Affordable Care Act Seminar: What Employers Need to Know

Posted by Handshake 2.0 at 10:02 AM on February 18, 2013:

From LeClairRyan:

The Patient Protection and Affordable Care Act is the single largest piece of legislation in a generation with huge implications for employers.  Included within the act are myriad rules, formulas and regulations that apply to many employers.  Employers need to ask themselves:

  • First, does the Act apply to my business?
  • Second, if it does, what new rules and regulation does the Act impose on my business? 
  • Third, when and how can my business comply with the Act's new rules and regulations?

To help employers answer these questions, Jim Cowan and Brian Wheeler, attorneys with LeClairRyan, will present a seminar with Montgomery County, Virginia Department of Economic Development on the Affordable Care Act.

The Affordable Care Act Seminar: What Employers Need to Know
Thursday, February 21, 2013
9:00 AM - 11:00 AM
Montgomery County Government Center
755 Roanoke Street
Christiansburg, Virginia
Directions

We would like to invite you, or a representative from your company, to attend this free seminar. 

Please register online here.

Read more from LeClairRyan on Handshake 2.0.

LeClairRyan specializes in high-tech corporate law.LeClairRyan is an entrepreneurial law firm with offices from Virginia to New York to California, providing business counsel and client representation in matters of corporate law and high-stakes litigation. The Blacksburg, Virginia-based office of LeClairRyan offers venture capital, angel investor funding, and intellectual property law services for startups, entrepreneurs, and technology-based companies.  It also offers Outside General Counsel services covering the full gamut of clients' corporate, employment and business litigation needs. For more information, please contact Jim Cowan or Mike Drzal at 540-961-2600.

LeClairRyan is a client of Handshake Media, Incorporated, the parent company of Handshake 2.0.

Barriers to Entry: Why We Win and the Competition Loses

Posted by Handshake 2.0 at 10:37 AM on November 7, 2012:

From Mike Drzal, partner with LeClairRyan:

One of the standard components investors expect to see among the fundamental tools in the fundraising toolbox - an executive summary, business plan and slide deck - is "barriers to entry." Some entrepreneurs are confused by this item and think that it refers to the barriers they face in advancing their company or moving a product into the marketplace. 

What are your competitors' barriers to entry?Actually, what investors are looking for is some barrier to entry that makes it more likely than not that the entrepreneur’s company beats the competition either by getting out into the market first or being able to keep the competition from entering afterward.  When you think about it, this makes sense because investors don’t want to put money into a company that gets left at the starting line by a competitor that is bigger and better financed. 

What constitutes a barrier to entry?  It can be one of a number of things.  Patented or otherwise protectable intellectual property can thwart a competitor by denying them access to the best embodiment of an innovation.  Proprietary know-how or trade secrets can work just as well as patented or copyrighted intellectual property.  A significant lead in development is another potential barrier to entry. For example, if your IT company has an 18-month lead on the competition in writing code, it means your company can launch and begin to grab up market share before the competition can react.  Locking up key channels of distribution with exclusive contracts works as well - if the competition is denied the most efficient pathway to the market, that gives you the opportunity to become the market leader. 

These are just a few of the potential barriers to entry that will excite an investor. What matters is that you have a credible barrier to entry to beat the competition that you can articulate in a convincing way during your pitch. 

Read more from LeClairRyan on Handshake 2.0.

LeClairRyan specializes in high-tech corporate law.LeClairRyan is an entrepreneurial law firm with offices from Virginia to New York to California, providing business counsel and client representation in matters of corporate law and high-stakes litigation. The Blacksburg, Virginia-based office of LeClairRyan offers venture capital, angel investor funding, and intellectual property law services for startups, entrepreneurs, and technology-based companies.  It also offers Outside General Counsel services covering the full gamut of clients' corporate, employment and business litigation needs. For more information, please contact Jim Cowan or Mike Drzal at 540-961-2600.

LeClairRyan is a client of Handshake Media, Incorporated, the parent company of Handshake 2.0.

Important Legal Implications of Mobile Health Technology

Posted by Handshake 2.0 at 11:58 AM on October 25, 2012:

From Brian S. Wheeler, attorney with LeClairRyan:

While the benefits of paperless medical records are clear - including the ability for a clinician to access a patient’s health information virtually anywhere at anytime on a mobile device - the use of mobile devices to create, store and access health information does create legal issues.  One of the most important is security and privacy issues related to the use of mobile health technology.  This is especially true as the theft of mobile devices such as smartphones and tablet computers continues to rise. 

What are legal implications of mobile health technology?Indeed, it is so important that Lydia Washington, a director of practice management at the American Health Information Management Association (AHIMA) writes for the Journal of AHMIA, “[i]n addition to privacy and security policies, healthcare organizations...need to have policies that outline the conditions and acceptable uses of mobile devices that capture and store clinical information since that information becomes part of the health record.”

All healthcare providers who are using mobile technology to create, store and access health information should have a policy in place to address the proper and safe use of those mobile devices.  Countless health care providers have been sued when laptops and desktops containing patient medical records have been stolen from their offices.  The same holds true for mobile devices.  Policies and procedures to prevent the theft of mobile devices containing a patient’s health information as well as securing the information from being accessed in the event of theft are critical to avoiding costly and expensive litigation.     

Moreover, having a mobile technology policy in place will allow for effective and efficient e-discovery and litigation holds which could result in substantial savings to health care providers in the event of litigation.  Health care providers who are considering adopting mobile health technologies should first consult with an attorney to make sure that proper policies and procedures are in place to protect a patient’s medical records.

For more information, contact Brian Wheeler at 540-443-3308.

Read more from LeClairRyan on Handshake 2.0.

LeClairRyan specialized in high-tech corporate law.LeClairRyan is an entrepreneurial law firm with offices from Virginia to New York to California, providing business counsel and client representation in matters of corporate law and high-stakes litigation. The Blacksburg, Virginia-based office of LeClairRyan offers venture capital, angel investor funding, and intellectual property law services for startups, entrepreneurs, and technology-based companies.  It also offers Outside General Counsel services covering the full gamut of clients' corporate, employment and business litigation needs. For more information, please contact Jim Cowan or Mike Drzal at 540-961-2600.

LeClairRyan is a client of Handshake Media, Incorporated, the parent company of Handshake 2.0.

JOBS Act Update

Posted by Handshake 2.0 at 6:41 AM on October 9, 2012:

From Mike Drzal, partner with law firm LeClairRyan:

As with so many things in life, the devil has proven to be in the details of implementing the provisions of the Jumpstart Our Business Startups Act, the JOBS Act, directed at enhancing capital access for small businesses, i.e., crowdfunding and relief of the general solicitation rules for securities offerings.

For entrepreneurs raising money, business as usual.Concerns about potential fraud perpetrated against crowdfunding investors have complicated attempts to write implementing regulations to the point that those regulations are now delayed until at least September 2013. Entrepreneurs expecting to use crowdfunding (see 7 Cautions for Considering Crowdfunding) for their seed financing should plan accordingly.

Much of the concern has focused on the perceived lack of sophistication in crowdfunding investors. Because of this, regulators are under pressure to shift the burden of performing due diligence on target companies to crowdfunding intermediaries. Intermediaries are naturally concerned about potential liability associated with due diligence requirements and are pushing regulators to provide safe harbors, creating a tug-of-war in the rulemaking process.

As for the implementation of regulations to provide for general solicitation (e.g., ads, blast email and website notices) in connection with securities offerings, the solution to fraud concerns seemed simple enough - restrict sales to “accredited investors,” as defined in the securities regulations. Accredited investors, loosely defined as those having a net worth in excess of $1,000,000 or meeting certain annual income tests, are assumed to be sophisticated enough to assess risks and bear possible investment losses. Simple enough, right? Not so fast. In this case fraud concerns have led to proposed investor verification requirements so onerous that general solicitation may prove impractical.

The battle between those seeking to improve capital access will be fought out over the coming months. In the meantime, it is business as usual for entrepreneurs raising money, as neither crowdfunding nor general solicitation are available as of the date of this post.

You can contact Mike Drzal at 540-961-2600.

Read more from LeClairRyan on Handshake 2.0.

LeClairRyan specializes in high-tech corporate law.LeClairRyan is an entrepreneurial law firm with offices from Virginia to New York to California, providing business counsel and client representation in matters of corporate law and high-stakes litigation. The Blacksburg, Virginia-based office of LeClairRyan offers venture capital, angel investor funding, and intellectual property law services for startups, entrepreneurs, and technology-based companies.  It also offers Outside General Counsel services covering the full gamut of clients' corporate, employment and business litigation needs. For more information, please contact Jim Cowan or Mike Drzal at 540-961-2600.

LeClairRyan is a client of Handshake Media, Incorporated, the parent company of Handshake 2.0.

CIT GAP 50 Entrepreneur Awards Finalists Announced

Posted by Handshake 2.0 at 9:27 AM on October 2, 2012:

Nominations closed on September 20, 2012 for The Center for Innovation Technology(CIT)'s GAP 50 Entrepreneur Awards, a state-wide program designed to identify, celebrate and honor Virginia's innovative entrepreneurs creating high-growth companies in the areas of life sciences, technology and energy.  Finalists for the Awards were required to receive 3 or more nominations to qualify.  According to Jen O'Daniel, Senior Associate with CIT GAP Funds, 269 entrepreneurs were nominated.

Mike Drzal, partner with law firm LeClairRyan, served as a GAP 50 Ambassador for the Blacksburg and Roanoke, Virginia areas.  Commenting on the 39 46 finalists from the region, Mike Drzal said:

"The GAP 50 nominees from the Roanoke-Blacksburg region are comprised of an eclectic mix of seasoned and up-and-coming entrepreneurs from a variety of technology and life sciences verticals.  I am especially pleased to see female entrepreneurs moving to the forefront, a development that bodes well for the future of our region."

CIT GAP 50 Entrepreneur AwardsView the Roanoke-Blacksburg, Virginia GAP 50 Entrepreneur Award Finalists.

View, region by region, the GAP 50 Entrepreneur Award Finalists.

Final GAP 50 Entrepreneur Awards recipients will be determined through a peer voting process via electronic ballot sent to finalists. The winning GAP 50 Entrepreneurs will be honored at an awards banquet on Thursday, October 18, 2012 in McLean, Virginia.

LeClairRyan specialized in high-tech corporate law.LeClairRyan is an entrepreneurial law firm with offices from Virginia to New York to California, providing business counsel and client representation in matters of corporate law and high-stakes litigation. The Blacksburg, Virginia-based office of LeClairRyan offers venture capital, angel investor funding, and intellectual property law services for startups, entrepreneurs, and technology-based companies.  It also offers Outside General Counsel services covering the full gamut of clients' corporate, employment and business litigation needs. For more information, please contact Jim Cowan or Mike Drzal at 540-961-2600.

LeClairRyan is a client of Handshake Media, Incorporated, the parent company of Handshake 2.0.

Are Non-Compete Agreements Dead?

Posted by Handshake 2.0 at 6:00 AM on September 13, 2012:

From Brian S. Wheeler, attorney with LeClairRyan:

When hiring employees, especially critical employees who have access to customers, confidential information and trade secrets, companies often try to protect themselves from unwanted competition by requiring the new employee to enter into an employment agreement containing a covenant not to compete or non-competition agreement. Because covenants not to compete may have a real world impact upon an individual’s ability to earn a livelihood, Virginia courts have become less and less inclined to enforce them. 

Brian S. WheelerAre covenants not to compete dead in Virginia?  The short answer is no, BUT such covenants will be narrowly construed to ensure that they are protecting an employer’s legitimate business interests. 

The question asked will be this:  Is the covenant not to compete reasonable in its scope? 

When determining whether a covenant not to compete is reasonable in scope, courts generally consider: 1) the function and scope of the restriction in light of the employer’s legitimate business interests, 2) geographic scope, and 3) duration.     

A covenant not to compete is much more likely to be enforced if it only prohibits an employee from working in the same or similar capacity in which she worked for her previous employer.  This is especially true if the covenant not to compete is necessary to prevent an employee from taking a position where she can use the customer, pricing, trade secrets or other confidential or proprietary information of her former employer to the benefit of her current employer.

Likewise, when looking at the geographic and durational scope of the covenant not to compete, these must be no greater than necessary to protect the legitimate business interests of the employer.  
 
Finally, provisions in employment agreements which restrict a former employee’s ability to solicit the customers and prospective customers or the employees of the employer are more likely to be enforced.  While the law regarding covenants not to compete is changing to favor the employee, such covenants may still be enforced if it protects the legitimate business interests of the employer.  The key is not to be greedy.           

Given recent court rulings, emloyers are encouraged to contact their attorney to update any  existing  covenants not to compete currently in place  and to ensure that any additional covenants will be enforceable under current law.

For more information, contact Brian Wheeler at 540-443-3308.

Read more from LeClairRyan on Handshake 2.0.

. . . . .

Mike Drzal, partner with law firm LeClairRyan, is a GAP 50 Regional Ambassador for the GAP 50 Entrepreneur Awards, a program designed to identify and celebrate Virginia's next generation of entrepreneurs in the areas of life sciences, technology and energy.  Nominate Virginia entrepreneurs here through September 20, 2012.

LeClairRyan specialized in high-tech corporate law.LeClairRyan is an entrepreneurial law firm with offices from Virginia to New York to California, providing business counsel and client representation in matters of corporate law and high-stakes litigation. The Blacksburg, Virginia-based office of LeClairRyan offers venture capital, angel investor funding, and intellectual property law services for startups, entrepreneurs, and technology-based companies.  It also offers Outside General Counsel services covering the full gamut of clients' corporate, employment and business litigation needs. For more information, please contact Jim Cowan or Mike Drzal at 540-961-2600.

LeClairRyan is a client of Handshake Media, Incorporated, the parent company of Handshake 2.0.

Nominate Your Local Virginia Entrepreneur for GAP 50 Entrepreneur Awards

Posted by Handshake 2.0 at 9:48 AM on August 3, 2012:

The Center for Innovation Technology, CIT has launched the GAP 50 Entrepreneur Awards, a statewide program designed to identify, celebrate and honor Virginia's innovative entrepreneurs creating high-growth companies in the areas of life sciences, technology and energy.

Mike Drzal, partner with law firm LeClairRyan, Jim Flowers, executive director of VT KnowledgeWorks, and Derick Maggard, executive director of the Roanoke - Blacksburg Technology Council have been selected from the Blacksburg and Roanoke, Virginia areas to serve as GAP 50 Ambassadors.  The complete list of Ambassadors is here.

Nominate Virginia entrepreneurs for the CIT GAP 50 Entrepreneur AwardsGAP 50 Ambassadors invite you to nominate Virginia life sciences, technology and energy entrepreneurs for the GAP 50 Entrepreneur Awards!

To qualify for the peer voting round, each entrepreneur must be nominated by 3 people.

The information required to nominate each entrepreneur is straightforward:  Name, Title, Company/Organization, Email, Phone.

Final GAP 50 Entrepreneur Awards recipients will be determined through a peer voting process via electronic ballot sent to nominees. The winning GAP 50 Entrepreneurs will be honored at an awards banquet on Thursday, October 18, 2012 in McLean, Virginia.

Nominate Virginia entrepreneurs here through September 20, 2012.

More about the GAP 50 Entrepreneur Awards

Entrepreneurs with 3 or more nominations are being listed on CIT's Facebook page and in Twitter updates.

Sponsored by LeClairRyan specialized in high-tech corporate law.LeClairRyan, an entrepreneurial law firm with offices from Virginia to New York to California, providing business counsel and client representation in matters of corporate law and high-stakes litigation. The Blacksburg, Virginia-based office of LeClairRyan offers venture capital, angel investor funding, and intellectual property law services for startups, entrepreneurs, and technology-based companies.  It also offers Outside General Counsel services covering the full gamut of clients' corporate, employment and business litigation needs. For more information, please contact Jim Cowan or Mike Drzal at 540-961-2600.

LeClairRyan and VT KnowledgeWorks are clients of Handshake Media, Incorporated, the parent company of Handshake 2.0.

Branding Right from the Start

Posted by Handshake 2.0 at 5:21 AM on July 9, 2012:

From Rebecca Conner, LeClairRyan:

Choosing a company or product name can be difficult and time-consuming for a start-up.  That said, if the branding process is done correctly, it can save the company substantial time and money in the long-run.

To avoid costly errors, start-ups should conduct trademark searchesMost importantly, new branding campaigns should be researched extensively to determine whether similar marks are being used in commerce by third parties.  It is important to search filings made with the United States Patent and Trademark Office (USPTO) for trademark registrations. Searches of unregistered uses (also known as common law uses) of similar marks in commerce must also be conducted through online searches and other means.

Many companies use trademarks without having registered the marks, so it is important to look for such unregistered uses prior to committing to a new branding campaign.  It is a good idea to order and review commercial search reports, which will provide critical information related to potentially conflicting brands based on a number of proprietary databases, including the USPTO filings and unregistered, common law uses. 

As the market place becomes more and more crowded, branding campaigns are subject to significant risk if an inadequate search is performed.  Responding to cease and desist letters is expensive and time-consuming, and being forced to rebrand is embarrassing, and even more costly. Imagine the time and expense associated with taking down a website and rebranding your entire product line. 

The other key element in selecting a new branding campaign is to choose a brand name that is not descriptive of the products or services offered under the brand.  Brands that are descriptive are difficult to register with the USPTO and even more difficult to enforce in the market place, even with a trademark registration.  For example, it would be difficult to enforce the trademark “American Journal of Bicycles” because this is descriptive of the journal.  Arbitrary and fanciful names (e.g. Twitter) are more enforceable than descriptive ones (e.g. Facebook).  It is difficult to convince infringing third parties to rebrand if the brand is descriptive.  This is especially important in the mobile application space, as stores like iTunes are filled with applications that are branded with descriptive marks. 

A branding process conducted before the launch of a company or product that includes extensive research, and results in unique rather than descriptive names, can result in distinctive brands with enforceable trademarks.

. . . . . . . . .

For more information on LeClairRyan's Intellectual Property practice, including patents, trade secrets, trademarks, copyrights, and rights in software, please contact Rebecca Conner.

Read more from LeClairRyan on Handshake 2.0.

LeClairRyan specialized in high-tech corporate law.LeClairRyan is a law firm with deep entrepreneurial roots, having originally been founded as a venture capital boutique. With more than 350 attorneys and offices from Virginia to New York to California, the firm provides business counsel and client representation in matters of corporate law and high-stakes litigation. Its mission is to achieve excellence for its clients by providing integrated, responsive and timely services.

LeClairRyan is a client of Handshake Media, Incorporated, the parent company of Handshake 2.0.

A Start-up Considers Outside General Counsel Legal Services

Posted by Handshake 2.0 at 7:30 AM on May 23, 2012:

As a start-up company founder, I have used what is termed “one-off” legal services.  My legal needs have been for one-time events, like incorporation or filing a trademark, and I have worked with individual attorneys from several law firms. 

Outside general counsel offers a team of attorneysOne-off is at one end of the spectrum of corporate legal services.  In-house general counsel is at the other.  An in-house counselor is an individual attorney a company would employ full-time to handle its corporate legal affairs.  In my locale, full-time, in-house counsel would run my company about $150K per year. 

My company’s revenues currently cover one-off legal services and I look forward to the day when an in-house attorney can join our corporate team.  In the meantime, I have gotten excellent legal advice from several attorneys over the four years of my company’s history.  I understand the one-off business model, however.  My onesy-twosy needs do, and should, put me in the queue behind those of higher-paying clients.  As a start-up founder, everything seems urgent to me, but I truly have not had an urgent legal need.  My turn comes and my phone calls and emails are returned. 

As my company grows, however, particularly when I begin to have several dozen employees (what start-up is thinking about ERISA compliance?) I will need instant access to an attorney.  A one-off relationship won’t be fast enough and I won’t be able to afford in-house counsel.  What's a growing company to do?

I first learned of “outside general counsel” from Brian Wheeler when he joined LeClairRyan, a client of Handshake Media.  For a monthly retainer fee - for example, $5K per month or $60K per year, - a company can have the equivalent of in-house advice from a law firm’s team of attorneys.  If I were an outside general counsel client of LeClairRyan, Brian Wheeler might be my go-to attorney.  If I had a question, he would advise me, or consult with the experts in his firm to advise me, or put me directly in touch with them. 

The benefits of outside general counsel seem myriad to me:  access to expertise from individuals and from a team with fixed costs for legal fees.  What is most appealing, however, will require a confession:  because I am a one-off legal services client, I hesitate before I contact an attorney, knowing the impact that hourly rate will have on my start-up’s budget.  When I have an established company's revenue, if I were an outside general counsel client, my retainer would have already “paid” for help.  If an issue arose that seemed like it might be a problem, I would readily contact my attorney before it became one.

. . . . . . . . .

Sponsored by LeClairRyan specialized in high-tech corporate law.LeClairRyan, a law firm with deep entrepreneurial roots, having originally been founded as a venture capital boutique. With more than 350 attorneys and offices from Virginia to New York to California, the firm provides business counsel and client representation in matters of corporate law and high-stakes litigation. Its mission is to achieve excellence for its clients by providing integrated, responsive and timely services.

For information about LeClairRyan's Outside General Counsel Program, please contact Jim CowanDavid Perry, or Brian Wheeler.

LeClairRyan is a client of Handshake Media, Incorporated, the parent company of Handshake 2.0.

The Executive Summary

Posted by Handshake 2.0 at 6:00 AM on May 2, 2012:

From Mike Drzal, LeClairRyan:

For entrepreneurs beginning to seek outside investment, I identified the Executive Summary, the Business Plan, and the Slide Deck as Three Fundamental Tools in the Fundraising Tool Box.

The executive summary is a door opener, a 2-to-3 page way of seeking an invitation to enter into a wider discussion of your company or product.

Executive Summary - One of Three Fundamental Tools in the Fundraising Tool BoxTypical content for an executive summary includes:

  • The company
  • The problem/opportunity
  • Large market size
  • Competition position and barriers to entry by competitors
  • Go to market strategy
  • The team
  • Financing requirements
  • Exit strategy

Always include the founder's contact information and a securities disclaimer.

Mike Drzal is a shareholder at LeClairRyan and serves as chair of the firm’s Venture Capital practice. 

Read more from Mike Drzal and from LeClairRyan on Handshake 2.0.

LeClairRyan specialized in high-tech corporate law.LeClairRyan is a law firm that has deep entrepreneurial roots, having originally been founded as a venture capital boutique. With more than 350 attorneys and offices from Virginia to New York to California, the firm provides business counsel and client representation in matters of corporate law and high-stakes litigation. Its mission is to achieve excellence for its clients by providing integrated, responsive and timely services.

LeClairRyan is a client of Handshake Media, Incorporated, the parent company of Handshake 2.0.