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.

Small businesses cope with COVID-19

Coronavirus (COVID-19) is the pandemic of a lifetime. In Washington, DC, until the last few days, everything looked normal. The extreme low tide lured everyone out onto the dry cove to collect seashells as the beachgoers glance up to see the impending tsunami on the horizon heading straight for them. The government seems utterly unprepared.

Teeramet Thanomkiat © 123RF.com

How has this affected small business clients? In short, from all accounts, it will be devastating. This blog outlines some of the major legal issues affecting small business clients as the tsunami is about to rocket onshore.

Force Majeure clauses

You remember that provision in your agreement regarding force majeure. Force what, you asked. It is from the French (surprisingly, not Latin) and means superior force. These provisions conjure up the idea that if there is a war or some “Act of God,” you may be excused from performing your obligations under a contract.

You probably thought that unless you delivered your products to Eastern Ukraine, chances were slim to none that these provisions would ever come into play. Until now…

Whether you or the other contracting party is off the hook depends on the specific language in your agreement. You can ask your small business lawyer how the particular contract language in your agreement applies to the facts and circumstances of your relationship with the other party. And keep in mind that the law is different in different jurisdictions.

Impracticability and frustration of purpose

Even if you don’t have a force majeure clause, you or the other party may argue that you should be excused from performance based on other legal theories such as impracticability or frustration of purpose.

A party to a contract may be excused for impracticability (or related theory, impossibility) if after the execution of the contract an unexpected event occurs that makes performance commercially impracticable and the party should not bear the loss from the occurrence of the event.

If you think that this rule sounds amorphous, you are not the only one. One law professor commented: “The few cases that do discuss [commercial impracticability] developed muddled and inconsistent rules, leading to an unpredictable and confusing doctrine that fails to serve its intended purpose.”

Frustration of purpose will excuse a party from performance if an unexpected event occurs makes one’s performance lose its essential purpose and a party should not bear the loss from the occurrence of the event. Frustration of purpose focuses on what the purpose or aim of the contract was. Impracticability focuses on the performance of one of the parties. Both theories may come into play if a party is trying to avoid performing its obligations because of the coronavirus.

Get out your agreement and check the wording of your particular agreement. Whether you are the vendor or the recipient of services, call your small business attorney and see what your options are. There will undoubtedly be numerous lawsuits that will probe these issues.

Material adverse effect in mergers and acquisitions

Are you in the middle of an acquisition of a business? Did you intend to purchase a restaurant and signed a purchase and sale agreement in January? And then the coronavirus pandemic hit and the restaurant is now closed for anything other than take-out.

You may rely on one of the theories in the previous sections to excuse your performance. But in the M&A context, there usually is a specific provision regarding a material adverse change or material adverse effect (terms which are sometimes used interchangeably).

In acquisition agreements, usually your M&A attorney will include a provision giving the buyer the right not to close on the deal if the seller’s business experiences a material adverse change from some baseline date, such as the date of the execution of the purchase agreement, to the scheduled date of closing. It would be hard not to think of a more material event that a pandemic such as the coronavirus.

These provisions are hotly negotiated, and disputes frequently arise. Unlike force majeure, the triggering event need not be an external meteorological event or act of war, but can be tied to quantitative thresholds such as financial results, industry-based circumstances or changes in the law.

Business interruption insurance

Most small businesses have some form of a general liability insurance, which insures against losses from things like theft or damage to property. And your broker probably offered you an endorsement that extends the policy’s coverage to business interruption losses. Now that the coronavirus has closed down your business, can you collect on your business interruption insurance.

The underlying policy does not cover your business for economic losses. The general liability policy will not cover your losses when you cannot continue to operate your business. Now this is where you need to look at the rider for business interruption insurance. There usually is a catch, possibly fatal, that the coverage does not extend beyond that which is covered in the underlying policy.

If you run a restaurant and your property is damaged because of serious water damage because of heavy rains, your underlying policy covers the property damage and business interruption insurance would cover your losses due to lost revenue.

But in general if the losses are unrelated to property insurance such as coronavirus, then whether there is coverage depends on the specific policy language. The coronavirus is not unlike other losses or damage to property, such as fire or flood; nevertheless, there are still some arguments that you can make to try to prevail on the insurer to cover your losses. Each policy should be carefully reviewed with your small business lawyer.

Labor issues

The government is furiously trying to find ways for small businesses to retain their workforce. On March 18, 2020, the president signed into law legislation to provide paid sick leave to workers affected by the coronavirus.

Employers are to receive tax credits when workers receive paid sick leave because of the coronavirus. All employers with fewer than 500 employees must provide certain job protection and paid and unpaid leave for eligible employees.

This new legislation will need to be carefully analyzed to determine how it will apply to your small business.

Business loans and guarantees for small businesses

As I am writing this blog, Congress is debating an unprecedented stimulus package. Reports are that the Small Business Administration (SBA) will administer a whopping $300 billion for business interruption loans. This amount is over a tenfold increase from SBA’s flagship lending program in fiscal years 2017 and 2018. Stay tuned for the details.

Conclusion

We have explored only some of the numerous issues that will arise from the coronavirus health emergency. This crisis will spur numerous disputes and test many old theories of recovery. The courts are waiting to resolve these disputes once they re-open their doors.