Artikel aus der New York Times, Sektion Legal Issues – lesenswert für StartUps, die in den US Markt eintreten wollen:
By ELLEN ROSEN
Ythan Lax was not a newcomer in the business world. He had spent years in corporate communications before striking out on his own by opening a Little Gym franchise in upstate New York. But despite his experience, he felt unprepared to cope with the myriad legal issues that arose and sought out a lawyer for help.
“If you think that having an attorney that is qualified is expensive, try not having one,” Mr. Lax said, who paid $7,000 for his. “I can’t count the number of mistakes I would have made — taxes, financing and, perhaps the scariest part — signing a seven-year lease with a personal guarantee,” without the advice of counsel.
When do you really need a lawyer? Despite the proliferation of both self-help books and Internet advice, when starting a business even the most sophisticated of businesspeople find, as Mr. Lax did, that they need an individual lawyer to guide them through the most basic of decisions as well as the more complicated ones, like financing and property issues.
Lawyers often seem expensive and an intangible cost to entrepreneurs. The good news, says Thomas J. Walsh Jr., a partner at Brody, Wilkinson and Ober in Southport, Conn., is that “most lawyers will typically have a consultative meeting when they won’t charge because it’s a time for both lawyer and client to see if they are a good fit for each other. Because there will be a lot of time spent with each other, hopefully over many years, it’s important that the parties have chemistry and see that they see things in a similar fashion.”
But once you’ve retained a lawyer, it makes sense, experts say, to outline concerns and questions before the first official meeting. A little homework can go a long way in helping to keep costs down. Because lawyers charge by the hour, “use your lawyers’ time efficiently,” said Mr. Walsh, who heads an American Bar Association subcommittee on closely held businesses.
Before the first meeting when the fee clock begins ticking, Steven Gersz, a lawyer in Rochester, says he encourages companies both large and small to complete a formal business plan. “It’s your road map,” he said. “It forces you to think about how you will handle things before you get into business. It forces you to look at the product or service you’re offering, how will you price it or target to your customer and how will you handle your competition.”
It’s not the “length or prettiness of the plan that matters,” he added.
“You need to do it to make sure you’ve thought through all the big-bullet issues: marketing, competition and cash-flow needs,” said Mr. Gersz, a partner at Underberg & Kessler who has advised Mr. Lax.
After creating the plan — which will not only aid lawyers but banks or other investors as well, the founders should consider the structure of the business — corporation or partnership. The structure chosen may depend on whether the entrepreneur expects to have outside investors in addition to friends and family members, and whether the client needs to limit liability while having the tax benefits of the gains and losses from the business, Mr. Gersz said.
Additionally, an entrepreneur should also consider whether there are key contracts needed to conduct business. Those, Mr. Walsh says, can range from an agreement with a co-owner, a sales representative or an outsider, like a vendor or important client.
The business owner also should think about any intellectual property assets that will be used by the new company. At a minimum, product or company names should be researched online first, even though a lawyer should ultimately perform a trademark search. The owner must also think about how to protect other assets — designs or processes, for example — when starting up. While it may be simpler to contribute the assets to the business, Mr. Walsh said that licensing them to the business could be a better option, because “you can maintain some control over use of the invention.”
Two other related issues that most entrepreneurs overlook are exit strategies and succession. Lawrence A. Goldman, a partner at Gibbons, Del Deo, Dolan, Griffinger & Vecchione in Newark who runs the A.B.A.’s committee on small business, “Preparing for an exit, in event of disability or death or dispute between the parties is a big issue. For the same reason that people put off doing their wills because they don’t want to deal with issue of custody of the children, those going into business often don’t deal with exit or disputes mechanisms because they don’t want to have confront difficult decisions that may need to be made.”
But, he says, it’s important to have a mechanism for “valuing the business, for determining how the value would be paid.” Mulling over the options before meeting with a lawyer can save time, which typically translates into costs.
For Mr. Lax, the devil was in clauses: “The issue that could have been a deal-breaker on my lease and with my loan had to do with ‘subordination,’ ” he wrote in an e-mail exchange.
“In the event of bankruptcy,” he continued, “pretty much everyone wanted to have the first right to use my equipment and other assets as collateral. The franchisor, bank and landlord all felt that they should have the first claim to assets, and obviously, you can’t use the same assets to secure every business relationship.
“I can guarantee you that I did not fully understand the wording of these clauses and without a qualified attorney to negotiate and modify the terms put forth by each entity, I would have certainly signed each agreement and would have pledged the same collateral to three different companies. This could potentially have voided my franchise agreement, loan terms and lease.”
No matter how efficient, legal services will, inevitably, seem expensive to those starting out in business. It is, Mr. Lax said, “extremely difficult when buying tangible items to get a business started to put a huge amount into services you can’t touch, taste or smell. Counsel is expensive and no one says ‘I can’t wait to pay my attorney’s bills.’ But it’s a mistake to put your life into a business without counsel.”
