Corporate/Business law

BENEFICIAL OWNERSHIP INFORMATION REPORTING CORPORATE TRANSPARENCY ACT SUMMARY One of the unique and often attractive features of a Limited Liability Company can be anonymity.  In most states, formation and registration of an LLC does not require disclosure of the owners or officers.  For various reasons, legitimate and not so legitimate, the owners of a business may not want to broadcast their ownership.  Whether there are genuine concerns regarding privacy and nefarious desires to avoid civil and/or criminal liability, people have availed themselves of this feature.  As such, it can be difficult to identify assets to enforce judgements or confirm net worth in the civil context.  Additionally, it can be difficult to trace financial and criminal wrongdoing to the actual bad actors. The Federal Government has decided to make things a little easier for itself by creating the Financial Crimes-Enforcement Network or FinCEN.  Try saying that five times fast!  In summary, the U.S. Treasury Department will require the vast majority of LLCs along with C and S corporations to report specific information about the business.  This will include information identifying the ownership of the company.  This is not necessarily a new thing for the shareholders of S and C corporations, but this will be a big change for the members of LLCs.   THE RUNDOWN Authority               United States Department of the Treasury Corporate Transparency Act (31 USC 5336(b)) Financial Crimes Enforcement Network (FinCEN) Rule   Deadline                  January 1, 2024-January 1, 2025 for entities formed before January 1, 2024 Within 30 days of formation for  entities formed on or after January 1, 2024   Who Must Comply   Any entity that had to file a formation document with a state authority as part of its formation or registration as a foreign entity doing business in the United States.                    YES–Corporations (C, S, B[1] and P[2]), Limited Liability Companies, Limited Partnerships, Limited Liability Partnerships[3].                    NO—Sole Proprietors, General Partnerships. Exemptions                23 Categories of Exemptions and Exceptions to the rule, including inactive entities, nonprofits, entities that are already subject to federal reporting and regulations, financial institutions, and government entities. Corporate Information       Legal Name Trade Names or D/B/A Names Address Formation State TIN/EIN Ownership Information       Beneficial Owners. Owners with at least 25% ownership or who have substantial control the company directly or indirectly. Legal Name DOB Home Address Driver’s License, State ID, or Passport Number Picture of said ID   Duty to Update          Within 30 days of any change or need to correct information.   Failure to Comply     Civil liability $500/day Criminal penalty up to $10,000 and/or 2 years in jail   THE SOLUTION Resources              FinCEN

By Robert G. Brody and Mark J. Taglia March 10, 2023   On Thursday, March 9th, President Biden submitted his proposed fiscal year 2024 budget request to Congress.  In it he seeks a $1.5 billion increase to the U.S. Department of Labor Budget.  Most of this increase would support the President’s paid family and medical leave initiatives. In his proposed budget, Biden seeks three months of paid leave for American workers.  The President’s stated goal is to permit Americans to take time off for a variety of reasons, including:   to bond with a new child; to care for seriously sick family members; to recover from one’s own serious health issue; and to obtain support/protection from sexual assault and violence.   The scope of coverage under this bill is not news; the fact that it would be paid is the headline. Currently, the U.S. is one of just a few highly developed countries not to provide its citizens with a paid leave program. In recent years, some states have offered paid leave of up to 12 weeks through programs which are similar to the President’s latest proposal.  Thirteen states and the District of Columbia have enacted some sort of paid family leave legislation: California, Connecticut, the District of Columbia,Massachusetts, New Jersey, New York, Rhode Island, Virginia, and Washington currently have laws in effect; Colorado, Delaware, Maryland, New Hampshire, and Oregon enacted laws not in effect yet. On Thursday the President spoke out in support of the proposed program, arguing the time has come for the U.S. to, “no longer [be] the only major economy in the world that doesn’t have paid leave.”  The proposal delivers on campaign promises made by Biden when he ran in 2020. Now the hard part, getting it by Congress. If passed, the proposal would provide paid leave access to approximately 92% of low-paid workers (predominantly women and people of color), who don’t currently have access. Experts believe it will be virtually impossible to get a 12-week paid leave program passed with a bi-partisan split in Congress. Time will tell! Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.  

By Robert G. Brody and Mark J. Taglia January 20, 2023 Last week the Federal Trade Commission (the “FTC”) proposed a rule banning companies from requiring workers to sign noncompete agreements.  Currently, there are about 30 million workers (roughly 18% of the U.S. workforce) who are subject to such agreements.    The FTC proposal would apply to all paid and unpaid employees, as well as independent contractors.  And would even require companies to terminate existing non-compete agreements and inform their employees that their noncompetes are no longer in effect.  This broad action essentially has no exemption. Now that you have taken a minute to let that sink in, let’s discuss.  The FTC is testing its authority to impose a blanket ban under Section 5 of the FTC Act, which prohibits unfair methods of competition.  In proposing the new rule, the FTC argues such agreements suppress wages, restrict innovation, and limit entrepreneurs from going out and starting their own businesses. Noncompetes are increasingly used across industries The FTC said in a statement released last week that “Noncompetes block workers from freely switching jobs, depriving them of higher wages and better working conditions, and depriving businesses of a talent pool that they need to build and expand.” Initially noncompetes were designed to restrict highly compensated professionals in finance and technology, but they are now being used across all industries, including minimum wage service employees. An Obama-era joint-study from the White House and Treasury found in 2016 that 15% of workers (without a college degree) and 14% of workers earning less than $40,000 were subject to noncompete agreements. The counterargument to the FTC’s actions is that when properly used noncompete agreements can preserve competition and foster innovation. Without their protection, new ideas are too easily stolen to justify the time it takes to bring them to life. What employers should do now Companies should take this opportunity to assess where they stand on this issue.  If they feel strongly about the negative impact such a band would have on their business, they should submit a comment to the FTC during its 60-day comment period. Alternatively, support an employer group that will speak out for you. The FTC open comment period runs through March 10 and the FTC is obligated to review each submission and consider changes based on the feedback provided. Additionally, businesses should consider how such a ban may impact their business and evaluate if there are other mechanisms that could accomplish similar goals. For example, could you use non-solicit and non-disclosure agreements. In fact, should you have those agreements in place already? Or consider a contractual incentive to retain talent. This is particularly helpful if retaining talent is the issue and not losing intellectual property. Scholars question whether Congress ever intended to delegate such broad sweeping authority to the FTC. Thus, you should expect several more hurdles before the new rules are implemented, including litigation up to the Supreme Court, which would delay implementation for years. And if this happens, we might have a new Administration before all the hurdles are cleared in which case, the FTC could be ordered to reverse directions and rescind the rule. While few believe a full blown noncompete ban will be in place any time soon, momentum is building not just at the federal level, but at the state level, too.  Whatever happens next with the FTC proposal, we can expect this trend to continue. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws.  If we can be of assistance in this area, please contact us at  info@brodyandassociates.com or 203.454.0560.

By Robert G. Brody and Mark J. Taglia July 5, 2022 Summer is just beginning and so are summer internships. Many of our clients are using interns for the first time since the Summer of 2019 – pre-pandemic. While doing so, it’s important for employers to comply with the Fair Labor Standards Act (the “FLSA”) to make sure their unpaid internship programs and their unpaid interns meet all the necessary criteria under the law.  The FLSA is the federal law that covers minimum wage, overtime pay, recordkeeping, and youth employment. For unpaid internships, the FLSA demands six requirements.  This applies all 50 states.  Additionally, New York state imposes an additional five requirements that also must be met in order to satisfy internship laws for For-Profit companies in New York.  These eleven factors are set forth below (a more detailed description of these factors can be found on the New York State Department of Labor website (click here)): The intern’s training is similar to training provided in an educational program. The intern’s training is for the benefit of the intern. The intern does not displace regular employees and works under close supervision. The activities of the intern do not provide an immediate advantage to the employer. On occasion, operations may actually be impeded. The interns are not entitled to a job at the conclusion of the training period and are free to take jobs elsewhere in the same field. The internship runs for a fixed period, set before the internship begins. The interns are notified, in writing, that they will not receive any wages and are not considered employees for minimum wage purposes. Such written notice must be clear and be given to the interns before the internship or traineeship starts. Any clinical training is performed under the supervision and direction of people who are knowledgeable and experienced in the activity. The interns do not receive employee benefits. The training is general and qualifies interns to work in any similar business. It is not designed specifically for a job with the employer that offers the program. The screening process for the internship program is not the same as for employment and does not appear to be for that purpose. The screening only uses criteria relevant for admission to an independent educational program. Advertisements, postings, or solicitations for the program clearly discuss education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment. *Note: These are the requirements for unpaid internships in New York at For-Profit companies.  Laws for Non-Profit companies and companies in other states may and will vary. While hiring unpaid interns should never be considered a money maker, failing to comply with the FLSA (and other applicable federal and state laws) can be a huge money loser!  Be careful in how you structure and conduct your unpaid internship to ensure you stay on the right side of the law. Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

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As an advisor, your role is to help clients prepare to exit their business, yet many people resist thinking about the future because it involves so many unknowns, decisions, and choices.  And emotions typically complicate matters further, sometimes derailing the process altogether.  Here are some questions that can help you establish rapport with your clients, learn more about their concerns, and move the conversation forward. How are you feeling about your work/profession/business these days? Which aspects of work are you still enjoying, and which are you ready to leave behind? Do you envision retiring from work at some point, or are you contemplating an encore career? What part of planning for your future feels most challenging? How do you imagine your life in retirement will be different from how it is now? What process are you using to figure out what you’ll do next after you retire? What would you like to see happen with your business long term? What options have you considered for the transfer of your business? What steps have you taken to make your business more attractive to a potential buyer? What are your concerns about transitioning your firm to new ownership? What would be your ideal scenario for transitioning out of your company? What topic(s) have we touched on today that we should put on our agenda to revisit? So, what happens after you pose a few of these questions and your clients open up about emotional matters?  Remember, the most helpful thing you can do is to listen attentively.  You’ve created a valuable opportunity for them to talk about things they may not share with other advisors.   Here are some tips for managing the conversation when clients raise emotionally loaded topics: Don’t try to “fix things” by immediately offering suggestions. Doing so sends the message that you’re uncomfortable hearing their concern.  You can offer suggestions but do so later. Don’t say anything that conveys the message that their feeling or concern is unwarranted. “There’s really no need to feel that way” or “I’m sure it will be just fine” may sound reassuring to you but could be experienced as dismissive by your client. Don’t immediately offer a logical counterpoint to your client’s emotion. Remember, feelings don’t have to make sense; they’re “as is”.  Put another way, if feelings made sense, they would be thoughts. People report concerns and characterize their feelings differently from one another, so it’s in your best interest to seek amplification and clarification by inquiring as follows . . . “I want to make sure that I understand exactly what you mean by ___.  Can you tell me more?” “People sometimes mean slightly different things when they talk about ___.  What does ___ mean for you?” “Before I suggest anything, I’d like to learn more about it from your perspective.” It’s possible that during early conversations your client may hint at mixed feelings about exiting their business.  That’s perfectly normal, but you need to bring it out into the open.  You want to foster an atmosphere such that your client keeps you apprised about where they’re at.  If they keep their ambivalence to themselves, it has greater potential to blindside you and complicate the sale.  You can say: “In my experience, it’s normal to have some mixed emotions about selling.  Those thoughts may not always be top of mind, but when they do pop up let’s be sure to talk about them.  Believe it or not, they can help inform our process and alert us to aspects of the sale that are important to you.” You may also find that your client is overly risk averse.  If so, consider saying the following: “Our work together won’t be comprehensive if we only plan for what could go wrong.  That’s just half the equation.  It’s fine to be conservative and err on the side of caution, but to be truly realistic we should also consider a range of possibilities both good and bad.”   Author’s Note:  The concepts in this article are derived from Robert Leahy’s book, Overcoming Resistance in Cognitive Therapy.  New York:  Guilford

For five decades, the southern United States has been an attractive location for automakers to open plants thanks to generous tax breaks and cheaper, non-union labor. However, after decades of failing to unionize automakers in the South, the United Auto Workers dealt a serious blow to that model by winning a landslide union victory at Volkswagen. In an effort to fight back, three southern states have gotten creative: they passed laws barring companies from receiving state grants, loans and tax incentives if the company voluntarily recognizes a union or voluntarily provides unions with employee information. The laws also allow the government to claw back incentive payments after they were made. While these laws are very similar, each law has unique nuances. If you are in an impacted state, you should seek local counsel. In 2023, Tennessee was the first state to pass such a law. This year, Georgia and Alabama followed suit. So why this push? In 2023, the American Legislative Exchange Council (“ALEC”), a nonprofit organization of conservative state legislators and private sector representatives who draft and share model legislation for distribution among state governments, adopted Tennessee’s law as model legislation. In fact, the primary sponsor of Tennessee’s bill was recognized as an ALEC Policy Champion in March 2023. ALEC’s push comes as voluntary recognition of unions gains popularity as an alternative to fighting unions. We recently saw this with the high-profile Ben & Jerry’s voluntary recognition. Will this Southern strategy work to push back against growing union successes? Time will tell. Brody and Associates regularly advises its clients on all labor management issues, including union-related matters, and provides union-free training.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.  

I once had the thrill of interviewing Jerry West on management. He was “The Logo” for the NBA, although back then they didn’t advertise him as such. Only the Laker followers knew for sure. In 1989 the “Showtime” Lakers were coming off back-to-back championships.  Pat Riley was a year away from his first of three Coach of the Year awards. 

Can you Offer Too Many SKUs to Your Customers? The short answer is YES! A SKU, or Stock Keeping Unit, defines each different product version that you sell and keep inventory of.  There may be different SKUs of the same overall item based on size, color, capacity (think computer or cellphone memory), features, and many other parameters.  For build to forecast businesses, that number of variations can quickly explode and become difficult to manage. Your customers are busy and want ordering simplified. Of course, they may need (or want) more than one variation of a product. That is reasonable and a common aspect of business – one size does not fit all! But there is a point where too offering too many SKUs is not value added either for your customer or your business.  In his April 30, 2013 article “Successful Retailers Learn That Fewer Choices Trigger More Sales” in Forbes, Carmine Gallo discusses his experience and a study about “choice overload” by other authors. He writes about a retailer that “has discovered that giving a customer more than three choices at one time actually overwhelms customers and makes them frustrated…when the customer is faced with too many choices at once, it leaves the customer confused and less likely to buy from any of the choices!” Choice overload is well-documented in consumer studies but can apply in B2B as well. While customer satisfaction is important, another key concern is the often-hidden costs associated with a business offering and managing a large number of SKUs for a given product type. These costs include holding inventory, S&OP (Sales and Operations Planning) team time, small production runs, and scrapping inventory. Holding inventory takes up space, which may come with a cost or utilize racks that could be used for other products. Scheduled inventory counts take up employee time and may result in blackout periods when the warehouse is not shipping product.  The more SKUs there are, including extra SKUS, the greater the potential impact. The Sales team’s forecasting and the Operations team’s purchasing reviews that are part of the S&OP process can occupy more of their valuable time if they need to consider these times. If small orders or forecasts require a new production run, this could be costly and create excess inventory. Whether from this new production or past builds, eventually it will make sense to write off and scrap old inventory, another cost impact to the company. How do you know which SKUs to focus on if you wish to look at reducing your total number of SKUs? Start by examining SKUs that have: Low historic sales over a period of time Small variations between SKUs that customers do not value Older technology or model when newer option SKUs are available This requires a true partnership between Sales and Operations. It starts with educating both teams on the costs involved – neither group may be aware of the money and time impact to the company. Periodic (such as quarterly) reviews of SKUs that meet the above descriptions should become a fixed part of the calendar. A review of the data and other available for sale options should result in the identification of SKUs which may not be needed. At that point, it is helpful to have a customer friendly EOL (End of Life) Notice process by which you inform customers of last time buy requirements for this SKU and alternates available. It is usually best to provide some time for the last time buy in the interest of customer satisfaction, although that may not always be necessary. At a company that designed and sold electronics, a robust SKU rationalization process was implemented to help address these issues. A representative from the Operations team analyzed SKUs that met a version of the above criteria and suggested candidates for the EOL process. Next, a member of the Sales team reviewed them and, where appropriate, issued product change or EOL notices to customers, providing them time for last time buy orders when needed. These steps helped reduce the work involved in maintaining these SKUs while not leading to any customer complaints. A final note – sometimes it makes sense to continue offering low selling SKUs – to support customers buying other items (hopefully in larger quantities). It may be worthwhile to encourage them to keep coming back to you for all of their product needs and this may be a way to accomplish that. But it helps to understand that this is truly the case and not assume that this customer would not be equally happy with another, more popular, SKU.   Steven Lustig is founder and CEO of Lustig Global Consulting and an experienced Supply Chain Executive.  He is a recognized thought leader in supply chain and risk mitigation, and serves on the Boards of Directors for Loh Medical and Atlanta Technology Angels.

When it comes to careers, business owners are a minority of the population. In conversations this week, I mentioned the statistics several times, and each owner I was discussing it with was surprised that they had so few peers. According to the Small Business Administration (SBA), there are over 33,000,000 businesses in the US. Let’s discount those with zero employees. Many are shell companies or real estate holding entities. Also, those with fewer than 5 employees, true “Mom and Pop” businesses, are hard to distinguish from a job. The North American Industry Classification System (NAICS) Association, lists businesses with 5 to 99 employees at about 3,300,000, and 123,000 have 100 to 500 employees (the SBA’s largest “small business” classification.) Overall, that means about 1% of the country are private employers. Owners are a small minority, a very small minority, of the population. Even if we only count working adults (161,000,000) business owners represent only a little more than 2% of that population. So What? Where am I going with this, and how does it relate to our recent discussions of purpose in business exit planning? It’s an important issue to consider when discussing an owner’s identity after transition. Whether or not individual owners know the statistics of their “rare species” status in society, they instinctively understand that they are different. They are identified with their owner status in every aspect of their business and personal life. At a social event, when asked “What do you do?” they will often respond “I own a business.” It’s an immediate differentiator from describing a job. “I am a carpenter.” or “I work in systems engineering,” describes a function. “I am a business owner” describes a life role. When asked for further information, the owner frequently replies in the Imperial first person plural. “We build multi-family housing,” is never mistaken for a personal role in the company. No one takes that answer to mean that the speaker swings a hammer all day. Owners are a Minority We process much of our information subconsciously. If a man enters a business gathering, for example, and the others in the room are 75% female, he will know instinctively, without consciously counting, that this business meeting or organization is different from others he attends. Similarly, business owners accept their minority status without thinking about it. They expect that the vast majority of the people they meet socially, who attend their church, or who have kids that play sports with theirs, work for someone else. There are places where owners congregate, but otherwise, they don’t expect to meet many other owners in the normal course of daily activity. This can be an issue after they exit the business. You see, telling people “I’m retired” has no distinction. Roughly 98% of the other people who say that never built an organization. They didn’t take the same risks. Others didn’t deal with the same broad variety of issues and challenges. Most didn’t have to personally live with the impact of every daily decision they made, or watch others suffer the consequences of their bad calls. That is why so many former owners suffer from a lack of identity after they leave. Subconsciously, they expect to stand out from the other 98%. “I’m retired” carries no such distinction.       This article was originally published by John F. Dini, CBEC, CExP, CEPA on

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