Though we are a California based firm, through our membership association of over 190 independent highly-rated law firms worldwide, we provide clients with representation throughout the US and the world.
Representing Businesses and Their Owners
Since its inception, Coleman & Horowitt, LLP has focused its practice to provide a full range of services to businesses and their owners.
A Commitment to the Community
Coleman & Horowitt, LLP believes it’s not enough to merely provide exceptional service and advice to our clients. We also have a duty to serve the community.
We Have The Professionalism Of
25 YEARS OF SERVICE WITH OVER 100 YEARS OF EXPERIENCE
Coleman & Horowitt, LLP was established in 1994 by William H. Coleman and Darryl J. Horowitt.
Latest In The News
What You Need To Know About Fictitious Business Name Statements
By Lawrence E. Westerlund If your last name is not your company’s name, you need to file a “Doing Business As” or a Fictitious Business Name Statement! That is right, you read that correctly. If your last name is not in your business name, you are required by law in California to file a Fictitious Business Name (“FBN”) Statement, also known as a “Doing Business As” (“DBA”) statement. The California legislature a long time ago determined that it is good public policy for customers and the general public to be able to determine who owns a company, so they passed a law that requires all persons doing business under a name different than their own name to file a fictitious business name statement. Who is required to file a FBN Statement? The law says that anyone doing business for a profit in California as a corporation, Limited Liability Company or limited partnership under any name that is not exactly the name on record with the California Secretary of State’s Office must file a FBN Statement. By the way, a FBN Statement and a DBA are the same thing. Let’s break down the requirements more; a FBN Statement is necessary when: A sole proprietorship will be doing business under a name that does not include the owner’s last name. So “Mike Wazowski’s Plumbing” does not require a FBN because his last name is in the business name and the public knows who owns the business. “Mike’s Plumbing” needs a FBN because it does not have his last name in the business name. The public cannot determine who owns the company from the name alone. A partnership or other association will use a name that does not include the last name of each general partner. So if you have a partnership of investors and you call the partnership “Shaw Avenue Investors,” you will need to file a FBN Statement; If the name of the business suggests other owners, like “Wazowski and Sons.” The “Sons” suggests additional owners and doesn’t include their last names, so a FBN Statement is required. A limited partnership, corporation, or Limited Liability Company (“LLC”) is doing business under a name not stated in the Articles of Incorporation or Articles of Organization filed with the California Secretary of State. So if your Articles of Incorporation filed with the Secretary of State say “Mike’s Business,” you have to do business as “Mike’s Business” unless you register a FBN Statement. Basically, you need to file a FBN Statement anytime you are doing business under a name that is not your entity’s legal name that is on file with the California Secretary of State. Why do I need to file a FBN Statement? Failure to file a FBN Statement may create some real problems for those who do not file. California has a statutory incentive to comply because the statute provides that a person transacting business under a fictitious business name contrary to the provisions of the statute may not maintain any action upon or on account of any contract made, or transaction had, in the fictitious business name in any court of this state until the fictitious business name statement has been executed, filed, and published as required. Also, the business owner or officer or other agent entering into a contract on behalf of an entity using an unregistered fictitious business name may find himself personally liable if he fails to disclose the name of the entity on whose behalf he is acting. Both of the above issues are very serious when weighed against the little time needed to file a FBN Statement. How do I file a FBN Statement? First you have to check to see that the name is not being used by someone else. You can search for entity names on the California Secretary of State website . In some counties, you can do online searches for fictitious business names. You submit an Application for Fictitious Business Name to the county clerk or county office tasked with this function. Applications are usually processed within three to five business days after receipt, not including delivery timeframes. Pay the application fee and ensure the statement is correct and complete before filing. Once your statement has been filed, changes cannot be made and refunds are not usually issued. Most counties need an original or “wet” signature on the application. New FBN Statement filings must be published by the applicant in a newspaper of general circulation in the county in which the principal place of business is located. The notice must appear once a week for four successive weeks. You must then file an affidavit of publication with the county or city office. FBN statements are to be filed no later than forty (40) days from the start of conducting business. FBN statements are valid for five (5) years. You must re-file every five years and pay current fees, even if there are no changes. You are not required to republish a renewal if the information does not change. FBN statements have a 40-day grace period following the date of expiration for filing a renewal. There are a couple of important things to note. Simply filing a FBN Statement will not change any of the tax consequences for your business. Also, filing a FBN Statement in California does not grant you exclusive rights to use that name. The only way to legally protect your exclusive use of a name is to register a trademark under that name. Finally, this blog is not a substitute for legal advice. We would be happy to assist you to set up your business entity, consider tax issues, and help you file your FBN Statement.view the article
Latest In The News
Understanding Force Majeure And How It May Impact Your Contracts Due To COVID-19
By Sherrie M. Flynn Download a PDF of this article here The outbreak of the COVID-19 virus is having significant impacts on companies, including disruption of supply chains and performance of delivery obligations. As a result, some companies may desire to be excused from their contractual obligations due to these events to avoid losses that may arise from inability to perform to contract terms. This article discusses contractual issues resulting from the pandemic, including force majeure clauses, and impossibility, impracticability and frustration of purpose as legal excuses for nonperformance. What is Force Majeure Force majeure is defined as “unforeseeable circumstances that prevent someone from fulfilling a contract.” Force majeure clauses in contracts are intended to allocate risk between the parties when events make performance impossible. A force majeure clause frees both parties from obligation if extraordinary events prevent one or both parties from performing. These events must be unforeseeable and unavoidable, and not the result of a party’s actions. Hence they are considered “Acts of God.” Examples of typical events that can trigger a force majeure clause include unpredictable natural disasters such as earthquakes, floods, or hurricanes, and riots or acts of war. So, can the COVID-19 pandemic constitute a force majeure event? It depends. What if You Cannot Fulfill Your Contract Due to COVID-19 If you are a party in a contract and cannot perform due to the effects of COVID-19 (e.g., your business is ordered closed by the government, your employees cannot come to work as they are ill or caring for others affected by COVID-19, etc.), you should review your contract to see if it contains a force majeure clause, which is one of those common clauses that many view as boilerplate, but important in many contracts. If so, review the language of the clause to see what specific events are identified as triggering the right to cancel a contract. If it has specific language that includes an epidemic, pandemic or public health emergency, your force majeure clause may permit you to use the clause to terminate or suspend a contract. If, however, your clause includes broad, “catch-all” wording, such as “Acts of God”, then COVID-19 may or may not be considered a force majeure event as courts generally interpret force majeure clauses narrowly. Once you have identified whether your contract may cover COVID-19, you must still show how COVID-19 has actually caused your failure to perform and that you took reasonable steps, in good faith, to “mitigate” (decrease) or avoid the effects of the force majeure on your contractual performance. Courts will also look to see whether the force majeure clause has notice requirements and, if so, whether you provided proper notice. In any case, do not make a determination on your own regarding whether the force majeure clause in your contract excuses your performance. Instead, seek the advice of counsel. What to Do if Your Contract Does Not Have a Force Majeure Clause If your contract is silent on force majeure, all hope is not lost. In some cases, a party’s performance may still be excused based on principals of impossibility, impracticability, or frustration of purpose. Generally, these excuses are also narrowly interpreted and applied by courts. For example, contractual obligations can be excused if it becomes impossible to perform them because the promisor becomes incapacitated or dies. Impossibility may include quarantine or illness due to COVID-19. Additionally, if an irreplaceable good or component is contaminated because of COVID-19, performance may be excused if the good or component was required for performance. Performance may also be impossible in regions where there is a state-imposed “shelter-in-place” order due to COVID-19. Performance may also be excused when a party can demonstrate that a supervening event has caused performance to become so difficult and expensive that it becomes impracticable, even though it may be technically possible. For example, if a company cannot secure raw materials without extreme difficulty and excessive and unreasonable expense due to COVID-19 causing shutdowns in supply, performance may be excused as impracticable. Impracticability does not apply, however, if the COVID-19 event merely renders performance more expensive. Frustration of purpose is a limited excuse that applies when the main purpose for entering into the contract is destroyed due to a supervening event, and both parties knew of the purpose for entering into the contract. For example, if a company was contracted to provide security services for an event, but the event was cancelled due to COVID-19, the doctrine of frustration of purpose may excuse performance. Steps to Take Once You Have Identified You Cannot Perform Now that you have identified that COVID-19 has prevented your company from performing under an existing contract – such as your supplier has cancelled its contract, your employees cannot come to work, you are under a government order for your business to close, etc. – you should let your customer(s) know as soon as possible. Let them know the reasons you cannot perform. If there is a force majeure clause in your contract that applies, let them know you are exercising your rights under the contract. If no such clause exists, still let them know a legal reason your company cannot perform. Your customer may complain about breach and damages they may be suffering because your company cannot perform, but issues of who is right and wrong will have to wait until the pandemic is history. You will at least have preserved your right to be excused from performance once business resumes. Conclusion As is stated above, because force majeure clauses are defined narrowly, it makes sense to employ legal counsel to help you review your existing contracts and determine if they include such a clause that may excuse performance in your circumstances. In addition, now that you know what a force majeure clause can do in your contracts, you may want to start including such clauses in your future contracts. It can only help if you do so. If you have questions concerning the applicability of a force majeure clause or other defenses for non-performance of a contract, contact the author at (559) 248-4820 or email@example.com. The author, Sherrie M. Flynn, is a registered patent attorney and partner in the Fresno office of Coleman & Horowitt. She represents clients in intellectual property matters including patent prosecution and litigation, trademark, trade dress and copyright registration and enforcement as well as intellectual property, unfair competition, complex commercial and construction litigation. For the past five years, she has been recognized as a Northern California Super Lawyer®. She is a member of the Fresno and American Bar Associations, the Los Angeles Intellectual Property Law Association and Association of Business Trial Lawyers Association. She can be reached at (559) 248-4820 or firstname.lastname@example.org the article
Latest In The News
Employers Must Begin Using the New I-9 Form by May 1, 2020
By Gregory J. Norys All employers are required to verify the citizenship status for new employees before the first date of employment. As part of the process, all employers are required to obtain a Form I-9 for all new employees. On October 21, 2019 the Office of Management and Budget approved a new I-9 form. On January 31, 2020, the U.S. Citizenship and Immigration Services (“USCIS”) published the Form I-9 Federal Register notice announcing a new version of Form I-9: Employment Eligibility Verification. The new version contains minor changes to the form along with its instructions. As noted above, all U.S. employers must properly complete the Form I-9 for each person they hire for employment in the U.S., including both citizens and non citizens. New hires and employers, or their authorized representatives, must complete the form. Employers must retain the completed forms for a designated period and make them available for inspection when called to do so. The new edition of the form lists additional countries in the Country of Issuance field in Section 1, among other minor changes visible only when completing the electronic version of the form. The notice also provides employers time to make necessary updates and adjust their business processes. Most important is that employers should begin using this updated form no later than April30, 2020. To download the newest Form I-9, along with instructions, click here: https://www.uscis.gov/i-9 There are exceptions during these times (COVID-19) that employer’s and workplaces that are working completely remotely will not be required to review the employee’s identity and employment documents in person. To learn more contact me directly. Although the novel coronavirus is requiring most employers to close and most employees to shelter in place, your company still needs advice. We remain open and available to help. If you have any questions, please contact Greg at (559)248-4820, ext.161 or email@example.com. This article was written by Gregory J. Norys, a partner at Coleman & Horowitt, LLP, where he manages the firm’s Visalia office. As head of the firm’s labor & employment practice group, Greg works in the firm’s litigation department representing clients in complex commercial and real estate litigation, construction litigation, labor and employment counseling and litigation, and professional liability defense litigation. He has been named a Northern California Rising Star® by Super Lawyers (Thomson Reuters) and is a member of the Tulare and Fresno County Bar Associations and the Association of Business Trial Lawyers. Greg can be reached at firstname.lastname@example.org or (559) 248-4820, ext.161.view the article
Latest In The News
Business Owner Legal Insights for COVID-19 Government Acts
Gregory J. Norys, a partner at Coleman & Horowitt, LLP recently joined Valley Innovators on their podcast providing insight on recent government acts intended to help small business owners and their employees through the Coronavirus pandemic. Greg discussed the new Families First Coronavirus Response Act (FFCRA), Emergency Family Medical Leave Act (EFMLA), Emergency Paid Sick Leave Act (EPSL), and implications for unemployment benefits, employer tax credits, and healthcare. Listen to the episode here: Business Owner Legal Insights for COVID-19 Government Acts – Podcast by Greg Norysview the article
Latest In The News
The Families First Coronavirus Response Act (FFCRA): How It May Impact Your Business
By Gregory J. Norys Download a PDF of this article here Congress and the President have come together to provide relief to Americans affected by COVID-19. The first piece of legislation, called the “Families First Coronavirus Response Act” (“FFCRA”) contains several major provisions, three of which directly impact employers with up to 500 employees. Two components require paid leave (with available tax credit/ refund to employer) for certain Coronavirus related grounds through December 31, 2020 (the “expiration date”). This article will summarize the paid leave components of the law. Who is Covered First, the FFCRA defines who is and is not covered. Covered Employers includes employers with fewer than 500 employees. The Secretary of Labor has authority to issue exemptions for employers with less than 50 employees, and we expect additional guidance to be published soon. Notice to be Given The Act requires employers to post and keep posted on the premises a Notice to be prepared by the Secretary of Labor the requirements of the Act. This Notice has not yet been published but is to be prepared no later than seven days after enactment of the Act. It is unknown how many employees may see the notice as many governments, state and local, have issued shelter in place orders Benefits Available –Emergency Paid Sick Leave (EPSL) EPSL is immediately available to all employees with no eligibility or time worked requirements, who are within one of the following categories: 1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19. The shelter in place order recently issued by several State and local governments may suffice. 2. The employee has been advised by a healthcare provider to self-quarantine due to concerns related to COVID-19. 3. The employee is experiencing symptoms of COVID-19 and seeking a medical diagnosis. 4. The employee is caring for an individual who is subject to an order as described in subparagraph 1, above, or has been advised as described in paragraph 2, above. 5. The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID-19 precautions or other public health emergency. 6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor. Hours of paid leave The hours for which an employee will receive leave differ depending on whether the employee is full or part time. Full time employees will receive up to 80 hours of benefits. Part time employees will receive their average hours for a two-week period where the hours are fixed, but if not fixed, they will be calculated using the following formula: 1. Calculate average daily hours over the prior 6 months as of date of leave including paid time off of any kind and then use those hours to calculate 2-weeks’ worth of hours; or, 2. If employee has not worked 6 months, then use “the reasonable expectation of employee at time of hire” they would normally be scheduled to work. How Pay Will Be Calculated Where an employee is required to miss work as a result of the reasons set forth in paragraphs 1-3, above, the employee may receive their regular rate of pay under the Fair Labor Standards Act (“FSLA”), which is essentially a weighted average of all forms of pay (hourly, non-discretionary bonus, commission, etc.). This is not just a straight time hourly rate, unless hourly wage is the only wage employee is paid. Where the employee is required to miss work due to the reasons set forth in paragraphs 4-6, above, the employee will receive two-thirds (2/3) of their regular rate of pay. The law allows the employer to pay less for those reasons versus the first three qualifying EPSL reasons. The Maximum EPSL Wages Paid For the reasons set forth in paragraphs 1-3, above, the maximum rate of pay is $511/day per person; $5,110 total/aggregate per person. For all other employees, the maximum rate of pay is $200/day per person; $2,000 total/aggregate per person Other Provisions The other provisions include the following: 1. EPSL is in addition to other benefits required by law or employer policy/employee handbook (e.g. sick leave policies, PTO/vacation policies). 2. The employee must use it or lose it; there is no carryover. 3. The employer cannot require employee to find replacement coverage and cannot require employees to use other leave prior to accessing EPSL. 4. An employer may not retaliate against an employee who seeks benefits under the EPSL. 5. An employer must reinstate the employee after leave, subject to the following exceptions: a. There are exceptions related to economic hardship/other reasons (call us or an experienced employment lawyer if you think you don’t want to return an employee to work); b. If exception applies, employer has ongoing obligations to essentially recall or offer alternative positions to employee (again call us or an experienced employment lawyer to discuss along with whether an exception applies in the first place). The FFCRA also authorizes the Secretary of Labor to promulgate regulations allowing health care providers and emergency response employers to opt out, and to exempt employers of less than 50 people when the imposition would jeopardize the business as a going concern. However, for now, those regulations are not in place and all employers must comply until such regulations go into effect. Other Questions You or Your Employees May Have 1. How Does Employer Pay For The New Paid Sick Leave and FMLA Expansion? There are refundable tax credits for employers who are required to pay out under the Act. Contact your accountant for information on how this will be processed, and we expect additional guidance for employers to be published soon. 2. How Does Unemployment Overlap? The Bill would make it easier for individuals to receive unemployment insurance (UI) benefits if they are not eligible for paid leave but are still unable to go to work because of the Coronavirus. However, with the California Governor passing the “Stay at Home” order, all workers in California may fall under the first prong of leave eligibility. As for those in other states, it depends on why the employee is required to miss work. The legislation builds on the guidance already provided by the Department of Labor by waiving the able and available UI eligibility requirements, as well as the one-week waiting period required before an individual can apply for UI benefits. COUNSEL TO MANAGEMENT The new emergency law raises a lot of unanswered questions. For those reasons, you should seek the assistance of legal counsel before navigating if you have specific questions or a need arises. Employers should also be prepared to field questions about this very complex, very new, and very confusing law. More will become known in the coming days. We hope to have answers for you then. If you have any questions now about this article, please feel free to contact the author at email@example.com or firstname.lastname@example.org. For a complete copy of the FFCRA, go to https://www.congress.gov/bill/116th-congress/house-bill/6201 This article was written by Gregory J. Norys, a partner at Coleman & Horowitt, LLP, where he manages the firm’s Visalia office. As head of the firm’s labor & employment practice group, Greg works in the firm’s litigation department representing clients in complex commercial and real estate litigation, construction litigation, labor and employment counseling and litigation, and professional liability defense litigation. He has been named a Northern California Rising Star® by Super Lawyers (Thomson Reuters) and is a member of the Tulare and Fresno County Bar Associations and the Association of Business Trial Lawyers. Greg can be reached at email@example.com or (559) 248-4820.view the article