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Feb 22, 2021 | By Massingill Staff | Read Time: 4 minutes | Business Law

Partnership Agreements in Texas: Why Using a DIY Template Is a Mistake

There are dozens of websites that offer legal document templates for low or no cost. The cost of a lawyer may tempt business owners to use these templates rather than hire legal counsel, especially when it comes to forming a simple business entity like a partnership. Unfortunately, however, using a legal DIY template can pose several problems. Because Texas partnership agreements are important documents, business owners should treat them with care. Finding and using a template online comes with a number of risks that could make doing so a costly mistake. Types of Texas Partnerships A partnership is one of the most basic types of business organizations. All you need to form one is two or more people engaged in a for-profit business. Legally speaking, a Texas partnership agreement is not strictly required. However, having this governing document is the best way to avoid internal issues as the business grows. There are several types of partnership, and each will require a slightly different partnership agreement. Texas partnerships can be General partnerships (GP), Limited partnerships (LP), Limited liability partnerships (LLP), and Limited liability limited partnerships (LLLP). Each type of partnership has different advantages. Generally speaking, which type of partnership you form depends on the role that each partner has in the business. Massingill Attorneys & Counselors at Law can help you decide which type of partnership suits your business the most. Problems with Using a Partnership Agreement Texas Template As mentioned above, using a partnership agreement template is not without risk. If you’re considering using a template for your partnership agreement, here are the issues you may run into and the reasons why we strongly suggest against them. Partnership Agreements Are Not “One Size Fits All” From one business to another, there are certain things that remain relatively similar. However, the governing documents for those businesses may be very different. This causes a problem when you consider that most DIY templates are designed to cover as many situations as possible. As a result, using a template partnership agreement likely means that you miss out on some of the fine tuning you may need. For example, a “partnership agreement” template may have some parts that apply to both a general and limited partnership; but at the same time, that single agreement will not work particularly well as either a Texas limited partnership agreement or general partnership agreement. Texas business owners should therefore be wary of how broad the templates are. You Won’t Know What’s Missing If you’re using a DIY template, then you probably don’t have much experience with these agreements to begin with. If that’s the case, then it is important to recognize that even if you understand what is in the template, you may know what is not in it. In other words, there could be crucial provisions missing that you are unaware of. This is one area where the benefit of an attorney cannot be overstated. By having an attorney draft your partnership agreement, you can rest assured that the agreement contains every part that it should. You Don’t Know Who Drafted the Template Even on websites that appear reputable, there is no guarantee that a lawyer or legal professional drafted the template. In fact, in many cases it is just as likely that someone drafted the partnership agreement Texas template while referencing another online template. When that happens, misinformation or poor drafting can propagate from one template to the next if various sites all use each other as a source. Unfortunately, there’s simply no way to know for sure. You Won’t Receive the Personalized Advice or Drafting a Lawyer Provides When it comes to drafting a limited partnership agreement, Texas business attorneys do more than just write out the document for you. Remember that one of the reasons a lawyer is expensive is the knowledge and training they have. Drafting any kind of business document, whether it’s a contract or a partnership agreement, is a complex process. Consequently, attorneys receive training to spot relevant issues and understand the complexity of a given legal situation. If your partnership is unique in some way or if you have specific ideas about the direction of the business, a lawyer is available to discuss those ideas with you in real time. An attorney can provide you with a custom agreement tailored specifically to your needs. While you may save some money, you won’t have access to any of that added value by using a template. You Might End Up Needing a Lawyer Anyway There are two reasons why a business owner might end up hiring a lawyer after using a template. First, businesses frequently need legal help with a variety of issues unrelated to their formation. For example, a partnership may need help negotiating a contract with another business. If you’ve already hired a lawyer to help you draft your Texas partnership agreement, then it will be that much easier if you need other legal help later on. As an added bonus, a lawyer who has been with you from the start will be more familiar with you, your business, and your goals. This can allow them to provide more efficient and effective service. More significantly, you may end up hiring a lawyer because of issues with the partnership agreement template you used. If the agreement is drafted improperly, you may run into conflicts with your business partner down the line. Depending on what the problem is, you may end up paying more than if you simply hired a lawyer in the first place. Templates Are Less Flexible Than You Think Partnership agreement templates look like a good option because of how easy they seem to be. After all, what is simpler than filling in the blanks? Unfortunately, if there are larger changes you want to make, doing so may render the whole thing unusable. While this is not universally true, some template agreements may be drafted such that changing one provision has an effect on several others. Without legal training and...

Feb 22, 2021 | By Massingill Staff | Read Time: 4 minutes | Business Law

Employment Contracts in Texas: Mistakes for Small Business Owners to Avoid

Contracts exist to help businesses and individuals set expectations for their professional relationship. Texas employment contracts are no different and are an important part of any small business. When drafting an employment contract, Texas businesses must be careful. Not everything that a business owner may want to include is enforceable. Therefore, having a basic understanding of Texas employment contract law is crucial, especially if drafting an employment agreement yourself. Texas Employment Agreements: Overview Texas, like most states in the U.S., is an “at-will” employment state. With at-will employment, the employee or employer may terminate the business relationship without notice at any time. They may do so for no reason or any reason not prohibited by law (for example, it would be illegal to fire someone for a discriminatory reason). When there is an employment agreement, however, the parties will instead be bound by the terms they agree to. Many businesses use some sort of employment agreement when hiring a new employee. Doing so ultimately protects both parties by clearly setting the ground rules for the employment. With that in mind, here are some common pitfalls small business owners may make in their contracts and how to avoid them. Overly Broad Non-Competition Clauses This is perhaps the most significant mistake employers make with respect to their employment agreements. Particularly in competitive industries, business owners often want to restrict their employees’ ability to work for competitors. However, Texas law places limitations on these provisions. Specifically, a agreement not to compete must be reasonable with respect to The time it remains in effect after the termination of employment; The geographic area (like a state or a county) to which the non-compete applies; and The scope of the activity covered by the non-compete. If a contract fails to be reasonable in any of these ways, a court may find it unenforceable. This may be a problem for businesses that use the same non-competition clause or agreement for all their employees. For example, a non-compete probably could not restrict a low-level sales rep the same way it could a co-owner or high-level executive. Accordingly, small businesses are better off providing a fair and balanced non-compete that a court will uphold. Business attorneys familiar with Texas employment contract law can help you draft an appropriate non-compete to protect your business. Non-Compete vs. Non-Solicitation Non-compete clauses often include a “non-solicitation clause.” While non-competes cover an employee’s competition with the business, non-solicitation clauses protect a business’s existing clients and employees. While not always strictly necessary, non-solicitation agreements are useful in industries where a former employee may try to “poach” clients or coworkers from their former employer. Ambiguous Conditions for Termination Clarifying the events or conduct for which the business may fire someone is a significant part of a well-drafted contract. Not only does it make clear to the employee what kind of conduct they should avoid, it can protect your business if an employee challenges their termination. Texas businesses have many options when it comes to termination clauses and what they include. If you’re unsure how to draft an employment termination clause, our Texas business law attorneys can help. Unclear Descriptions of Duties A common mistake business owners make is not including a sufficient job description in their Texas employment contract. While it may seem unnecessary if both you and your future employee understand what will be expected of them, clearly defining their duties can avoid headaches later on. In addition, being absolutely clear about the scope of an employee’s job can protect the business from liability later on. Under the doctrine of “respondeat superior,” courts may find an employer liable for the acts of their employees working within the scope of their employment. Whether respondeat superior applies depends on the specific facts of a given case; however, a clear job description in the employment agreement may make that determination easier if necessary. Missing or Incomplete Confidentiality Clauses When it comes to an employment agreement, Texas business owners may not always think to include a confidentiality clause. While not all businesses will need one, business owners should consider it if the employee will handle any sort of sensitive information. Texas employment agreements with a confidentiality clause should be sure to address confidentiality both during and after employment. Employees may be clear on the expectation of confidentiality while employed but may not understand their responsibility when they leave. Texas employment agreements should therefore include information about how long the confidentiality will last after an employee leaves. If you’re concerned about your employees handling sensitive information, we can help you draft a strong confidentiality agreement. Minimal Compensation and Benefits Information In the context of an employment contract, Texas businesses have the upper hand when it comes to bargaining power. As a result, employers can take advantage of opportunities to make new employees more comfortable with their position within the company. One such opportunity is clearly defining any offered compensation and benefits in the employment agreement. Doing so allows the business to explicitly establish the base salary or wage, insurance options, and how the business handles holidays and vacation time. As an added bonus, this may also allow a business to protect itself from challenges by an employee about what the company offers. Unclear Drug Testing Policies Not all employers require drug testing. But when they do, making that clear is important. Because Texas has a medical marijuana program, employees may be under the impression that their use of medical marijuana is shielded from any employer drug test. However, this is not necessarily the case. Explaining drug testing policies in the employment agreement can help businesses avoid training an employee who may take issue with those policies. Ready to Draft Your Texas Employment Contract? At Massingill Attorneys and Counselors at Law, we believe in making sure our clients understand the legal answers to their questions, no matter how complex. If you’re ready to take your business to the next level with a robust employment agreement, we can help. Contact us today...

Dec 18, 2020 | By Massingill Staff | Read Time: 4 minutes | Healthcare Business Law

Physician Employment Contracts and Your Healthcare Business

Over the years, doctors signing physician employment contracts with small practices has become increasingly commonplace. Retaining an employment law attorney’s services to identify the obligations and expectations of either party to physician employment agreements can minimize future disputes. What Is a Physician Employment Contract? A typical physician contract agreement dictates the relationship between a physician and their employer. These employment contracts provide provisions outlining the terms of employment, such as compensation, job requirements, benefits, termination, non-compete clauses, and professional liability insurance. The terms of all physician employment contracts are negotiable and ensure the final agreement is fair to both parties. Important Terms in a Physician Employment Contract There are several typical provisions you should consider when drafting a physician employment contract. Duration Physician employment contracts can specify the length of time the physician will provide services for your business. Additional terms may address other considerations relating to the duration of a physician employment contract, such as whether the term can be automatically renewed or what notice is required for cancellation. Services Ensure that the contract includes a detailed description of the expectations of the physician. This may include details such as The type of medicine the physician will practice, The number of hours the physician must work each day or week, and The physician’s on-call obligations. It may also address whether you will expect the physician to undertake outpatient care or administrative duties. Compensation What will be the compensation for the physician you hire? Compensation elements in physician employment contracts may cover a few areas. Base compensation Base compensation is a guaranteed salary. However, base compensation is a negotiable element of physician contracts. Negotiations regarding base compensation must always consider state and federal compliance, industry pay standards, and inflation if the contract reflects multiple employment years. Productivity incentives Productivity incentives base compensation on productivity. These types of incentive clauses in physician contracts must include a clearly defined productivity formula for calculating payment. Productivity measurements must consider the equitable scheduling of patients and not negatively impact the quality of patient care. Benefits You may include benefits in your physician contract, such as: Retirement, Health insurance, Disability, Reimbursement for travel or continuing medical education, Paid time off, Vacation, and Sick pay. Depending on the physician you plan to hire, you may wish to include these types of benefits in your physician employment contract. Other benefits Other types of bonuses might include student loan reimbursement, reimbursement for relocation expenses, severance pay, and many others. These types of benefits may incentivize employment with your business. Buy-in clause Buy-in clauses provide physicians the opportunity to buy into your business. Determining whether or not to include this type of clause in your physician employment contract requires careful consideration of employees’ buy-in parameters and requirements. Physician employment contracts may vary; however, clearly defining compensation details assures clarity between you and your employee. Termination Rights Every contract should include a termination clause outlining the terms and conditions of terminating employment. For example, early termination may be permitted “for cause” or “without cause.” Circumstances prompting early termination may include: Revocation of medical license, Malpractice, Drug use, Violations of the physician contract, and A felony conviction. Additionally, without-cause provisions may provide that either party may terminate the agreement if sufficient notice—for example, 60 days—is provided. Professional Liability Insurance Typically, the employer will insure the physician employee with professional liability insurance. Professional liability insurance considerations to address in the employment contract might include the following: Type of insurance, The amount of coverage, and Whether coverage continues after the physician leaves employment. Since both the employee and the physician are liable to a patient, carefully review professional liability insurance obligations. Non-Compete Clause A non-compete clause in a physician employment contract limits an employee’s ability to work elsewhere after employment termination. Special conditions exist for valid non-compete clauses in employment contracts, including the following: They must be limited to a reasonable geographic area; The scope of the restrictions must be reasonable; and Their applicability must be limited to a reasonable time frame. An experienced business law attorney provides industry-specific guidance on non-compete clauses in physician employment contracts. Dispute Resolution While disputes between parties to a contact may resolve in court proceedings, you may consider including an arbitration clause in your employment agreement. Arbitration is generally a less expensive and more efficient resolution to disagreements than litigation. An attorney can help you determine whether an arbitration clause is appropriate for your physician employment agreements. Why Should Employers Have Their Contracts Reviewed? Retaining a skilled business attorney’s services to review your physician employment contract protects you and your business. Failure to properly identify responsibilities and obligations in a physician employment agreement can result in disagreements and, potentially, litigation. It’s important to critically analyze compliance with federal and state laws to prevent exposure to potential violations. Also, an attorney may provide insight as to the following areas: Fair market value compensation, Creating and reviewing compensation plans, Non-compete clauses, and Dispute resolution and litigation. The attorneys at Massingill Attorneys and Counselors at Law ensure you create a comprehensive physician employment contract protecting your business interests and interests. Employers need to address these and multiple other issues regarding physician employment contracts before offering an employment contract. Why Massingill Attorneys and Counselors at Law? The attorneys at Massingill Attorneys and Counselors at Law possess extensive experience in business and healthcare law across Texas. We understand the expense and stress resulting from a weak contract. That’s why we draft rock-solid agreements for our clients, protecting you and your business from future litigation. Additionally, we revise existing contracts and review new contracts to remedy gaps in potential liability. Massingill Attorneys and Counselors at Law provides superior legal services to clients for reasonable fees. We understand how important your business is to you. Contact us today to discuss questions regarding your physician employment contract.

Dec 17, 2020 | By Massingill Staff | Read Time: 5 minutes | Business Law

LLC Formation in Texas: 10 Reasons Hiring a Lawyer Beats DIY

One of the first significant decisions made as a small business owner is choosing the right type of entity for your business. LLCs or limited liability companies enjoy increasing popularity in Texas. LLCs in Texas offer the protections of corporations with the flexibility of a partnership. Also, LLCs are not subject to the in-depth filing requirements demanded of corporations. Why Hire a Lawyer to Form Your Texas LLC? Although an attorney is not required, starting an LLC without an attorney may result in complex legal issues that may end up costing your LLC a significant expense. There are many reasons why it’s beneficial to hire an experienced small business attorney in forming your LLC in Texas. Setting up an LLC requires numerous steps. Additionally, as your LLC business progresses, legal issues may continue to arise. Retaining a small business attorney’s services limits the possibility for your LLC to engage in litigation over avoidable conflicts. Here are some of the things an LLC formation attorney can do for you. 1. Set You Up for Success An attorney works to ensure your LLC begins on the right foot. Through consultation during the LLC formation process, an experienced business attorney reviews your risks, future challenges, and goals as your venture commences. 2. Correct Mistakes A qualified business attorney works to correct any mistakes when creating an LLC. Starting a business is a stressful yet exciting event. As you market and establish your business, keeping tabs on potential legal issues may be furthest from your mind. Through extensive discussions with your business attorney, you may review the details of your LLC Operating Agreement and quickly spot any gaps in liability that may exist. Furthermore, addressing unclear positions, employee responsibilities, and other information avoid confusion down the road. As your LLC gets off the ground and begins to succeed, the last thing any business owner needs is the threat of litigation to slow their momentum. A business attorney remedies these possible points of conflict before they become an issue. 3. Avoid Legal Problems Even if in agreement, LLC members may experience other legal problems as your business grows. Disagreements may arise when one member of the LLC fails to perform obligatory tasks. Additionally, a Texas business attorney can assist with issues facing your business as it grows. For example, drafting company policy handbooks are essential to avoid sexual harassment, wrongful termination, or discrimination lawsuits. Qualified business attorneys equip their clients with the tools to prevent liability under the multitude of federal and state laws. 4. Protect Your Interests Initially, you may not understand the legal requirements of how to create an LLC. For example, when forming an LLC in Texas, the LLC name must contain the words “limited liability company,” “limited company,” or the abbreviations “LLC,” “L.L.C.,” “LC,” or “L.C.” Additionally, your LLC name must be distinguishable from other business entities on file with the Texas Secretary of State. If your LLC has more than one member, you must obtain a federal Employer Identification Number (EIN) with the IRS. The EIN identifies you for federal tax purposes. Retaining the services of an attorney ensures prompt handling of these critical tasks. 5. File Required Paperwork Forming an LLC in Texas requires filing a Certificate of Formation for a Limited Liability Company. This certificate must include the following information: The LLC’s name, The name and address of the registered agent for service of process, Whether the LLC is member-managed or manager-managed, The names of each member or manager, A general statement of purpose for the LLC, The name and address of the LLC organizer, The effective date of the certificate, and The signature of the organizer. Texas permits the online filing of the Certificate of Formation for a Limited Liability Company for a fee of $30. A Texas LLC does not require an operating agreement. However, creating an operating agreement is strongly advised. The operating agreement sets out the rights and obligations of members or managers of the LLC. Additionally, it preserves your limited liability by showing that the LLC is indeed a separate business entity. Hiring an attorney to draft a concrete operating agreement reduces the opportunity for disagreements and conflict between the LLC members or managers. Additionally, a well-crafted operating agreement includes essential provisions such as buy-out clauses and termination clauses. Additionally, Texas LLC law requires filing an annual franchise tax report with the Texas Comptroller. Missing these filings can affect the operation of your LLC through the imposition of penalties. Extensive delays may result in the automatic dissolution of your LLC. 6. Tax Advice Taxation of your LLC occurs at local, state, and federal levels. An attorney educates you on the most advantageous election for tax purposes. Avoiding double taxes, delinquent taxes, and penalties should be a priority for your LLC. These unnecessary and avoidable expenses hurt the profitability of your company. 7. Protect Intellectual Property Intellectual property includes product designs, inventions, trademarks, business services, trade secrets, client lists, and original works. All intellectual property adds value to your business and gives your Texas LLC a competitive advantage. It is wise to consult with an attorney depending on the type of intellectual property connected to your LLC. For example, federal law requires the filing of trademarks, copyrights, and patents to obtain certain protections. Additionally, an experienced business attorney works to preserve your intellectual property rights, thereby providing vital protection for your business. 8. Prepare Company for Audits There may be instances where your LLC faces audits. Audits of your LLC can occur at any time. During an audit, parties may investigate the financial records of your LLC. Additionally, audits may investigate company policies and procedures of the LLC. As your LLC undergoes the process of an audit, your business attorney guides you through the process and advises how best to protect your interests. 9. Contract Review As your Texas LLC grows, you may consider hiring employees. Drafting employment contracts with clearly defined terms and conditions ensures your business is not subject to litigation down...

Mar 25, 2020 | By Massingill Staff | Read Time: 2 minutes | Business Law

Commercial Leases and COVID-19: What You Need to Know

The novel coronavirus pandemic is making life difficult for small business owners. Many of our clients are struggling to manage newly-remote employees who have been forced to work from home due to shelter-in-place orders, applying for emergency financing, weighing employee layoffs, and fighting to keep their doors open. For many businesses, monthly rent is the largest line item in the budget. One of the most stressful and complex problems these business owners are facing is how to meet their commercial lease obligations as their business operations are crippled by the pandemic. STRUGGLING BUSINESS OWNERS SHOULD ADDRESS THIS PROBLEM HEAD ON, AND QUICKLY. WAITING WILL ONLY MAKE THINGS WORSE. If you find yourself in a similar situation, here are a few things to consider… 1. Look for a force majeure provision in your lease. “Force majeure” is a French term for “superior force” used to describe a type of contract provision that excuses nonperformance of a contractual obligation if the nonperformance is caused by certain events beyond the party’s reasonable control (floods, earthquakes, hurricanes, tornadoes, acts of God, etc.). Force majeure provisions are fairly common in commercial leases, so you should review your lease to see if it includes such a provision. Depending on the wording of this provision, you may be able to avoid certain lease obligations during the current crisis. An attorney can help you decipher your lease agreement and explain your options. 2. If your lease does not include a force majeure provision, certain common law doctrines (impossibility or impracticability) may provide some relief. These are complicated, so you’ll need to contact an attorney for assistance. 3. Finally, you might opt to negotiate temporary rent reductions or abatements with your landlord. During the financial crisis of 2008-2009, landlords commonly offered significant concessions to keep tenants in place because doing so was preferable to engaging in mass evictions. Landlords are business owners too. They’ll be making hard choices in the coming months just like their tenants, and it may be possible to negotiate a win-win lease “workout” that benefits all parties. It’s possible to do this on your own, but an attorney experienced in commercial lease negotiation may offer the best solution. IF YOU HAVE QUESTIONS ABOUT YOUR LEASE OR NEED ASSISTANCE WITH A COMMERCIAL LEASING NEGOTIATION, GIVE US A CALL AT (512) 410-0343.

Mar 24, 2020 | By Massingill Staff | Read Time: < 1 minute | Healthcare Business Law

Texas Chiropractors: Protect Your Practice During the COVID-19 Pandemic

On Monday, March 23, Texas healthcare attorney Joshua Massingill joined Darla Sees, an organizational development and human resources consultant, in a webinar hosted by the Texas Chiropractic Association: Protecting Your Practice During the COVID-19 Pandemic. The webinar featured important legal, financial, and human resources updates related to the novel coronavirus crisis and is essential viewing for Texas chiropractors. Also, the Texas Chiropractic Association maintains an up-to-date COVID-19 resource page, which doctors are encouraged to visit frequently for important updates and helpful resources. Finally, doctors should stay current by visiting the Texas Board of Chiropractic Examiners (TBCE) web site. TBCE continues to post helpful information for its licensees during this pandemic. If you have questions about complying with state or local rules related to COVID-19, contact an attorney.

Feb 22, 2020 | By Massingill Staff | Read Time: 3 minutes | Business Law

Five Things to Know Before Selling Your Business

EDITOR’S NOTE: THIS IS A GUEST POST BY JOHN FINCHER, A CERTIFIED BUSINESS INTERMEDIARY IN AUSTIN, TEXAS. JOHN IS NOT AN ATTORNEY, BUT WE ASKED HIM TO SHARE SOME THOUGHTS WITH OUR READERS WHO MAY BE CONTEMPLATING SELLING A BUSINESS. CLICK HERE TO LEARN MORE ABOUT JOHN. 1. SELLING A BUSINESS IS A COMPLEX PROCESS AND CAN TAKE 9 MONTHS OR LONGER Selling a business is not like selling a house or any other personal property you that you own. I always say, “Selling a business has a lot of moving parts.” Those moving parts require the guidance of someone who is experienced in the process and can effectively move the deal from step-to-step. Planning is step number one and includes understanding the owner’s goals for a transaction, your company value, and signing an engagement agreement with a Sell-Side M&A Advisor. Step number two is providing the information requested from your Sell-Side M&A Advisor to prepare a Confidential Business Memorandum (CBM) with many details about your company, the market, your competition and the financials recast to show the true earnings of the business. A marketing plan is activated and buyers are contacted and required to sign a Non-Disclosure Agreement (NDA) before being presented with the CBM. On the third step, once interested buyers are located, there is a flow of additional information requested and questions answered. There are site visits after hours or on weekends to protect confidentiality that the business is for sale. A Letter of Intent (LOI) is negotiated with a buyer in this deal making stage. Finally, there is a move toward a Close that includes coordinating all of the due diligence requested from the buyer that includes your Sell-Side M&A Advisor setting up a secure data room that the buyer can access. Your Sell-Side M&A Advisor will work closely with your transactional attorney to resolve any open issues as your attorney negotiates and finalizes a Definitive Purchase Agreement. These four steps that I’ve briefly outlined require approximately nine months of time, which is the average, although deals have concluded in shorter time-frames and longer. 2. KNOW THE RIGHT TIME TO SELL When is the right time to sell your business? It would be logical to say that the right time to sell is when your business is worth the most money or selling it will achieve your financial goals. The short answer is to sell when your business has at least three years of upward trend in revenue and profitability and certainly before the next downturn, unless your business is recession proof. However, some sellers have to sell rather than want to sell. I call these the five bad D’s – Death, Divorce, Disease, Downturn and Disgruntlement and they don’t have a choice as to the timing. 3. USE YOUR LEGAL AND ACCOUNTING PROFESSIONALS TO CLEAN UP THE BUSINESS PRIOR TO THE SALE Cross your t’s and dot your i’s with expert legal advice to make sure your business is saleable from a legal perspective and with your CPA to make sure your business is saleable from an accounting perspective. Are your contracts assignable? Is your lease? Have you kept the proper annual shareholder meeting minutes if required by your legal entity? Do you have any pending lawsuits or legal matters that need settling? Do you have any regulatory or environmental issues? Do you have any tax liabilities that may need the help of your CPA professional to solve? Are your books and records accurate and will they hold up during due diligence? What is a likely tax scenario of how much you will owe upon the sale of your business and is there a compelling legal reason or tax reason to sell stock instead of assets? 4. BE MENTALLY PREPARED Are you willing to think win-win with a buyer? There are several ways to structure a sale and some will benefit the Buyer but not the Seller and others will do just the opposite. There will be much to negotiate throughout selling a business and oftentimes you will need to move toward the middle as will the Buyer. Contain your ego and emotion and use your Sell-Side M&A Advisor as an emotional buffer when necessary between you and the Buyer. Keep in mind that you will need a good relationship with the Buyer after the sale as there is much to transition from one owner to the next after the Close. 5. KNOW YOUR PATH AFTER THE SALE Know what you are going to do, after selling your business. Some people want to stay engaged with the business in some capacity and others are ready to walk away. Do you have other interests and passions to pursue that will give you purpose? John Fincher is a Certified Business Intermediary with Corporate Investment in Austin, Texas. He is a former entrepreneur who has bought, sold and merged companies and has been working for over twelve years representing sellers in M&A transactions.

Oct 15, 2019 | By Massingill Staff | Read Time: 4 minutes | Healthcare Business Law

Texas Stem Cell Law Update

THE FOLLOWING IS AN EDUCATIONAL ARTICLE INTENDED TO HIGHLIGHT RECENT DEVELOPMENTS THAT MAY BE OF INTEREST TO PHYSICIANS AND OTHER HEALTHCARE PRACTITIONERS. IT IS NOT A LEGAL OPINION AND SHOULD NOT BE CONSTRUED AS LEGAL ADVICE. THE HEALTHCARE INDUSTRY IS CONSTANTLY CHANGING SO FACTS, CIRCUMSTANCES, RULES AND REGULATIONS MAY CHANGE THAT WOULD ALTER THE ANALYSES BELOW. In recent weeks, the Texas Medical Board (“TMB”) has notified several physicians of complaints it has received alleging that the physician has been “aiding/abetting the unlicensed practice of medicine.” Specifically, the complaints allege that the physician is supervising midlevel practitioners (APRNs/PAs) who are “administering stem cells illegally in violation of HB 810” (emphasis added). TMB, like all licensing boards, has a duty to investigate complaints that are filed against its licensees. After receiving a complaint, TMB notifies the physician identified in the complaint, who is then given an opportunity to “furnish a narrative” responding to the allegations. Many complaints are dismissed at this stage, without TMB having ever initiated a formal investigation. In other words, these complaint letters do not necessarily indicate discipline is forthcoming. Nevertheless, they are a troubling development. The most pressing question is whether TMB’s reference to midlevel practitioners “administering stem cells illegally in violation of HB 810” is a mere restatement of the complaint it received (which is certainly possible) or whether it is telegraphing an aggressive new interpretation of HB 810 as precluding the delegation of all “stem cell” treatments. The legislation referenced in TMB’s complaint, HB 810, was passed by the 85th Texas Legislature and became effective on September 1, 2017. This bill – nicknamed “Charlie’s Law” – concerned “investigational stem cell treatments” and specified that patients are only eligible to receive such treatments if they have “a severe chronic disease or terminal illness” and their physician has “considered all other treatment options currently approved by the [FDA] and determined that those treatment options are unavailable or unlikely to alleviate the significant impairment or severe pain associated with the severe chronic disease or terminal illness” and if their physician recommends or prescribes the treatment in writing. Tex. Health & Safety Code § 1003.053. This statute defines “investigational stem cell treatments” as “adult stem cell treatment[s] that [are] under investigation in a clinical trial and [are] being administered to human participants in that trial [and have] not yet been approved for general use by the [FDA].” Tex. Health & Safety Code § 1003.051 (emphasis added). Texas stem cell laws are not a model of clarity. Nevertheless, it has been widely presumed that HB 810’s onerous restrictions do not apply to the types of “stem cell” products most commonly used in regenerative medical clinics and integrated medical-chiropractic practices, which are regulated by the U.S. Food and Drug Administration (“FDA”) as Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps) under Section 361 of the Public Health Service Act (PHSA). There are several reasons to conclude that HB 810 does not apply to these so-called “361 products.” First, HB 810 specifically refers to treatments “not yet approved” by the FDA. 361 products do not require FDA approval; they must simply be registered with the FDA and comply with infection-control procedures. And because clinical trials are not required for 361 products, it seems unlikely such products would meet the definition of “investigational stem cell treatments” in HB 810. Second, it is abundantly clear that the purpose of Charlie’s Law was to circumvent FDA restrictions and thereby increase patient access to certain stem cell treatments. Again, the particular FDA restrictions at issue in the legislation do not even apply to 361 products and interpreting the law in this way would necessarily decrease patient access to such products. Third, TMB published a bulletin in May 2019 lamenting “concerns, highlighted by several recent news stories, related to a lack of proper supervision while patients are receiving treatment for certain cosmetic procedures and purported stem cell treatments.” Dr. Sherif Zaafran, M.D., FASA, Message From the TMB President: Mental Health Questions and Supervision Issues, TMB Bulletin, May 2019, at 2 (emphasis added). TMB’s concern relating to improper supervision, leads one to assume it believes that the procedure is, in fact, delegable under proper supervision. If HB 810 applies to every type of “stem cell” product, the use of all such products is restricted to physicians only, and it would therefore be illegal to delegate the administration of any “stem cell” product to a midlevel practitioner. If that were the case, it seems unlikely that TMB would suggest it is concerned about “a lack of proper supervision” when such treatments are delegated. Fourth, 361 products have been in widespread use in Texas and are commonly administered by midlevel practitioners. HB 810 became effective nearly two years ago, and until recently it did not appear that TMB was concerned about the legality of this arrangement. In short, a plain reading of the statute, a basic understanding of the legislative intent of Charlie’s Law, the recent statement published by TMB in its May 2019 bulletin, and common sense all suggest that HB 810 does not preclude a physician from delegating the administration of 361 products to midlevel practitioners. However, it is possible that TMB and/or a reviewing court might disagree with this analysis and subject delegating practitioners to discipline. Time will tell.

Aug 8, 2019 | By Massingill Staff | Read Time: < 1 minute | Business Law

Labor Poster Scams

Forming a business entity provides business owners with many advantages: liability protection, tax flexibility, access to capital, and more. But there is at least one downside: occasional junk mail. If you’ve recently incorporated, an “Important Notice” may arrive in an official-looking envelope informing you that you must post various labor notices in your workplace or face fines. Conveniently, they include an order form so you can purchase these forms immediately. Many of these letters are designed to mimic government notices and are intentionally deceptive (and possibly illegal). While it is true that some businesses are required to post certain notices for employees, companies that do not have employees do not have posting requirements. And for companies with employees, all of the required posters are available for free at twc.texas.gov. If you are unsure which posters you need, the U.S. Department of Labor has a Poster Advisor that will provide you with a list of required posters applicable to your business. Don’t be a victim. If you are unsure whether a mailing you have received is an official notice or misleading scam, contact an attorney.

Mar 29, 2018 | By Massingill Staff | Read Time: 3 minutes | Healthcare Business Law

Sex and Subluxation: A Legal Guide for Texas Chiropractors

Engaging in sexual activity with patients is, as we say in the legal field, a very bad idea. Sexual misconduct can trigger severe disciplinary action by the Texas Board of Chiropractic Examiners (“TBCE”) and civil liability for damages. Doctors who behave responsibly with patients can nevertheless face liability for sexual discrimination and harassment in the workplace. And even doctors whose personal conduct is unassailable can face liability for the actions of their employees. The risks are real. Learn how to protect yourself. SEXUAL MISCONDUCT WITH PATIENTS TBCE Rule 78.1 prohibits sexual misconduct with a patient within the chiropractic/patient relationship. “Sexual misconduct” is defined broadly to include both sexual intimacy (any conduct that is intended to cause or reasonably interpreted to cause stimulation of a sexual nature) and sexual impropriety (any behavior, gestures, statements, or expressions through any medium of communication towards a patient which may reasonably be interpreted as inappropriately seductive, sexually suggestive or demeaning). The following are examples of prohibited sexual intimacy: sexual intercourse; genital contact; touching breasts; masturbation; and any bodily exposure by licensee of normally covered body parts. The following are examples of prohibited sexual impropriety: inappropriate sexual comments about or to a patient or former patient including sexual comments about an individual’s body which demonstrate a lack of respect for the patient’s privacy; requesting unnecessary details of sexual history or sexual likes and dislikes from a patient; making a request to date a patient; and initiating conversation regarding the sexual problems, preferences, or fantasies of the licensee. There is one affirmative defense to disciplinary action enshrined in rule – if the patient is “no longer emotionally dependent on the licensee when the sexual impropriety or intimacy [begins] and the licensee [terminates] his or her professional relationship with the person more than three months before the date the sexual impropriety or intimacy [occurs].” Notably, the following excuses are not a defense to disciplinary action: the patient’s consent; the activity occurred outside professional treatment sessions; or the activity occurred off the premises regularly used by the licensee for the professional treatment of patients. HOW TO PROTECT YOURSELF FROM PATIENT COMPLAINTS Thoughtful, proactive behavior can minimize your risk of patient complaints. Communicate clearly with your patients before performing procedures in sensitive areas. Most complaints allege unwanted and inappropriate touching of breasts, buttocks, or genital areas. Before palpating pectoral muscles or lymph nodes, or treating iliopsoas muscles or anterior hip flexors, tell the patient what you’ll be doing and why. Consider having a chiropractic assistant present when treating patients of the opposite sex. If you don’t have a chiropractic assistant, consider leaving the exam room door open. Do not ask patients to disrobe unless it is absolutely necessary. If you determine that a patient should disrobe, Rule 78.1 (1)(E) obliges chiropractors to “respect a patient’s dignity at all times and […] provide appropriate gowns and/or draping and private facilities for dressing and undressing.” SEXUAL HARASSMENT In 2017, the Equal Opportunity Employment Commission (“EEOC”) recovered sexual harassment damages totaling over $46 million for aggrieved employees – and this amount only includes cases that were settled with the EEOC and does not reflect monetary benefits obtained through litigation or other means. Put simply, sexual harassment is a major problem for employers. There are two types of sexual harassment: quid pro quo harassment (in which the employee faces a negative employment consequence for refusing to submit to a harasser’s demands) and hostile work environment harassment (gender-based conduct that is pervasive or severe and interferes with an employee’s work performance). Even jokes about exchanging sexual favors for a raise have led to employee complaints against chiropractors for quid pro quo harassment. And doctors may be liable for hostile work environment harassment to an employee even if he/she was not the target of the inappropriate behavior. HOW TO PROTECT YOURSELF FROM PATIENT COMPLAINTS In general, doctors should be wary of the following: Making disparaging comments to women; Displaying sexually explicit or female-objectifying materials in the office; Showing employees and co-workers inappropriate images on your phone or other device; Using sexually explicit language in the office; Making inappropriate comments to female employees about their appearance (e.g., telling a female employee that she “has a good body”); Staring at employees in a sexually suggestive manner; Asking sexual questions of an employee; Inappropriate touching, including pinching, patting, rubbing, or purposefully brushing up against another person; and Making offensive comments about someone’s gender or sexual identity. CONCLUSION In the wake of recent scandals in Hollywood and the burgeoning #metoo movement, our culture is reconsidering the “rules” of workplace behavior. Actions that may have seemed appropriate in previous eras are now considered taboo. Doctors should exercise caution to avoid liability for sexual harassment. Sexual misconduct – it goes without saying – should be strictly avoided. Doctors should familiarize themselves with TBCE’s (justifiably) broad definition of the term and employ the common-sense strategies in this article to mitigate the risks of patient complaints.

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