Whether you are starting a small business or running an established company, it is vital to understand business laws and regulations. But that is easier said than done. My goal is to provide business-related legal services so that you can spend more time dealing with the actual business and less time with legal intricacies of operating your business. My services include:

Business formation

You have a new and innovative product or service and you are interested in forming a new business. You may have concerns about liability, taxes, investors and other considerations. As your small business lawyers, we will assist you in deciding whether your startup business should organize as a limited liability company (LLC), partnership, S corporation or C corporation. We will form the most appropriate business organization for your new business and register the business in all jurisdictions in which it will conduct business.

Mergers and acquisitions

If your business is fortunate to thrive and become a merger or acquisition target, we can represent you as the seller; or if you are on the other side and looking to acquire a business, we can assist with the due diligence in purchasing a business. We will review various approaches in purchasing a business through merger or acquisition. We will discuss with you various structures in purchasing the stock or purchasing the assets of an acquisition target. In either case, your business will need thoughtful and comprehensive representation in all aspects of a merger or acquisition.

Government contracting

Government contractors face numerous issues when contracting with the government. And with a hands-on approach and substantial experience, we will help you navigate those legal issues. We prepare teaming agreements, subcontracts and joint venture agreements and can handle a variety of other government contract matters. As government contract lawyers for your small business, we can assist you in applying for programs for HUBZones, service-disabled veteran-owned small businesses or women-owned businesses. If your company is facing debarment or suspension because of allegations of corruption or bribery, we can assist in your defense before the U.S. government or the World Bank.

Business transactions

Once you have an ongoing business, however organized, you will have a host of various commercial transactions. We prepare agreements with lenders, lessors, partners, customers, employees, and consultants. We provide business legal services for your company, preparing confidentiality agreements, nondisclosure agreements, licensing agreements, distribution, employment agreements, independent contractor agreements, lease agreements, and many others. We will help you understand what each part of these agreements require and make sure that these agreements provide protection to you and your business.

Corporate law

Once your startup business has been created, your company will have ongoing requirements to maintain its separate status. We will assist in guiding you on how to prepare corporate minutes or resolutions of the company to maintain the corporate form and other steps to protect the limited liability of your company. You will also have to make sure that your bylaws or operating agreement continues to reflect the needs of the business organization. We are available to assist you in addressing these issues. And once your company is ready to raise additional capital from investors, we can work with you to determine whether you are subject to securities laws or fall within one of the exemptions.

Business disputes

Few businesses are immune to business disputes. If your small business was well-advised, you have an agreement that will provide guideposts on how to resolve your business dispute. If you are unable to settle your dispute, you may have a dispute resolution mechanism such as mediation or arbitration in the agreement. An alternative dispute resolution mechanism such as arbitration or mediation generally can provide a relatively quick resolution of your business dispute. If not, then you may have to consider litigation. We handle business disputes, including pre-litigation matters, mediation, arbitration and litigation.

Anti-corruption compliance

Every company should have procedures and policies to minimize its exposure to allegations of corruption or bribery. An integrity compliance program (ICP) is essential for businesses doing work internationally for the United States government or work financed through one of the development banks. We can assist in reviewing or preparing an ICP to assure that is consistent with the anti-bribery and anti-corruption guidelines from the World Bank. If your company is facing debarment or suspension because of allegations of corruption or bribery, we can assist in your defense before the U.S. government or the World Bank.

Non-profit law

We work with organizations to obtain their tax exempt status under Section 501(c)(3) of the Internal Revenue Code. There have been recent changes to obtaining 501(c)(3) status and we have worked with organizations in submitting successful applications on the simplified track by filing a 1023-EZ and the more rigorous 1023 application for larger organizations. Nonprofits also face similar legal challenges to assure that they comply with business requirements and additional requirements to assure that they do not jeopardize their tax exempt status. As a law firm for nonprofits, we work with nonprofit organizations to guide them through these issues.

FAQ Small Business Attorney in DC

What is considered a small business?

Almost all our clients fall within the definition of small business/startup as determined by the Office of Advocacy of the U.S. Small Business Administration. Under this definition, a small business has fewer than 500 employees. Small businesses encompass about 99.9% of all business organizations in the United States.

Which industries do you serve as a small business attorney?

Most of our clients are service providers such as consulting companies, law firms, accounting and bookkeeping services, cybersecurity consultants, video production companies, and lobbyists, just to name a few. We also represent foreign and domestic manufacturers and software developers.

As a small business lawyer in DC, we represent some retail operations, such as bookstores and restaurants. We also represent numerous nonprofits with varying missions. Our government contractors clients hold various IDIQs (Indefinite Delivery, Indefinite quantity Contracts) and GSA schedules.

In which areas of the law does a small business or startup need legal assistance?

Most times, small businesses/startups need the services of outside general counsel. As outside general counsel for small businesses, we can handle most matters as a small business attorney that small businesses generally encounter. Usually, anything with the word agreement or contract is within our practice areas. This includes operating and shareholder agreements, which are used for small businesses and startups that are formalizing their relationships with their owners. Once a business is formed, then we prepare and review a host of other agreements, such as service agreements (which may be referred to as client agreements or consulting agreements), independent contractor agreements (which may be referred to as subcontracting agreements), employment agreements, teaming agreements, purchase and sale agreements, merger agreements, option agreements, license agreements, lease agreements, and the list goes on.

What factors should a small business and startup look for in retaining the services of a lawyer for small businesses?

With our extensive experience of working as a small business attorney in DC for decades now, background and experience should come right at the top of the list when looking for a small business lawyer. We think that accessibility and communication are essential for a successful relationship between an attorney and a client. Hourly rate is important but not as important as quality of service.

What kind of experience do you have in advising small businesses as an attorney?

Keith Rosten has not only legal experience but also business and practical experience that allows him to relate to the trials and tribulations of a small business owner. Keith has BigLaw experience before working for small and medium-sized businesses, first at his own law firm focused on small businesses and then with Berliner Corcoran & Rowe LLP.

Keith has substantial business experience. He received an MBA from the Tuck School at Dartmouth College. During his business studies, he worked on several group projects with small businesses, including a furniture manufacturer, a manufacturer of leak location precision equipment, real estate developer. After business school, Keith operated a successful real estate business in California and overcame numerous issues, such as asbestos abatement and underground storage tank remediation.

Keith worked as a legal adviser to a government contractor and was a legal adviser to a major initiative in Russia. Keith ran another small business, selling and marketing solar energy equipment. The business had an e-tailer component, hosted the largest solar energy forum online, and sold solar energy equipment to the government. Keith negotiated two GSA schedules for the business and obtained HUBZone certification for the business. Keith was also president of the Dartmouth Entrepreneurial Network – Washington, a networking organization for small businesses in the greater Washington, DC community.

Keith has also volunteered for Compass Pro Bono, working with local business professionals to conduct long-term consulting engagements for local nonprofits in fundraising, governance, and strategy.

With this breadth of legal and business experience, Keith is attuned to some of the challenges facing small businesses, which allows him to provide effective advice and guidance.

As a small business lawyer, do you take in-person meetings only?

Yes. We are located in downtown Washington DC and host many of our clients. For those clients who cannot come into our offices, we usually meet over Zoom or by telephone.

How do you charge for your services as a small business attorney?

We charge our clients based on hourly fees. We usually provide a budget of how much certain matters cost so that startups and small businesses know in advance the ballpark cost of the matter.

What if a client does not like our services?

Clients can terminate our services anytime if they don’t find it satisfactory.

Should my small business lawyer or startup lawyer be in the same state as me?

No, not always necessary and may depend on multiple factors. For example, though we are an expert small business lawyer in DC, we have also provided consultation to other cities’ clients.

Export mistakes: Small businesses beware

Foreign markets offer the allure of 96% of the world’s consumers. Small businesses are keenly interested in export markets. If you are new to these markets, you should familiarize yourself with the resources provided by the Small Business Administration. For the uninitiated, legal dangers lurk under the surface. We have discussed the general regulatory scheme applicable to export controls. In this article, we discuss some common export mistakes that we see exporters make when they attempt to navigate the export controls regulatory landscape without proper guidance.

Related articles:

Export Regulations for Small Businesses
Introduction to Arms Export Controls
Primer on Export Control Laws in the US

Failure to classify technology

The most common mistake is the failure to properly classify hardware, software or technology. The first step is determining the regulation that applies to your intended export.

You should always begin by reviewing International Traffic in Arms Regulations (ITAR). A common pitfall is to assume that the product you are trying to export is controlled under Export Administration Regulations (EAR) when in fact it is controlled by ITAR. Even if you properly identify that the product is controlled by EAR, a common pitfall is to think that the product is EAR99 (the majority of commercial items) when the item is specifically described by an Export Control Classification Number (ECCN) on the Commerce Control List (CCL). The result of these mistakes may be the failure to comply with licensing restrictions imposed under applicable regulations.

Deemed export

Another rookie mistake is the failure to recognize that transfers of controlled hardware or technology to a foreign person, even if that person is in the United States, constitutes an export. An export of controlled technology can easily occur within the walls of your small business located within the United States. For example, your company may be subject to the export control regulations if a foreign national inspects technical data belonging to your company on your premises.

A company risks running afoul of export control laws if it provides access to controlled technology to a foreign national—even if that foreign national is an employee. Transfers of controlled technology or software to foreign person employees even if in the U.S. constitutes an export. Similarly, making controlled technology available to foreign persons, even if by accident may be a violation of export controls regulations.

Under U.S. export control regulations, foreign persons—even if they are physically located within U.S. territory—are treated as if they are foreign countries. This is often referred to as the deemed export rule. Disclosure of technical data to a foreign person is deemed to be an export to the home country of that foreign person.

This often happens in the context of granting non-U.S. employees access to your IT system and having non-US persons as IT administrators. Thus, when hiring non-U.S. persons, it is not enough to address human resource concerns and immigration law, companies must also consider whether an export license must be obtained before a foreign person may begin work.

ITAR and EAR apply to exports and reexports

It is important to keep in mind that export control regulations such as ITAR and EAR may impose restrictions on subsequent retransfers or reexports of U.S. origin goods/technology/software located outside the United States.

The U.S. Government requires all manufacturers, exporters, and brokers of defense articles, defense services or related technical data to be ITAR compliant. If you engage in manufacturing ITAR-controlled defense controlled, you need to register with State Department’s Directorate of Defense Trade Controls (DDTC). Further, if you engage in brokering activities, not getting registered or obtaining prior DDTC authorization, when required, is a violation of U.S. export controls laws.

The definition of a “broker” is expansive. According to sections 129.2(a) and 129.2(b) of the ITAR, a “broker” is any person who engages in the business of brokering activities, which involves actions taken on behalf of another to facilitate the manufacture, export, permanent import, transfer, re-export, or re-transfer of a US or foreign defense article or defense service. This definition covers a wide variety of activities, from financing, insurance, and transportation of covered articles and services, to promotion, negotiation, and general assistance with the contract.

U.S. export control laws and regulations require that exporting firms come to “know their customers.” Even if your business is small, you must endeavor to gain a good understanding of your customers. If your business is exporting, you must exert all reasonable efforts to ascertain the end-use, the end-user, the ultimate destination, and other facts relating to a transaction or activity. Failing to recognize red flags of risk of diversion or restricted use of export-controlled hardware or technology is a common mistake that gets exporters in trouble.

This article has highlighted some pitfalls for business engaged in export, or as we have seen, deemed exports. If you have concerns or questions, you may want to discuss them with an export controls attorney.