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Marijo McCarthy Articles

Written by: Marijo McCarthy

What's An Opinion, Anyway? - Click To Read Article
A client called me recently with what she said might sound like an odd request. "I need your 'opinion,'" she said, "and it has to be in writing. Can you do that? And what does that mean, anyway?" After reassuring her that it was not an odd request and that not only could I do it, I would, I gave her an explanation...

Confidentiality Agreements... Ticking Time Bombs? - Click To Read Article
How many times have you signed a new contract which included "confidentiality" or "non-disclosure" provisions and simply assumed that it was not a big deal? After all, you're a business owner with honor and integrity; you have no intention of disclosing your client's confidential and proprietary information, right? So, why worry about it? Simply sign the thing and move on to the work. Well, not so fast. Let's delve into the small print a bit and see what you just agreed to...

Are You Ready for New Business? - Click To Read Article
Despite the gloom and doom which seems to surround us these days like a miasma that won't lift, small business owners are seeing their hard work and nose-to-the-grindstone efforts pay off in incremental new business.

Time is of the Essence - Click To Read Article
For those of us who spend great chunks of our days reviewing and commenting on contracts, there are stock words or phrases that mean a lot to us - but very little, if anything, to our clients. Some of those words or phrases are absolutely essential; others have lost their impact over time. One of the latter is the phrase: "time is of the essence," which Black's Law Dictionary defines as, "performance by one party at [a] time or within [a] period specified in [the] contract is essential to enable him to require performance by [the] other party."

The Four R's of Contract Review - Click To Read Article
Recently, a client asked me about the process of reviewing a contract. What's involved? What does a lawyer do first when a client drops a contract on her desktop? How long does it take and why?

4 Questions to Ask Before You Get Hitched in a Business - Click To Read Article
At the beginning of 2011, I challenged you to consider the "end game" regarding your business - the point in every business' life when the owners have a decision to make. To stay or not to stay... to expand or not to expand... to sell or not to sell. In other words, which direction to take.

Let's face it... employee wages are sacrosanct - Click To Read Article
The sooner Massachusetts small business owners accept this, the sooner they can stop having skirmishes and "misunderstandings" with the Attorney General's office that only result in frustration, penalties and ill will on all sides.

Myths and Mysteries: I Thought I Couldn't be Sued Personally if I Formed a Corporation - Click To Read Article
One of the results of last month's newsletter regarding the Massachusetts Homestead law (in addition to several clients finally filing for full homestead protection), was this common question: "Why should I worry about personal liability for business obligations… I formed a corporation?"

What's the End Game for Small Business Owners? - Click To Read Article
I have had the pleasure of working with several new clients over the past few months, all of which are in very different businesses and at very different stages in their growth. They range from 12 months old to 10 years old, and yet they all have one thing in common: They are all focused on today. Maybe next week, maybe next month, but definitely not five or 10 or 20 years out. And yet, that's where I need to keep them focused, until they agree on how to position themselves for the end game.

Customer Supplied Agreements... Two Suggested Changes Before Signing - Click To Read Article
The holiday season invariably finds my clients pushing aggressively to turn sales into contracts and lock those contracts down by the end of the year. It's understandable… we all want to begin the new year strong, with lots of contracts in the pipeline. The rush to sign at year end, however, can have dire consequences, particularly for those accustomed to using their own standard form of services contract rather than signing a customer's form of agreement.

Protect Your Company by Keeping Your Employees in the Loop - Click To Read Article
Each week, I receive requests from clients who ask me to review and comment on a variety of confidentiality, non-disclosure agreements [often referred to as "NDAs"]. These have become part of the fabric of getting a deal done... and they carry serious financial consequences if they are violated.

Are You in Compliance? - Click To Read Article
It sometimes seems as though we spend way too many non-productive work day hours, protecting ourselves from new government rules and regulations. As frustrating as this may be, I encourage you to comply with government "do and don't" directives. And, as with most distasteful tasks, I suggest you tackle these directives in bite-sized pieces.

Are You Ready for Data Security Compliance Language? - Click To Read Article
While spending much of the summer reviewing and renewing contracts for my clients, I started to see contract clauses being regularly inserted to protect the other party from exposure to violations of data security and privacy laws and regulations. Given the stiff enforcement penalties and, even worse, the bad publicity which can result when a company has a data security breach, it's no surprise that many businesses are beginning to update their contracts to comply with these new state and federal rules.

So You Thought Non-Compete Agreements Were Safe? Think again. - Click To Read Article
Have you ever had a departing employee set up shop next door (literally or figuratively) and compete with you? It's a frustrating experience, and one which leads many small business owners to overreact by imposing non-compete agreements on all employees from that day forward. If this is you, take heed. If the Massachusetts Legislature has its way, that option won't be open to you for much longer.

To Pay or Not To Pay... That is the Question - Click To Read Article
It must sometimes seem as though government bureaucracy and regulation exist simply to torture the hard-working small business owner. Many of my clients find themselves with an interest in bringing on a summer intern or two, paid or unpaid, and are faced with even more "dos and don'ts" from the state and Federal government! What's a struggling small business to do?

No One Should Be Indispensable... So Plan For the Unexpected - Click To Read Article
Recently, a client called me in somewhat of a panic mode. It seems that a key designer in their engineering firm had arrived that morning, sat down across the desk from her boss, and tendered her resignation... effective immediately! Could they prevent the departure? Should they sue? What else could they do?

Employee vs. Independent Contractor: Ignore This at Your Peril! - Click To Read Article
It's been almost two years since I wrote to warn you about the perils of hiring "independent contractors" under the 2004 amendments to the Massachusetts law. Since then, the status has not improved and litigation has begun to shape its future. Let's review the current rules in Massachusetts.

Boilerplate in Contracts ... a Dangerous Thing to Ignore - Click To Read Article
Recently, one of my clients called me in a panic because his company had been sued ... in Texas, no less! He wanted to know why and how and what to do about it. As it turns out, he entered into a contract with a vendor two years ago, never had the contract reviewed by counsel (since it was "just a few pages of boilerplate"), and now, sadly, has to spend time and money trying to protect his rights in a state to which he has never even traveled!

Is There a 'Legal' Way to Get Out of a Contract? - Click To Read Article
The short answer is "Yes" -- a well-drafted contract protects the parties from a variety of situations where it is advisable for one or both parties to end the relationship [lack of payment for services rendered being the most obvious]. Of course, the "right" answer to this question often depends on which side of the table you find yourself!

What's in a Name? - Click To Read Article
The "name game" caught up with a colleague recently and she has been venting to all of us ever since. She has been doing business as a sole proprietor for almost 10 years [knowing that makes me shudder; I have operated as a professional corporation since inception] and, given the nature of her consulting practice, has never been overly concerned about liability. We all have varying levels of risk tolerance and hers is quite high.

Three Ways an Applicant's Non-Compete Agreement Can Stop You Cold - Click To Read Article
There is some good news as we enter the first year of a new decade: some employers are cautiously beginning to add new employees as business begins a torturously slow climb back. But there is some not-so-good news as well: Many smart, qualified, potential employees are still subject to non-compete agreements with former employers.

Handle With Care: Employee Personnel Records! - Click To Read Article
When a client begins a conversation with the words, "So I got a letter from the Attorney General's office," it is rarely cause for celebration. Knowing, however, that clients prefer calm responses and reassuring attitudes and, in all fairness, that even this unhappy circumstance may very well be addressed without litigation and penalties, I do my best to remain unruffled.

Getting to 'Yes' When Negotiating a Lease Renewal - Click To Read Article
A client called me recently with a dilemma. She has operated a successful retail business in the same location for 16 years. She believes that the location is important for her business and has contributed to her success. However, her new landlord had presented her with a new lease. The lease required annual rent increases - increases which my client knew would immediately hinder the business' financial health, and at a time when she could least afford it. She didn't think her new landlord was open to what she needed to accomplish, so she called me.

Be Clear and Concise When You Hire - Click To Read Article
A client called me recently to tell me his company was growing and that he needed to re-hire some employees he had laid off at the beginning of 2009. Given his current growth and the possibility of additional expansion in 2010, he thought it was time to brush off the company's hiring letter and discuss the use of a non-disclosure agreement for key employees.

Zeroing In On Bad Economy Business Basics - Click To Read Article
A client called me recently to discuss a new venture. Before he could start, however, he had to vent for almost five minutes: About the state of Wall Street; about the problems with the government bailout intervention (or "interference," as he put it); and about the poor health of the economy in general.

Why NonCompete Means Dont Lie Cheat or Steal - Click To Read Article
Scott Kirsner's December 30, 2007 column in the business pages of the Boston Globe caught my eye that morning. His premise... "Why non-compete means 'don't thrive'"... caused me to revisit a favorite client topic... non-compete agreements. They are the subject of more questions, comments and complaints among my small business clients than almost any other, and for a good reason.

There's a New Sheriff in Town... and She's Taking No Prisoners! - Click To Read Article
With an effective date of July 13, 2008, the Massachusetts Legislature last month passed a rigid new law, the effect of which will automatically triple the damages, plus add court costs and attorney fees, for employees who win payment of wage disputes against their employers.

There Are Deals To Be Done in 2009 - Click To Read Article
A client called me last week, right in the midst of the doom and gloom with which we ended the year, and asked if I could review a purchase and sale agreement for a commercial building. Wonderful, I thought... not only is there a Santa Claus, there are transactions being done in spite of all odds!

The Smart Alternative to Layoffs - Click To Read Article
The slowing economy has sent many of my clients back to the drawing board to take a sharp pencil to next year's budget. Small businesses run lean and mean most of the time, so there aren't many significant line items available for reduction… until you get to payroll.

Stand Up For Your (Contract) Rights - Click To Read Article
Recently, a client called for some advice on several "boilerplate" contracts for services and equipment he was contemplating acquiring. He told me he had been prompted to call by reading one of my prior newsletters on the subject (now here is someone well worth writing for!).

Protect Yourself by Knowing Your Customers' Credit - Click To Read Article
Sad to say, I spend a fair amount of time these days trying to help clients get paid. (Of course, my strongest tool is a solid relationship with a smart collection lawyer!) There is nothing more frustrating to a small business owner who provides superior services than having to pursue the deadbeat customer who refuses to pay when the bill comes due.

Protect Your Business with a Written Contract - Click To Read Article
The majority of clients for whom I act as general counsel have ploughed their way through a variety of contracts in their 20 or 30 years of running a business. They know full well the value provided and protection afforded by a written document in which responsibilities on both sides are detailed and agreed upon.

Plan Early for a Successful Partnership - Click To Read Article
Forming a company with a few colleagues these days may make all the sense in the world. And combining skills, assets and business development efforts may very well be a smart move. But, what happens when the bank asks for a personal guarantee of the company owners and one of them declines? Where do you go from there?

Not Every Employer or Employee Needs a Non-Compete! - Click To Read Article
It is truly rewarding to write an article which foments discussion... and it doesn't matter whether we agree or disagree, simply that we talk about something which might be important to your business. However, the end result of a non-compete discussion should not necessarily be to foist one of these agreements on every employee. Rather, it should prompt you to think through which of your long-time key employees (or new hires) are in a position to harm your business if they leave tomorrow and join or open a competing company.

On Your Six, Boss! - Click To Read Article
The relationship between employer and employee in small businesses is often a very personal one. There is more camaraderie, more trust and more interaction than one typically finds in a large company. Small business employers know the stories behind their employees and see them as people with families, mortgages, college tuitions, etc.

Leadership: Now More than Ever! - Click To Read Article
Winston Churchill is a hero of mine. Partly, I think, because he wasn't perfect. He was neither an obvious hero nor someone acknowledged early on to be the leader that he eventually became. He just put his head down, plowed through and never gave up. He was honest and hard-working, pragmatic and passionate. Sound like any small business owners you know?

If You're In Trouble, Reach Out for Help... Now! - Click To Read Article
Last week, I got a call from a client asking me to help a friend, the owner of a small manufacturing company. "What's a Forbearance Agreement?", she inquired. Gulp! "Tell me more," I suggested, knowing full well that a few months of trouble had certainly preceded her friend's question.

How to Begin and When Necessary Amicably End a Business Relationship - Click To Read Article
As a small business corporate lawyer, I see value in ending business relationships as amicably as they began, sometimes with compromise and always with the application of a pragmatic approach. The value of an amicable end can be measured in time, money and an on-going network of professional relationships.

Handling Your Most Important Asset - Click To Read Article
When the economy is slow, it's natural to think of all line items that cost your company money as liabilities. Unfortunately, that negates the value of one very large item in your budget which just may be your biggest asset: your employees. The question, therefore, is how best to manage that precious asset during uncertain and stressful times.

Employee or Independent Contractor?... That is the Question! - Click To Read Article
Twice in as many weeks, a client has called with a question about the characterization of a possible new hire. And, although it has been three years since the Massachusetts legislature passed the law that a Massachusetts Lawyers Weekly headline referred to as "an earthquake for employers in Massachusetts," the aftershocks continue to be felt.

Dont Blow the Boilerplate in Contracts - Click To Read Article
I have tackled this topic before and, assuming that a generic, global warning about boilerplate in contracts was sufficient, went on to address other topics. Well, you know what they say about "assume"... psst, it has something to do with the first three letters!

Credit May Be King, but Cash Trumps Kings Every Time! - Click To Read Article
The news reports these days are bullish on very few segments of our economy and that includes gambling, which lives and breathes on cash. Less cash circulating throughout the economy means fewer folks losing hand after hand in Las Vegas. And that means Donald Trump is breaking bread with his bankers way more often than he would like.

Do Sweat the Small Stuff: Beware of the Hidden Restrictions in Non-Disclosure Agreements - Click To Read Article
Recession or not, my clients and colleagues are doing business, the smart ones even capturing a little more space in their particular niche as the timid and fearful hang to the rear. As you do so, however, keep in mind that if you sign contracts too quickly (understandably not wanting to lose the opportunity), you run the risk of getting caught up in those little "gotchas" that we fail to recognize until it's too late.

Contracts, Contracts, Contracts... Read 'Em Well! - Click To Read Article
Contracts are important documents... for many entrepreneurs, they are the life blood of the business... written agreements which specify, sometimes in great detail, the terms and conditions for the sale of a product or service.

Complying with the New Data Security Law - Click To Read Article
A new law has been bestowed upon the business community by the Great and General Court of the Commonwealth of Massachusetts that is so important, I feel compelled to share the details. As the year goes on, you will no doubt hear more about this requirement, so please consider this an introduction and a gentle nudge in the direction of beginning the process. Without further ado, I share with you an outline of the strictest law in the United States on protecting personal information of residents.

Contract War Stories from the Trenches - Click To Read Article
Yes, indeed, oral business contracts are enforceable… but written contracts are preferable. If I offer to sell you my product for a specific dollar amount, you pay the amount asked, and I deliver to you my product... voila, we have completed our contract! Would that they were all so smooth (hint: they aren't).

Are You Making the Most of Your Professional Relationships? - Click To Read Article
Smart entrepreneurs know the value of creating and fostering relationships long before they will actually need a particular professional. They see the value in the peer interaction ... they see the value in the shared expertise ... they see the value in the team building ... and, most of all, recognizing how lonely an entrepreneur's job can often be, they see the collegiality and enjoyment which can be derived from those relationships.





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