Jane, Stop this Crazy Thing

As a business transaction attorney, I am a first-hand witness to the personal energy, time and emotion that parties put into the purchase or sale of a business. All of these elements can be critical components to completing a transaction; they can, however, also cloud and complicate the decision to terminate negotiations and abandon a transaction.

When parties commence a business transaction it is often with the best intentions, good faith, but only a general agreement of the essential business terms of the deal. As the saying goes, “the devil’s in the details”. As lawyers, accountants, and other professional advisors become involved, the parties are forced to consider the transaction terms with much greater specificity. Moreover, there are almost always terms and conditions that are critical to the transaction that the parties did not consider in their initial discussions.

As the negotiations and preparation of the transaction documents move forward, the opportunity for a “stalemate” on a critical issue increases. Too often, such stalemates lead to protracted and unproductive negotiations. As a result the transaction may fall apart, or one or both of the parties may end-up with a transaction that does not meet their anticipated result.

Ultimately, a purchase agreement is a balance of risk and reward. The buyer or seller of a business must balance the potential reward of the transaction with the risk that the party must bear under the purchase agreement. When a “stalemate” occurs, a party should promptly assess the impact of the issue in question on that party’s risk/reward analysis. If conceding on the issue results in an unacceptable risk to the party (without corresponding reward), the party must either obtain the concession from the other party on that issue, or walk away from the transaction. The sooner this determination can be made the better.

In order to prepare to make decisions during the process of negotiating a transaction, a party should know its risk/reward profile, and prioritize its interests prior to undertaking a transaction. In doing so, with the assistance of its professional advisors, the party will be better prepared to make critical decisions during the negotiation process. A prompt but thoughtful decision may result in a resolution of the disputed issue; or a determination that the transaction is not in its best interest. Either way, the party will avoid an endless run around the treadmill with Astro.

Mediation in Divorce: The Place of Contentment

I wrote an article to increase awareness about the use of mediation in a divorce case as a sensible and cost-effective alternative to litigation in appropriate cases. Parties and their counsel should know what to expect and what not to expect both from the mediator and the mediation process. Informing participants about the process before they participate in mediation may increase the likelihood of settlement. To learn more about the role of mediation in a divorce case, see:

http://nhbar.org/publications/display-news-issue.asp?id=4279

"Would You Like to Supersize Your Contract?"

"You must have a form for that?" Business attorneys often hear that question from prospective clients when discussing a document they would like to have prepared. It may be an agreement relative to formation of an entity, a commercial contract, or an agreement for the purchase and sale of a business. Too often parties believe the lawyer has a "boilerplate" agreement into which the lawyer simply needs to fill-in the names of the parties and the dates.

Part of the value of hiring a seasoned business attorney is, indeed, to benefit from the prior experiences and work performed by the attorney in similar matters. Additionally, there is the benefit of efficiency and economy with an attorney who does not have to "re-invent the wheel" when working on a business agreement. Each commercial relationship, however, has its own dynamic and unique concerns which should be properly and specifically addressed in the governing contract. The provisions of the contract to address such issues cannot be "cut and pasted" from one agreement to another.

Your business attorney should take the time to ask you about the parties involved, the specific goals of the business relationship or transaction, standards and guidelines for performance by each party, timing concerns, and any unique issues that may arise in performance of the contract. These are matters that are unique to each contract. If these questions are not asked and, therefore, not addressed in the agreement, in the event a dispute should arise the agreement will provide little guidance in resolving the dispute.

A little extra time in the preparation and drafting of a business contract may save much time and many dollars in avoiding or resolving a subsequent dispute between the parties. There are no contract "Value Meals" to order.

What is Meritas?

Recently I attended a conference hosted by Meritas, a global alliance of law firms of which Wiggin & Nourie, P.A. is a member. As a new associate at Wiggin & Nourie, P.A., I was largely unfamiliar with this relationship and the ways in which the firm’s membership benefits our clients. I learned that this alliance enables W&N to offer our clients regional expertise anywhere in the world while maintaining the personal attention, superior responsiveness and cost-effectiveness that mid-sized firms are able to provide.

Membership in Meritas is like having a Wiggin & Nourie, P.A. branch office in every major market in the world; only better. Member firms are not just satellite offices of a firm whose main practice is located elsewhere. Only mid-sized firms with an established reputation in their local market are invited to join Meritas. Once member firms have been carefully selected, Meritas continues to monitor the quality of their legal services and requires regular recertification. Best of all, since it’s an alliance of mid-sized firms, Wiggin & Nourie, P.A. is able to maintain a cost-effectiveness that very large law firms just can’t match.

What this all means to our clients is that Meritas helps us to serve all their legal needs – whether they are here in New Hampshire or, through the regional expertise of other Meritas firms, virtually anywhere in the world.
For more information, see www.meritas.org

What Employers Can Learn from the Boston Red Sox

Much has been written about the steps the Red Sox have taken to make the team successful. A few of the decisions could be implemented by employers with something less than a $143 million payroll.

The Red Sox identified minor league players the team expected to move up during the season and provided them with an orientation program to address everything from media relations to tipping of club house attendants. The same could be applied outside the baseball world by identifying employees with potential and then providing them with early tools to help them in the next level of their careers.

Curt Schilling could earn $2 million in bonuses if he meets certain weight goals. Although this is an extreme measure, many employers are seeing the benefits of employee wellness programs. Employer programs on weight loss, smoking cessation, and similar health topics can encourage a healthier workforce with the potential for fewer sick days and lower insurance costs (and a quicker fast ball).

The Red Sox have seen the value in their “older” players such as Tim Wakefield and Schilling and have entertained new ways to play to their strengths (such as a six-man rotation). With baby boomers approaching retirement age, critical skills will be leaving the workforce. Forward-thinking employers are looking for creative ways to retain older employees and/or train younger workers to be ready to fill the shoes of retiring workers.

Enjoy the off-season and remember . . . spring training games will begin in less than three months.

New Hampshire Civil Union

Attorney Polly Hall, a domestic attorney with our firm and I have been presenting talks around the State on the new Civil Union statute. Recently we did a presentation at a local university to discuss the statute that will go into effect January 1, 2008. It was well attended, and I think the people of New Hampshire are starting to really think about the new law and its impact on our state.

While the new law will give rights to civil union partners, it also comes with its drawbacks. Of note is the university's benefit program. I have been told that the university is thinking of treating same sex partners as they treat heterosexual partners. This means if a same sex couple is in a "domestic partnership," meaning they have not entered into a civil union, they will not be afforded the benefits of a couple joined in a legal union. Only same sex couples who enter into a civil union will be afforded benefits available to heterosexual married couples. As Attorney Hall and I discussed the new law, the audience began to understand the broad impact of the statute and I get the sense in the community that a lot of people will be watching to see how the new law impacts our State.

“Every Breath You Take . . . I’ll Be Watching You”

I recently attended a session on privacy in the workplace at the American Bar Association Labor and Employment Conference. Up until now, much of the talk has focused on email, and the trend in the courts has been to find that employees do not have a reasonable expectation of privacy in the use of workplace computers if the employer has distributed a policy reaffirming its right to inspect its own equipment.

Besides email, there are many other forms of technology that allow employers to watch what their employees are doing. One panelist showed us a radio-frequency identification (RFID) device that a hospital requires its employees to wear in order to track where they are while they are working in an effort to improve patient care. For example, if a patient complains that she has not seen a nurse for 24 hours, hospital administration can track the room history to see if anyone did visit the room during that period of time. Other employers have started using GPS devices to track the location of employees.

This scene easily could be set to the tune of The Police’s stalker song, “Every breath you take, every move you make . . . I’ll be watching you.” Although these devices have the potential to improve efficiency and the delivery of services, they also run the risk of invading employee privacy and deflating employee morale. Prior to implementing a surveillance or searching program, employers should:

1) articulate a legitimate business reason for the surveillance program,
2) use the most narrow surveillance program possible to meet the business need,
3) avoid systems that track employees when they are not working,
4) distribute a policy explaining the type of searching or surveillance utilized, and
5) consult with an attorney for advice specific to the particular program.