Debt Collectors Save Us All Money in 2007?

In a national study entitled "Value of Third-Party Debt Collection to the U.S. Economy in 2007:  Survey and Analysis" , which was conducted by PricewaterhouseCoopers and commissioned by ACA International, it was determined that in 2007 the collection industry was able to return $40 billion in bad debt back to large and small businesses that had previously extended consumer credit.  That $40 billion return represented a greater than twenty (20) percent reduction in private-sector bad debt.  The study suggested that this return of $40 billion translated to an average savings of $354 per American household, as the reduction in bad debt helped companies keep their margins low and in turn sell there products at a lower price.  So there you have it...through the diligence and hard work of its employees the collection industry benefits us all.

IowaBiz Breakfast Series Presentation

This Wednesday morning (Jan. 16th) I will speak at the IowaBiz breakfast series on the Top Ten Legal Surprises for Your Company.  The presentation begins at 7:30 a.m. at the Professional Solutions Insurance Services' Building, 14001 University Avenue, Clive, Iowa.

Thanks to our hosts from Professional Solutions Insurance Services.  So far, the series has been fantastic including talks from Drew McLellan, Shirley Poertner, Brian Honnold and Mitch Matthews.

I hope to see you there.

Proud to Join Expanding List of Iowa Bloggers

Mike Sansone has compiled a list of Iowa bloggers that Drew McLellan has coined the "I List".  (Let's hope we don't see a trademark lawsuit by Apple).   And while this pair of prolific bloggers managed to overlook our relatively new Iowa law blog we hold no grudges.  We have added a few Iowa law blogs to the list originally posted by Mike.

Kudos to this partial list of the hardest working bloggers in Iowa:

Adam Carroll
Andy Drish
Art Dinkin, CFP, CLU, ChFC
Association of Business & Industry
Babich, Goldman, Cashatt & Renzo
Barry Pace
BeatCanvas

Bill Grell
Blue Frog Arts
Brett Trout
Bridges Financial
Broom Wizards
C Wenger Group
Carpe Factum
Claire Celsi
Cloud Nine Diamonds
Compass Financial Services
Conference Calls Unlimited
ConverStations
Dave Dreeszen
Des Moines Families
Dickinson, Mackaman, Tyler & Hagen
DMWebLife
Do You Q?
Dr U Fantasy Football
DSM Buzz
Dwebware
Employer Ease
Eric Peterson
Focal Point Multimedia

 George Davison
Gift Idea Help
Home Know-it-All
Insight Advertising & Marketing
Iowa Bed & Breakfast Association
Iowa Biz
J. Erik Potter
Jann Freed

Jennifer Jaskolka-Brown
Josh More
Kyle's Cove
Maiers Educational Services
McKee, Vorhees & Sease
McLellan Marketing Group
NCMIC Insurance
Purple Wren
Radio Iowa
REL Productions
Rental Metrics
Rita Perea Consulting
Roth & Company
RSM McGladrey
Ruby's Pub
Runners' Lounge
Rush Nigut
Ryan Rossinick
Simplifive
Snap! Creative Works
Studio 24 Design

Sullivan & Ward's Iowa Law Blog
Swing Station
The Members Group
The Mitchell Group
The Simple Dollar

 The Yin Blog
Transition Capital Management
US Rodeo Supply
Victoria Herring
Wade Den Hartog
Wealth With Mortgage
When Words Matter
White Rabbit Group

Happy New Year everyone!  If you know of an Iowa blog that should be added to this list please let us know.

How to Avoid the Business Divorce

"If we are together nothing is impossible.  If we are divided all will fail." - Winston Churchill

Handshake_3 Partnerships.  I often tell people that it is not a matter of IF . . . it's a matter of WHEN it will end. 

Call me cynical but unfortunately I have seen too many business partnerships break up and end in the dreaded business divorce.  Amazingly, many partnerships seem to survive the lean years.  But when success happens that's when people change and strange things start to happen.

So how do you prepare yourself to avoid the pain, expense and aggravation of the business divorce? 

Every business partnership (whether in a corporation, LLC or true partnership) should consider a buy-sell agreement from the outset.  As Central Iowa financial planner Art Dinkin says, Begin with the End in Mind.

A buy-sell generally covers how an owner can sell shares and how to value those shares.  Further, a good buy-sell agreement sets forth what happens in the event of death, disability, retirement, divorce, bankruptcy or other considerations. 

Effective buy-sell agreements will generally require a right of first refusal.  This means if one owner finds an outside buyer for his shares the owner must first offer those shares to the other existing owners.  This protects the owners from suddenly running the business with someone they did not intend to have as a partner.

The time to enter into a buy-sell agreement is at the beginning of the business relationship when everyone is excited and getting along.  It is often very difficult to negotiate a deal when something has gone wrong.  Without a buy-sell agreement, owners may end up in court and the business may suffer.

And amazingly, with an effective buy-sell, a strange phenomenon often occurs.  People actually get along and the business prospers. 

photo on flickr by oooh.oooh

Deadline for Claims in Microsoft-Iowa Class Action Fast Approaching

The deadline for filing claims in the Microsoft Iowa Class Action Settlement is December 14, 2007.  If you have any questions about how to file a claim be sure to email the claims administrator at claimsadmin@iowamicrosoftcase.com.

For a recap of articles on the Microsoft Iowa case click here which includes one of my most popular blog posts entitled On the Seventh Day She Rested.

At-Will Employment

Iowa is an at-will employment state. The term at-will presumes that employment is voluntary and indefinite for both employers and employees. Either party can terminate the relationship at any time. For employers, however, there are some exceptions to the at-will doctrine.

Obviously employers cannot violate state or federal laws when firing employees. Employers may also not terminate employees if a contract exists between the parties. Employment contracts may be the result of collective bargaining agreements or individual written contracts. 

Less obvious to some, is the fact that employment contracts may arise through the policies outlined in an employee handbook provided to all employees. Handbooks may provide employees with expectations regarding disciplinary and termination procedures. Deviations from the policies outlined in the manual may provide a basis for a wrongful termination action against the employer.

In order to prevent such an action, employers that provide handbooks to employees should follow steps to ensure that the handbook reinforces the at-will doctrine. 

Lawsuits Down for U.S. Businesses

The Des Moines Business Record reports that lawsuits are down for U.S. businesses.  The report is based upon a survey by the law firm of Fulbright and Jaworski, LLP.  Fulbright surveys 250 in-house counsel from major corporations.  But don't get too excited about the reduction in case filings.  One-third of the corporations surveyed face at least 25 lawsuits and 18 percent are juggling at least 100 actions in U.S. courts.  Fulbright says,

The sheer economic stakes of litigation remain daunting.  Forty percent of U.S. companies say they were hit with at least one suit in the past year with more than $20 million at issue.  Among billion-dollar businesses, 62% were served with at least one $20 million lawsuit.

The study also concludes that patent and product liability cases are on the rise.  For most smaller businesses, it is my experience the threat of an employment lawsuit is far greater than just about any other cause of action.  In particular wage and hour litigation is on the rise.  No surprise the Fulbright study shows employment and labor lawsuits are the most common cause of action facing large corporations as well.

 

 

Do Large Salaries Equal Championships or Terrific Companies?

Iowa's own Casey Blake had a monster game for the Cleveland Indians last night with a home run and RBI single.  Indians are now up 3-1on the Red Sox and look to clinch the pennant this Thursday.  HR Capitalist has a fun and interesting post noting the difference in the payroll between the Indians and the Red Sox (and the Yankees).  

It kind of reminds me of the principles in Good to Great by Jim Collins.  It is a reminder that the highest price talent does not always mean your organization will come out on top. 

photo on flickr by runnx. 

Blame the Lawyer: Accountants Always Do

Joe Kristan writes about Relief for Late S Corporation Elections over on the Roth & Company Tax Update blog.  The deadline for making an S corporation is 2 1/2 months after the start of the year the election is to take effect.  The IRS will allow corporations to make their election when they file their first S corporation tax return, if they have "reasonable cause" for the late election. The IRS will modify the S election form, Form 2553, to accomodate relief requests under Rev. Proc. 2007-62.

What is "reasonable cause"?  Kristan says the time-honored justification is to blame the accountant but as an accountant he prefers the "blame the lawyer" approach.

Don't worry, Joe.  A business lawyer has broad shoulders.  And you are not the first accountant to blame the lawyer.  I can assure you of that.:) 

Is a Business Plan Necessary to Build a Successful Business?

Over on IowaBiz I recently wrote about whether a business plan is necessary to build a successful business.  I thought I would share it with our readers here.  As an Iowa business lawyer I get the question a lot.

If you look at the statistics starting your own small business is risky at best.  The conventional wisdom says you need to write a business plan because your chances of success are greatly increased if you understand the challenges you'll face and develop a plan to meet those challenges.

But the problem for many new business owners is that writing a business plan seems like a daunting task.  Often new business owners want to make that plan absolutely PERFECT.  They spend so much time working on the plan they don't work on the business.  The reality is that no business is perfect and neither are business plans.  As Iowa patent attorney Brett Trout loves to point out:

When you start a business, who knows where you are going to end up?

Some experts, including Guy Kawasaki, question whether a business plan is even necessary.  Kawasaki points to a study from Babson College that shows there is no difference between the performance of new businesses launched with or without a business plan. 

The findings suggest that unless a would-be entrepreneur needs to raise to substantial startup capital from institutional investors or business angels, there is no compelling reason to write a detailed business plan before opening a new business.

So what do you think?  Do you agree with the study?  Is the "Just Do It" philosophy the way to go or is a written plan necessary to build a successful business?  What strategy has worked for you?

IF YOU WANT TO GET PAID, GET IT IN WRITING (part 2)

I can't speak for all businesses, but from my perspective most businesses have a signed agreement before they provide services for either an individual or a business. However, invariably it is those transactions in which the agreement was never actually signed that cause the most problems for the business owner.  

The typical fact pattern goes something like this:   an individual wants some work done to his home, he approaches an electrical contractor for a bid,  the contractor gives the homeowner a bid, the homeowner says, "yeah, that is fine but I need the work done right away because of (insert any emergency situation here)."  

Contractor, says,  "great, it just so happens that I have some time available within your time frame, if you will just sign this agreement I will go ahead and order the material that I will need for the job."    

Homeowner, says "Yeah, I will sign it, I just can't do it today because (insert any half-baked excuse you can imagine). 

That should be definite red-flag to the contractor, or to any other business owner for that matter; however, due to a downturn in the construction industry  and perhaps being a little strapped for cash and against the contractors better judgment he reluctantly takes the homeowner at his word and begins the project. 

At the end of the day the contractor incurred the expense of the project and now the homeowner is unwilling to pay and the contractor is placed in the unenviable position of having to decide to cut his losses and move on or he can go after the homeowner for his damages, which will require a further outlay of cash and time.

The point of this post is this,  if you are going to provide a service and would like to give yourself the best opportunity to be paid for that service, then you must get the agreement in writing.  I know that this is not earth shattering information, but it is worth repeating as everyone knows that they need to put an agreement in writing, yet from time to time exceptions are made and the exception leads to a big headache. 

The bottom line is this:  If you want to increase you ability to get fully paid for every service you provide and therefore increase your bottom line then you must not perform any work before you receive a signed writing spelling out the extent of the agreement. 

If for some unknown reason you find yourself proceeding without an agreement, then my advice to you would be to begin rubbing your rabbit's foot or looking for that four leaf clover because it will likely take all of the luck in the world for you to get paid in full and on time.  If someone does not want to put it in writing then they certainly do not want to pay for it. 

IF YOU WANT TO GET PAID, GET IT IN WRITING (part 1)

In an ideal world, when a business provides a service, the person or entity benefiting from the service promptly pays the provider for that service (assuming of course, that the service was performed as the service recipient expected).  As anyone who has been in business for longer than a week can tell you, when it comes to customers paying for the services that they receive, the world is not perfect. 

Because not all customers pay as agreed, it is imperative that before performing any work the service provider must first get a service agreement signed by the service recipient.   I know that this seems obvious and I would guess that the majority of businesses do get the bulk of their agreements in writing, yet it is always the small exceptions that end up causing business owners the biggest problems. 

Now, I know that there is portion of small business owners reading this that are likely saying to themselves:  "we do business on a handshake and a person's word is just as good as any contract," and  I would agree that that is the case 95% of the time,  but it does not take too many disputes over payment to begin to negatively effect your bottom-line.  When a service has been provided yet the recipient unjustifiably refuses to pay for that service,  then the business owner has a choice to make:  either eat the costs of the service or enlist the services of an attorney.   It has been my experience that most business owners would rather shove a stick in their eye then have to choose between those two options, but whether you like it or not, this is the decision that the business owner has to make.  

As you may have guessed, I mainly talk to the latter, business owners that chose to contact an attorney, and without exception the first question I will ask my client is whether there is a contract.  The answer to that question is determinative of the likelihood of being able to recover this debt for the business owner.   

If the answer is "yes, we have a contract signed by the service recipient and I will send it to you immediately", then I feel pretty good about the client's likelihood of recovery.  Conversely, if the client answers, "no, but...", then the client's prognosis for recovery has suffered a two-fold set back, first, it will be more difficult to prove the existence of a oral agreement to the satisfaction of a court and therefore, more attorney fees and second, and I may be generalizing here, but it has been my experience that if someone is unwilling to sign a contract for a service then they are equally unwilling to voluntarily pay for that service.

Tomorrow I will continue with part 2.

Employee or Independent Contractor?

Small Business Owners - Beware!  If you own or manage a small business you live in a world of substantial legal risks and increasing complexity.  It is easy to find examples of practices that once have been common but now could give rise to employment lawsuits.  One such example I often hear is "I'll just call my workers independent contractors and avoid the hassles of employees."

 

Construction_worker

Many businesses make the mistake of treating employees as an independent contractors so they can save money on taxes, red tape and benefit coverage.  The risks associated with this approach is often not worth it.

Businesses that misclassify workers often find themselves embroiled in wage and hour lawsuits or workforce development audits.  These businesses could also face tax penalities and lack of insurance coverage in key liability situations.

Often, businesses treat employees as independent contractors because they fail to fully understand the distinction between the two categories.  The most important difference is whether or not you have the right to control the work.  Other factors, such as where the work is performed, who provides the equipment, how payment is made and if there are set hours, also play an important role.

Generally, an employee is someone whose manner of work the employer has a right to control, even if the employer does not actually exercise that control.  True employees are sometimes known as W-2 employees because of the W-2 form issued to them for federal income tax purposes. 

On the other hand, an independent contractor is someone you engage to perform a certain task, but whose manner of work you do not have the right to control.  You have the right to tell your independent contractor what it is you want done, and you remain free to dismiss them if you do not like the work (depending on your contractual arrangement).  Ultimately though it is the results you are interested in.  The manner in which the results are accomplished is up to the independent contractor and is not subject to your control.  An independent contractor is given a 1099 form to report income for federal tax purposes.

If you have questions about whether to treat workers as employees or independent contractors be sure to consult with an employment or tax lawyer.  This area of the law is more complicated than just the control issue.  Tax lawyer Tripp Atkins is currently analyzing the 20-factor IRS test for determining an employee or independent contractor on his blog.

The safest course is to treat workers as employees if the workers' status as an independent contractor could reasonably be questioned.   

Photo on Flickr by Partsnpieces.   

Where Should You Incorporate Your Iowa Small Business?

Where should you incorporate your Iowa small business?  This question is asked a lot by Iowa_picmany prospective small business owners.  The question used to be surprising but after seeing and hearing numerous advertisements for Delaware and Nevada corporations on the Internet and on satellite radio it is definitely a legitimate question.

Delaware has reputation and history on its side.  Delaware's Division of Corporations boasts that more than a half a million business entities make their legal home in Delaware including more than 50% of all U.S. publicly-traded companies and 60% of the Fortune 500.  Businesses, especially large ones, choose Delaware because of the state's business laws and respected Court of Chancery.  Most observers say it is because of Delaware's predictability. 

Nevada has recently exploded in popularity for many businesses.  This is due to Nevada's pro-business climate, low-tax mentality and the lack of an information sharing agreement with the IRS.

Delaware or Nevada may offer viable options for some companies but in general most Iowa small businesses are probably wise to incorporate in Iowa.  First, Iowa has very low fees when it comes to incorporating your business.  It is a $50.00 fee to file Articles of Incorporation for a domestic corporation in the state of Iowa.  Further, it only a $30.00 fee every two years for a biennial report if you file online.  These fees are extremely low compared to other states.

Second, you won't avoid Iowa taxes by incorporating your Iowa small business in Nevada or Delaware if you are doing business here in Iowa.  The tax and corporation laws of Iowa will require you to register your company and pay fees as a foreign corporation in Iowa and you will be required to pay Iowa state income taxes for any income earned.  (You also do not avoid federal income taxes by incorporating in Nevada despite the lack of an information sharing agreement with the IRS).

And the perceived court advantages in Delaware?  That might be fine for a large business that is actually going to litigate a case in Delaware but it is probably not cost effective for most Iowa small businesses to litigate their cases in Delaware.  Besides unless you have well-written forum selection clause in contracts your Iowa small business will likely end up in Iowa courts anyway.

If you have questions regarding where you should incoporate your Iowa small business be sure to contact a business attorney licensed in Iowa. 

Photo on flickr by rsgranne.