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.

Confidentiality agreements may not provide the security that you think

If you have started your business, you have no doubt been confronted with the ubiquitous non-disclosure agreements (NDAs). These agreements are not all created equal and you should review the NDA carefully and consult your small business lawyer to understand what they protect and what they don’t.

NDAs or sometimes known as confidentiality agreements can arise in numerous contexts. Maybe you are trying to keep an employee from disclosing proprietary information about your small business. Maybe you are creating a custom software solution for your customer, who doesn’t want to share any of its information without an NDA. Or possibly you are in the process of selling your small business to a competitor or large company, and you think that the NDA will provide a modicum of assurance that your precious list of customers will not get out.

Each context implicates different concerns and of course the biggest difference is whether you are the receiving party or the disclosing party. In this article, we will discuss some of the major points as you are reviewing a non-disclosure agreement.

Related articles:

Employers Stop! Non-Compete Agreements Prohibited

Selling a Small Business: Not as Easy as you Thought

Mutual or unilateral.

When I review a NDA that is mutual and applies to both parties equally, my antennae are much less sensitive. A mutual NDA (MNDA) covers both parties, regardless of whether they are receiving and disclosing confidential information. In general, what is good for the goose is good for the gander.

Usually a party is not going to insert obnoxious provisions in a MNDA, because that party will be equally bound by the MNDA. If the NDA is very broad, then it is equally broad with respect to both parties.

When I review a unilateral NDA, and my small business client is the receiving party of information from a large company, I try to be extra vigilant for “gotcha” provisions. I have seen large companies inserting some sneaky provisions, such as non-competes shrouded under the guise of a confidentiality agreement. To add insult to injury, the large company says that the agreement is “standard” and that if the small business wants to do business with the large company-disclosing party, the receiving party has to sign.

What the NDA protects.

One of the most important provisions is what is protected. There are generally two extremes. The most restrictive provision is that only certain specific documents are protected as confidential, usually if they are marked “Confidential.”

And on the other hand, there are the very broad NDAs which say to the effect anything that is exchanged between the parties is protected as confidential. These include even oral communications. If you are receiving party, then you may be disheartened to have one of these broad clauses such as all information reasonably be known as of a confidential natures will be treated as confidential.

Who has access to confidential information.

The party receiving confidential information would want to know with whom if anyone it can share the information, such as accountants, lawyers or other outside consultants? If you are allowed to share the information with a third party, there usually will be a provision that you as the receiving party must have a confidentiality agreement or confidential relationship with the third party to assure the confidentiality of the information.

A party disclosing confidential information will want to make this group as narrow as possible, such as only those persons with a “need to know.” If you are the disclosing party, you want to make sure you know who is responsible if there is a breach.

Who is bound by a confidentiality agreement.

A corollary concern is who is bound by the confidentiality agreement. Don’t assume that if a member of the board of directors signs a NDA, that the company will be bound. This was precisely the issue in Protégé Biomedical v. Z-Medica (D. Minn. 2019), in which the plaintiff was a company that wanted to place itself on the market. The point person for an interested buyer was one of the prospective buyer’s board members who signed an NDA. The plaintiff and prospective buyer participated in a conference call during which the plaintiff disclosed nonpublic information based on the NDA. The prospective buyer believed that it was not bound by the NDA and used the information learned during the discussions to create its own competing product.

The question was whether the board member signed the NDA in his personal capacity or on behalf of the prospective purchaser. Eventually the prospective purchaser settled, but not before the court criticized the plaintiff for relying on the board member’s status as a board member, without citing any “facts showing that the [prospective buyer] granted its board members authority to enter contracts on behalf of the organization.”

Obligation to destroy or return information.

In many agreements there is a requirement that the receiving parties destroy or return the confidential information. If there is a broad definition of confidential information such as “anything exchanged,” it may be difficult to return or destroy all of the electronic mail messages between the parties and this should be specifically addressed in the agreement.

Limitations on use.

There are almost always limitations on use of the information received, usually in connection with a certain purpose such as to explore business opportunities. In some agreements, especially where technical information is being exchanged, the receiving party should not be allowed to decompile, disassemble or reverse engineer any part of the information.

Standard of care.

There are varying standards for care of the confidential information. In some agreement, probably a minority, there is an absolute prohibition on disclosure. In most agreements, the receiving party has to comply with a certain standard such as a reasonable standard of care or the same care that the receiving party uses for its own confidential information.

Exclusions.

There are usually certain standard exclusions to the definition of confidential information, such as information generally known to the public; information independently developed by the receiving party without use of the disclosing party’s confidential information; or information received from a third party without breach of duty to the disclosure.

Term of the agreement.

Usually the term of confidentiality lasts for a period of 1-5 years, although for proprietary information, the term may be indefinite. The obligation to ensure confidentiality should survives any prior termination or expiration of the agreement.

Choice of law and forum.

The choice of law, which state’s law applies, may be important as some jurisdictions strictly construe NDAs and other don’t. But possibly even more important is the choice of venue if a dispute arises.

If you are a small business in Maryland, and you sign a NDA with a company in Texas, the Texas company may require Texas law and a Texas forum. Unless you have a very good case and lots of financial resources to defend a lawsuit in Texas, you will be inclined to try to resolve the matter short of litigation. For this reason, choice of forum can be a major subject of negotiations for a NDA because litigation is a major undertaking and costly.

For this reason, you don’t see these agreements being litigated very frequently unless you find one of two conditions is present. Either there is a lot of money in dispute or one of the parties has considerable resources to litigate, or both of these conditions. In the Protégé case, the sales price for the company was $23 million and the plaintiff had considerable resources, so it satisfied both of these conditions. For a small company, there is probably a third factor that may militate in favor of litigation. You have to be confident that you will win, usually because the other party has blatantly breached the NDA.

Small business attorney review of NDAs.

Even though they may not be heavily litigated, NDAs deserve considerable attention. Some clients especially those with especially sensitive proprietary information may ask their business attorney to review every NDA to assure that they are not signing something that may risk giving up their confidential information. Other small businesses may almost never contact their attorney to review a NDA. In either case, every business owner must treat NDAs as if their entire company depended on them, because sometimes they do.