or vendors you will need to let them know about the closing.
Once all financial matters have been settled, you can close your business bank account, but you will want to retain all business records.
Business owner protection
In addition to the steps above, you can further protect yourself as a business owner by making sure that you maintain any necessary insurance policies until the business closes, ensure that you follow all legal and financial requirements, and meet any final compliance requirements with regulatory authorities.]]>On Behalf of Codispoti & Associates, P.C.https://www.codispotilaw.com/?p=617852024-01-02T06:04:16Z2024-01-05T06:03:44ZThe answer is not so simple. Non-compete clauses are not banned, but they are subject to strict judicial scrutiny and may be unenforceable if they are unreasonable or unnecessary.
What makes a non-compete clause enforceable?
According to the New York State Attorney General, a non-compete clause is only allowed and enforceable to the extent that it complies with state law and New York common law. It must be necessary to protect the employer’s legitimate interests, and it must be reasonable in time restriction and in geographic scope. However, the non-compete clause cannot impose an undue hardship on the employee or cause harm to the public.
What is a legitimate interest?
An employer may want to protecting its trade secrets, confidential information or preventing employees from leaving with specialized skills. However, a non-compete clause cannot be used to prevent ordinary competition or to restrict an employee’s mobility or career advancement.
Cannot be overly broad
A non-compete clause’s restrictions must be no greater than necessary to protect the legitimate interests of the employer. There is no bright-line rule on this, and as a result, courts consider the employee’s job duties, the employer’s business interest and the language of the agreement.
Enforcement and modification
A court will not enforce a non-compete clause unless it determines that it meets the required criteria. Judges can also modify or invalidate a non-compete clause if it finds that some parts of it are unreasonable, such as the non-compete effective length of time or the geographic area it covers.
Recent developments in New York City
In June 2023, the New York City Council introduced a bill to ban non-compete clauses for employees earning less than $75,000 per year, but it has not been enacted yet. Though, New York State does prohibit non-compete clauses for broadcast industry employees. This is currently, the only broad ban on non-compete clauses in New York.
]]>On Behalf of Codispoti & Associates, P.C.https://www.codispotilaw.com/?p=617832023-12-14T06:54:41Z2023-12-19T20:08:44Zcopyright law and business. It's so easy to copy protected works that some people think that copyright law doesn't apply to them. They can later find out that they were badly mistaken.
$6.3 million judgment
Recently, a court ruled in favor of a photographer in a copyright infringement case, awarding him an eye-popping $6.3 million in damages.
The case involves a senior living company that used 43 images by an architectural photographer without a licensing agreement. The photographer sued the company for copyright infringement. Rather than settling the case, the company went to court, arguing that there was no infringement.
After reviewing the evidence, the jury found the defendant liable for willful infringement. For at least some of the images, the jury awarded the maximum amount of damages: $150,000.
Willful infringement
The question of damages in a copyright case can be complicated. In some cases, a plaintiff can show actual damages by showing how much money the defendant made by unlawfully using copyrighted material. The Copyright Act also provides for statutory damages, which means that a plaintiff can recover a specified amount in damages even if they don't have evidence of actual damages.
Generally, the law allows these statutory damages to be higher in cases of willful infringement -- that is, cases in which a defendant had actual knowledge that what they were doing was copyright infringement, or acted with reckless disregard for whether what they were doing constituted copyright infringement.
Unintentional or "innocent" infringement can carry a penalty of $200 per work infringed. Willful infringement can carry a penalty of up to $150,000 per work infringed.]]>On Behalf of Codispoti & Associates, P.C.https://www.codispotilaw.com/?p=617812023-12-07T04:48:25Z2023-12-12T20:37:05ZBenefits of an LLC
For those seeking to start a Limited Liability Company or LLC in New York, it is important to understand the process, what documents need to be drafted and filed and whether there are any annual obligations.
An LLC is often ideal for owners, as it limits the personal liabilities the member could face with regards to the liabilities of the business. An LLC is essentially a hybrid, as it combines corporation-style limited liability with the flexibility of a partnership. In other words, it allows for a flexible management structure in order to shape the LLC to meet the needs of the business while also protecting the members from personal liability for the business’s debts.
Forming an LLC
In order to form an LLC, the owners must file Articles of Organization. These must be completed and filed in accordance with Section 203 of the New York State Limited Liability Company Law.
There are other considerations that need to be addressed during formation. For instance, the name of the LLC. Not only does the name need to be available, it must also include LLC in the name. In order to complete the filing, the Articles of Organization should be filed with the filing fee of $200.
It should eb noted that the members of an LLC are required to adopt a written Operating Agreement and must be entered into within 90 days after filing the Articles of Organization. There are also requirements of publishing the formation and filing statements, so it is imperative to understand these requirements.
Forming an LLC is an exciting time, butit is also a time to take careful consideration of your business needs.
]]>On Behalf of Codispoti & Associates, P.C.https://www.codispotilaw.com/?p=617802023-11-28T03:52:24Z2023-12-01T16:44:23Zprotect your intellectual property does not prevent any issues from occurring or other individuals or companies from unauthorized use of your intellectual property. As such, you may need to take legal measures to protect your rights and stop this unauthorized use.
Securing your intellectual property rights
At Codispoti & Associates, P.C., our legal team knows firsthand the importance of timely securing intellectual property rights. With new technology and ideas constantly evolving and entering the market, it is important to not wait to take protective action. Therefore, our attorneys use their extensive experience and knowledge to help individuals and business to ensure your copyright and trademark interests are timely protected.
Whether you created a copyright for creative work or a trademark for a design, registering your copyright or trademark does not mean others will not attempt to use your protected ideas. However, if this discovery is made, there are enforcement actions you could take.
Protecting your intellectual property
Much like individuals could trespass on your real property, individuals and businesses could essentially trespass on your intellectual property. Whether it was intentional or not, this illegal use of your intellectual property could significantly impact you. As such, it is important to understand your options when it comes to putting a halt to this and securing any damages caused by this unauthorized use.
These actions could include trademark enforcement, cease and desist letters, infringement litigation and the like. Additionally, there could be issues with a licensing agreement, giving rise to a legal dispute concerning fees, royalties or a violation of the rights outlined by the agreement.
Whether you seek to create protections for your intellectual property, negotiate a deal concerning the use of your intellectual property or seek to litigate an infringement of your rights, it is important to fully understand your options in your situation. A legal professional can help outline your rights and determine the courses of action available to you.]]>On Behalf of Codispoti & Associates, P.C.https://www.codispotilaw.com/?p=617792023-11-15T05:29:12Z2023-11-20T05:28:49ZDeposition basics
What, exactly, is a “deposition”? In short, it is just one tool in the overall discovery process, and it involves one side asking questions to a potential witness on the other side in an out-of-court, face-to-face information gathering effort. No two depositions are the same, of course, but there are commonalities to the process.
For example, depositions usually do not involve the court. They occur between the parties, typically at a mutually arranged location that is convenient for both parties. The office of one of the attorneys, for example, will be a common location for a deposition. A court reporter is present to record the deposition and, afterward, type up a record of the interaction. Also—and this is important—the person who is being asked the questions, known as the “deponent,” is under oath when answering questions, just like testifying in court.
While a deposition is typically more informal than courtroom testimony, the fact remains that what is said by the deponent can become a crucial part of the case for the other side. Sometimes, depositions can seem like “fishing expeditions”—with one side or the other casting about for previously unknown information. However, while they can seem tedious and inconvenient, depositions are likely to be a part of most business litigation cases.]]>