Businesses enter into contracts each and every day. Contracts are formed when customers make purchases, when suppliers deliver materials, or when contractors place orders. Contracts are a critical element when it comes to operating a business, and when contracts are not honored, disputes arise.

What Is Required to Form A Contract?

A contract requires five basic requirements, and if any one of the requirements is missing, no legal contract can be formed. The requirements for a contract include:

1. Parties Capable of Entering a Contract. The parties to the contract must be legally capable of entering the contract in the first place. This means that each party to the contract must be fully aware of what they are doing by entering the contract and must understand what the contract means. As a general rule, minors are not legally capable of entering into a contract due to their inexperience, nor are individuals who are considered insane capable of understanding what it means to enter a contract.
2. Offer and Acceptance. In order for a contract to exist, an offer to contract must be made by one party, and the offer must be accepted by another party. The offer must be clear and the acceptance must be definite and unqualified.
3. The parties must exchange something. Each party makes a promise to the other or gives something of value to the other party. The consideration does not necessarily have to be fair or proportional: one party could agree to pay a single dollar in exchange for a motor vehicle, and so long as both parties agree to that arrangement, it can be binding. Consideration could also take the form of not doing something, or foregoing something a party normally would do or has a legal right to do, such as waiving certain rights. This is sometimes referred to as “bargained for exchange” or “bargained for detriment”.
4. Legal Purpose. The contract must be for a legal purpose. To say this another way, the contract cannot violate the law. The parties cannot negotiate terms for the contract that break the law, or are illegal.
5. Mutual Assent. Both parties to the contract must have a meeting of the minds, meaning both parties have a similar understanding of what the contract means, and both agree to be bound by it.

If any of the above requirements is lacking, then it is unlikely that a contract has legally been formed. Furthermore, specific types of contracts might have additional requirements in order to successfully form a valid contract. For instance, for many types of contracts encountered in business, the contract must be made in writing, identifying key terms of the contract, and signed by both parties. For instance, California Civil Code Section 1622 notes that all contracts can be made orally, unless the contract is specifically required to be made in writing by law.

Additionally, certain states may impose additional requirements for a contract to be legally binding and valid, and these laws should be taken into consideration if a specific state’s laws govern the contract.

These elements are fairly straightforward, yet when a contractual issues do arise it can be very difficult for the parties to understand and navigate the legalities in contract law.  Please contact our office if you are facing a contractual issue, dispute, or simply have additional questions relating to contracts.

Personal medical information, medical records patient information are highly sensitive and confidential documents that should be safeguarded against unnecessary disclosure without the patient’s consent at all costs. The information contained in a patient’s medical records is private, and may not be disclosed without permission, save a few exceptional circumstances.

What Laws Protect Patient Medical Information?

There are a number of federal laws in place that are designed to protect the privacy of patient medical records, such as the:

• Health Insurance Portability and Accountability Act (HIPPA) Privacy Rule (45 C.F.R. Section 160, and 164A and E),
• HIPPA Security Rule (45 C.F.R. Section 160, and 164A and C), and
• HIPPA Breach Notification Rule (45 CFR Sections 164.400-414).

California additionally offers protection for patient medical records through California Civil Code Sections 56-56.37, also referred to as the Confidentiality of Medical Information Act. Under California law, a patient’s personal medical information, i.e., any individually identifiable information that is kept in physical or electronic form, is protected from unauthorized disclosure by health care providers, health care insurance providers, pharmaceutical companies, and other entities with access to this sensitive information, unless a court order demands such disclosure.

Medical information can include information concerning a patient’s medical history, mental health history, their physical or mental condition, or any course of treatment they are on. Individually identifiable information can include information such as a patient’s name, contact information, Social Security number or any other information that can be combined with publicly available information in order to identify the patient.

Patient Consent To Disclosure

Many times, a patient is referred to a specialist who requires copies of the patient’s medical records. However, the patient’s current doctor is not allowed to provide the patient’s medical records to the specialist without first obtaining the consent of the patient. If a patient wants to consent to the disclosure of their personal medical information, the patient must give permission in writing.

The requirements for providing patient consent to the sharing, releasing or disclosure of confidential medical records are outlined in California Civil Code Sections 56.11, which requires that the patient’s consent must be:

In writing and signed by the patient, the patient’s legal representative, or the beneficiary or personal representative of the patient (if the patient is deceased).

• Specific as to the permissible uses of the disclosed information, including detailing any restrictions or limitations on the disclosure of the patient’s medical records.
• Clear as to who is authorized to release/disclose the medical information concerning the patient, and must be clear as to who is the authorized recipient of the released/disclosed medical information.
• Clear as to the duration that the authorization is valid for.

Remedies For Unauthorized Disclosure

When a patient’s medical information is illegally disclosed or obtained without permission, the patient has a cause of action under California law. When the patient can show that the unauthorized disclosure amounted to some economic loss or a personal injury to the patient, then the patient has grounds for a suit. If you believe your information was disclosed without your authorization in writing and you have been damaged, contact our firm right away to speak with an experienced Los Angeles business attorney who can determine your rights and options.

We also advise businesses on how to substantially limit their liability and ensure their business policies conform to both state and federal statutes on a daily basis. Contact us if you have been accused of disclosing a patient or employee’s medical information without permission, or are unsure if your business is in full compliance with HIPPA and current employment laws.

There has been a lot of political talk lately about the pay gap between male and female workers, and California is one of the more progressive states when it comes to tackling this issue. In October, Governor Jerry Brown took steps to help close that gap in California by signing S.B. 358, which will revise the existing version of the California Fair Pay Act, specifically Cal. Labor Code §1197.5.

The existing law prohibits an employer from paying male and female workers in the same establishment at different wage rates for equal work requiring equal skill, effort, and responsibility. Exceptions exist under the current law, for seniority, merit, quality and quantity of work, or some other bona fide factor other than the sex of the worker. At present, it is a misdemeanor offense to pay workers of opposite sex differently in violation of the law.

Taking effect on January 1, 2016, the law will be strengthened and will incorporate changes, such as:

• Employees are permitted to discuss their own wages, and the wages of others, openly. These changes are designed to promote pay transparency.
• Instead of prohibiting wage differentials between workers of the opposite sex in the same establishment, the new law will prohibit paying workers of the opposite sex differently for substantially similar work, taking into consideration skill, effort, and responsibility associated with the work.
• If there is a wage differential between workers of the opposite sex, the burden is on the employer to affirmatively demonstrate why the wage differential exists, based on seniority, merit, quality and quantity of work, or some other bona fide factor other than the sex of the worker. These factors must be applied reasonably, and must account for the whole differential. This new provision will place a higher burden on employers who are trying to justify a pay gap between similarly situated employees of different sex.
• Employers are prohibited from discharging, discriminating against, or retaliating against workers who seek action under the new provisions of the new law, and any employee who is discharged, discriminated against, or suffers retaliation by their employer for seeking action under the provisions of the new law will be eligible to recover lost wages (including interest and lost benefits), may seek reinstatement or other suitable equitable relief. This change makes it easier for employees to establish a prima facie case against their employer.
• Employers are required to retain records concerning employees’ wages and wage rates for a period of three years, as opposed to the current two years.

What Can Employers Do In Preparation For This Change?

The new law is meant to provide additional protections to employees by placing new burdens on employers. Worker’s rights are important, and it is important that business owners and employers be appraised of the new changes that will be taking effect in the new year concerning employee wages. Any business who has California employees will be subject to these new requirements.

Employers should get ready for this change by evaluating employees’ payment structure and assessing whether there is any potential for problems to arise. Employers have a few months before the law takes effect, in which they can take steps to correct or mitigate any potential employee pay issues. Analyzing any wage differentials and assessing whether any reasonable factors exist that warrants the differential in employee’s pay are just a couple of important steps an employer should be taking at this time. Employers can also advise management of the changes in the law, especially the provisions concerning workers’ new ability to openly discuss wages.

For more information on the ramifications of this legal update, or should you need advisement for any employment-related matter, contact Spotora and Associates, PC today and to speak with a senior level Los Angeles business attorney.

The healthcare industry is a bustling marketplace for new ventures to enter these days. Americans are demanding better quality care at a better price, and recent healthcare reforms have paved the way for disruptive technology and new businesses to make a move into the healthcare industry. There are a number of unaddressed needs and challenges in our healthcare systems that are waiting for the right innovative solution to come along.

Be Mindful of Laws and Regulations That Apply to Your Business

As you work to move your new business into the healthcare industry, keep in mind that it is one of the most highly regulated industries out there, largely because people literally depend on healthcare products and services to save their lives and keep them healthy. Not only do new ventures in healthcare need to build their businesses within the parameters of the Affordable Care Act, but many also need to engage with the Food and Drug Administration (FDA).

While these rules and regulations may seem difficult to navigate and poses potential hurdles to developing your business, they are manageable and your business will get through them. When you need help navigating the law or other regulations that affect your business, you should contact a business lawyer that specializes in those specific matters.

Join a Healthcare-Specific Incubator or Accelerator

There are a number of healthcare-industry specific startup incubators and accelerators that new ventures can apply to and utilize to help get their business off the ground. These incubators help fledgling companies make contacts with potential investors and industry leaders, assist these companies with preparing grant applications, and can offer guidance and support on how to make it big in the healthcare industry. Incubators help to develop small companies into sustainable businesses, and many new ventures use incubators as a stepping stone, and sometimes even a spring-board, to further the success of their business.

Success Doesn’t Happen Overnight

Breaking into the healthcare industry is never quick work. New companies and startups have to demonstrate that they have a useful and practical new product or service that fills a need in the market and also need to build a name and reputation for themselves. There are two main impediments that can delay how quickly a new venture can make it big in healthcare.

First, there is the time and energy requirement that goes into familiarizing others with your products and services, building relationships with industry partners, and creating a network and support structure around your business. Getting noticed isn’t easy work, and while some new entities get a lot of attention when they first enter the healthcare industry, for many new companies and startups it can take several years to establish themselves. Be persistent, resilient, and adapt and grow your business, even if it is slowly – all progress is good progress when trying to make it in the healthcare sector.

Second, regulatory requirements can take a long time to get through as the FDA is not known for its speediness. The good news is, working through the regulatory processes isn’t so much about being difficult as it is about being lengthy. While there is a lot of red tape, your business will get through it if you just stick with it and are patient.

When you need help navigating the law or other regulations that affect your business, you should contact a business lawyer that specializes in those specific matters.

Many startup companies don’t realize the importance of hiring a business attorney.  Considering today’s technology-focused world, there are numerous reasons startup companies should spend the money for a lawyer who is skilled in copyright and intellectual property laws, trademarks, incorporating, agreements, contracts, and more.  In addition, many new companies make decisions without knowing whether they’re legal, just pushing the envelope, or even perhaps breaking the law.  As a Los Angeles startup company, do you really need to consult with an experienced Los Angeles business lawyer?  The answer is simple:  absolutely.

Here’s a quote you may or may not be familiar with by Guy Kawasaki:  “Ideas are easy.  Implementation is hard.”  Never a more true sentence spoken!

It really makes no difference whether yours is a digital startup or you’re just getting started with a brick-and-mortar business.  Every startup benefits by acquiring an attorney who specializes in the areas of business, including entity formation, founder agreements, and more.  In the early stages of a startup company, legal needs may vary in the areas of licensing, employment, partnership, and other areas depending on the nature of the startup, and its growth.  Mergers, acquisitions, and securities regulations are other areas many business attorneys specialize in, and that startups may eventually need guidance with.

Of the startup companies who do, why hire an attorney?  There are countless reasons, not the least of which include a business lawyer who is laser-focused on the success of his/her client provides long-term, strategic value in addition to focusing on risk-management for startups, and smart growth strategies.

If yours is a startup company, do you understand how to legally hire employees, compensate them, or even terminate an employee?  How is the proper way to go about protecting intellectual property, or advertise in a way that’s in compliance with federal rules?  If you intend to partner with another company or enter into an agreement, do you know all the rules and how to accomplish your goals without conflict?  Online, how can you maintain user privacy on your company website?  There are literally hundreds of questions startup companies have, which makes hiring a capable and trusted LA business lawyer critical to your success.

At Spotora & Associates, we understand the needs of startup companies, and how your success hinges on the guidance and support of a skilled and experienced attorney.  Avoid legal issues that could devastate the success of your business by consulting with a lawyer early on.

You are excited about owning a franchise, have asked those you know who are franchisees about their experiences and success, and perhaps have already begun work on your business plan. Is this enough, or do you need to do more to protect ensure you are protected from a legal standpoint? The quick answer – you need to hire an experienced Los Angeles franchise lawyer. Here are a few of the reasons why taking this step is so important to your success.

Franchise attorneys understand what really matters. From FDD’s or Franchise Disclosure Documents to contracts, lawyers who focus in this area of the law know what is essential to ensuring you are up-to-date with the latest franchise laws, and the various restrictions/obligations you must abide by as a franchise owner in order to avoid termination.

Guidance on how to set up your franchise business. Few franchisees understand the various options when it comes to setting up their business as a C-Corporation, LLC (Limited Liability Corporation), or Subchapter S Corporations. What are the differences, and which is best in your situation in regards to how your business will be taxed? A skilled franchise lawyer in LA can provide the guidance you need in this area of your business.

When it looks like you are destined to fail, you need an attorney’s expertise. You never expected your franchise to fail, but it does happen – all too frequently, unfortunately. The location you chose may not have been the best, or you failed to profit fast enough to stay in the game. Perhaps the franchisor is partially to blame for the failure of your business. Franchisors have a responsibility to help franchisees with the “ins and outs” of the business in regards to location, the development of new services or products, the success of other franchisees, competitive factors such as price, and other details. Another reason it’s important to hire a capable franchise lawyer – and to thoroughly read and understand the FDD.

Those involved tell you that hiring an attorney will be a waste of money. If there is one red flag in owning a franchise, this is it! Franchise developers often advise potential franchisees that the agreement contains no negotiable terms, so hiring a lawyer will simply be a waste of money. Essentially, the top priority of the franchisor is to get the agreement signed, without a professional reading over the terms to advise you of any potential problems or issues that may in fact be negotiable.

Are you considering a franchising opportunity? Going forward with this type of business opportunity involves a certain level of uncertainty and stress. By hiring a qualified Los Angeles franchise lawyer, you will enjoy peace of mind – not to mention a more restful sleep at night.

When one successful company merges with or acquires another successful company, the deal attracts a lot of attention, particularly when the players are big names in high-profile industries. The growth potential of each entity can be enormous.

But what can also be profitable are strategic “carve-outs,” which occur when assets are “scooped out” of an ailing company. You may be able to purchase just the piece of the company that you are interested in, or you may be able to buy the entire company and then sell off the assets that you don’t care to keep.

There is more inherent risk with carve-outs because you are dealing with something that is currently troubled financially. The flipside is that these assets often come at a reduced price.

When looking to purchase a carve-out, it is imperative to look at every piece of the company’s financial puzzle and be sure the asset can be turned around successfully. Thorough analysis is paramount.

Some of the questions you want to ask yourself:

-From the ground up, what problems did the asset or company face?

-What does the expense structure look like?

-How long will it take to make the necessary adjustments for the company or asset to become profitable?

-Is the risk worth the potential reward?

Just because an entire company or asset is not performing well doesn’t mean it is worthless. Perhaps the asset simply needs a shift in its business strategy or a minor restructuring of its finances to put it in the black.

When looking for a carve-out, the best bets are within industries that you have experience with or carry the potential for “synergy” with your current business. This can save a lot of money and make the deal more profitable in the end. For example, if you manufacture household goods, you would do best to purchase a product that can be easily integrated into your current operation. Because you are purchasing a troubled asset, it makes little sense to take more risks than necessary.

While companies seeking carve-outs usually look to their local competition, sometimes it makes sense to go beyond your own borders, too, particularly in today’s challenging economic climate. To stay competitive and to diversify in tough times, it may make sense to expand to a global market. Of course, that carries with it a whole host of added legal requirements.

If you are a company looking to “carve-out” a competitor’s assets, it is important to speak with an experienced attorney.

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

If you are serious about the music you create as a composer, you should be serious about music licensing.

Music is everywhere in the world of entertainment: Movies, television, radio advertisements and commercials. There is always a need for top-notch songs and artists.

“For an upcoming composer, licensing music is a vital step in growing a career,” said Anthony Spotora, a Los Angeles-based entertainment and business lawyer. “Licensing music means that your creation is not only protected from illegal use but can also bring a source of income and bigger name recognition. If the people behind a commercial or feature film like your composition, for instance, they will request a music license for the piece.”

While music licensing can be lucrative, it is important to become educated about the process and to receive adequate representation to secure the best deals for oneself.

There are several options for music licensing. One of the best-known options is to register and become a member of ASCAP, BMI or SESAC, which are also known as performing rights organizations (“PRO”).

Such companies collect millions of dollars annually for composers and publishers for so-called performance royalties, but you must be registered as a member to see this income.

“Performing rights organizations act as middlemen, essentially,” Spotora said. “When a song is  ‘performed’ – this includes usage in commercials, airplay, etc. – the user pays the PRO rather than the copyright holder directly. The copyright holder is then paid a royalty by the PRO.”

A separate option is to connect with a publishing company. The publisher will handle issues such as music licensing, collecting royalties and negotiating licensing figures. If your publisher works hard and is well-connected, it can generate serious income for you as a composer and catapult your career to new heights.

If you are a composer, it is important you understand how to properly protect your music as well as secure the most desirable music licensing deals. For questions about legal matters pertaining to music licensing, contact an experienced entertainment attorney.

Anthony Spotora is a Los Angeles entertainment lawyer and Los Angeles business attorney. To learn more, visit Spotoralaw.com.

In today’s economic downturn, more and more businesses may be looking to alter their business models. Such a plan for change is often referred to as a corporate turnaround strategy.

With revenue streams suffering, it can be difficult to figure out what to do when your business is experiencing such disappointment. But with the few tips below, it is possible to develop a plan that will help you identify problems and alter the course of your business for the better.

1. If your business is experiencing problems and feels like it is in freefall, the first step to take before you do anything else is to seek stabilization. Take a look at what assets are critical for the survival of both the company and its ownership and then protect and preserve those assets.
2. Next, you need to undertake a lengthy and comprehensive identification period. You need to get back to finding out what your business is all about. What are the core values that your company holds? Who are your main customers, and are you continuing to provide them with goods or services that they want? What do you really stand for? Have you gotten away from your business principles?
3. Once you have answered these questions, you need to make an honest list of the core problems with your business. Seek input from not only management, but staff, too. What processes are counterproductive? What uncritical functions need to be scaled back? Remove the excess. Perhaps layoffs need to take place. Perhaps entire departments need to be scaled back. If it doesn’t fit with the core values of your business, it probably needs to go.
4. Put together an implementation plan for making these changes. Provide specifics on how these changes will be implemented. Develop a timetable for taking certain steps. Eliminate the chance of chaos by carefully explaining how the restructuring will take place.
5. Now you are ready for the actual restructuring. It will be all-important to follow the specified steps in your implementation plan.
6. Review your restructuring plan periodically and make updates and tweaks as necessary.

Undertaking a corporate turnaround can be a complex and stressful process. If your business is looking to complete a turnaround, it may also be helpful to hire a consult or an experienced corporate attorney who can offer a fresh set of eyes.

Anthony Spotora is a Los Angeles business attorney, intellectual property lawyer and entertainment lawyer.  To learn more, visit Spotoralaw.com.

Intellectual property is a complicated aspect of law, to be sure. It encompasses, among other things, copyrights and trademarks, and is intended to protect a variety of “creations of the brain.”

Copyright does not protect ideas, rather, but original literary and artistic works, musical pieces, discoveries, inventions, logos, designs, architectural creations, photographs and the like. The term “intellectual property” wasn’t used until the 1800s, though the foundation for the legal protection of intellectual property began centuries ago.

Section 106 of the 1976 Copyright Act generally gives the copyright holder the right to the reproduction of his or her work, to distribute copies or recordings for sale to the public, to perform or display the work publicly and to take other similar actions. The law also details “fair use,” which allows the use of copyrighted material for news reporting, criticism and other special cases.

Intellectual property also includes trademarks. Trademarks are protected by a sign or other indicator that can help distinguish one service-provider or goods manufacturer from another. The sign or indicator can include one or more of the following: a logo, a word or phrase and images. They are protected by the Trademark Act of 1946.

A trademark is essential because it serves to identify a particular business as the source of the service or goods. Registration of a trademark provides federal protection and a bundle of rights; however, use alone can establish common law rights. Those who infringe upon these rights can be subject to penalties.

Trademarks are registered in most countries and are also classified by the International (Nice) Classification of Goods and Services into 45 Trademark Classes. Numbers 1 to 34 concern goods, while numbers 35 to 45 concern services. For a trademark to be registered, it has to be original and cannot be deceptive or similar to trademarks that have already been registered.

Copyrights and trademarks are an essential part of many businesses. And in today’s world, when the rights of creators are being threatened by so many advances in technology, it is important to protect your creations.

If you are looking to file copyright or trademark papers, or believe that someone else has stolen your work or trademark, it is essential that you hire an experienced attorney.

To learn more, visit https://www.spotoralaw.com/