Month: July 2014

Business Formation 101: What’s in a Name? (Not Much, If That’s All You Do)

Although most aspects of corporate law remain a mystery to non-lawyers (and to some non-corporate-lawyers), a few bits and pieces have seeped into the public consciousness. Regrettably, a few of those bits are wrong. One of the most common misconceptions I’ve come across as a corporate lawyer is the belief that registering the name of a new business – perhaps by “reserving” the name or filing for a “d/b/a” – is vitally important to the business’ success. Unfortunately, if you rely on a name registration to start operating your business, you’ll find that name isn’t worth much at all – because you’ll be conducting business illegally. The first (and I mean the first) step to create a new business entity is to register the company with the Secretary of State (this is variously also referred as “incorporating” or “organizing” the company). This is the only way to bring your business into official corporate existence. Usually you will do this in the state in which you will be doing business, but you can register your business in any state (and sometimes there are good reasons to register in other states). Depending on what kind of corporate entity you choose (a corporation, a limited liability company, etc.), registration will involve filing a document called Articles of Incorporation or Articles of Organization or a similar name. Once the Secretary of State accepts...

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Breaking Through the Legal Hold

Litigation is serious business – but it’s no excuse for excessive billing or endless paper trails. One vital component to effectively and efficiently manage a case is the Legal Hold. Whether you’re a private party or a large corporation, everyone involved in a legal matter will come face to face with Legal Holds. Unfortunately, they are underutilized and misunderstood, often at your expense. Simply put, a Legal Hold sets forth the obligations of a business or individual to preserve information that may be potentially relevant to either impending or ongoing litigation. In the past, clients would dig through their filing cabinet and hand over a box of musty records, illegible carbon copies and remnants of check stubs. Today’s “plugged in” technological climate has taken the preservation and collection of client materials to a whole new level. In 2006, the Federal Rules of Civil Procedure were amended to address the fact that vast amounts of evidence were being stored in electronic form. That evidence was dubbed ESI, or Electronically Stored Information. As a result, our rules were re-written to require that all evidence, including ESI, be preserved. ESI includes e-mails, word processing documents, spreadsheets, databases, calendars, voice mail, Internet usage files, and internal messaging systems, among other items. If it’s stored or communicated electronically, it’s discoverable in litigation. Thus the Legal Hold was born. Since 2006, State and Federal courts...

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Will All Those Who Are HIPAA Business Associates, Please Stand Up

The final HIPAA/HITECH Omnibus Rule (the “Rule”) implementing provisions of the Health Information Technology for Economic and Clinical Health Act (“HITECH”) amends and broadens the definition of “business associate.” While the basic definition has not changed – individuals and entities, not part of a covered entity’s workforce, that engage in various activities on behalf of the covered entity – like claims processing, billing, administration, data analysis, and practice management – are still business associates – the Rule expands this definition and specifically defines three categories of service providers as HITECH or HIPAA business associates. Pursuant to the Rule, a “business associate” is a person or entity that creates, receives, maintains or transmits protected health information to perform certain functions or activities on behalf of a covered entity. People and entities that provide patient safety activities are business associates as are the following three categories of service providers, specifically identified as business associates in the Rule: – Health information organizations/exchanges, e-prescribing gateways, and other people or entities providing data transmission services to a covered entity regarding PHI and that will have routine access to PHI; – People or entities that offer personal health records to individuals on behalf of a covered entity; and – Subcontractors creating, receiving, maintaining or transmitting PHI on behalf of business associates. Since certain subcontractors of business associates are now also business associates, all requirements and...

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