Detailed Description of Services:
Commercial, International and Employment Contracts
Every business, no matter its size, product mix or scope of operations, needs well-drafted written contracts for several reasons, including:
- to state the duties and responsibilities of the businesses or individuals entering into the contract, referred to as the “parties.”
- to describe the products and/or services being sold or purchased and the payments therefore or the financing arrangements being entered into.
- to allocate the risks involved in the transaction; and
- to be able to enforce the parties’ obligations in a judicial proceeding or non-judicial dispute resolution process.
Commercial contracts typically involve the sale of goods or services or financing arrangements. International contracts are a sub-set of commercial contracts which can involve additional risks because of multiple jurisdictions, distance, cultural differences, and a greater risk of damage to goods in transit and often more difficult collection of receivables.
Employment contracts are very important for businesses even for what are known as “at-will” employees. Otherwise, a business can lose valuable intellectual property rights. At the Hoeller Law Firm, our philosophy is to negotiate contracts that are clearly written and comprehensive without unneeded boilerplate. The contracts are protective of our clients but at the same time commercially reasonable for both parties. Contracts that are one-sided do not lead to business success; more often than not, they end up in litigation.
We have extensive experience in negotiating and drafting successful contracts in multiple industries, with numerous Fortune 500 companies, middle market companies and entrepreneurial start ups.
Software, IP and Brand Licensing
Licenses are a specialized form of contracts. In the typical business contract, physical goods or services are exchanged for a purchase price. The purchaser then “owns” the goods or receives the services and pays the agreed upon amount for them.
In licensing transactions, the “licensor”, which is the owner of the software, other intellectual property such as a trademark or patent (“IP”) or a brand like a cartoon character, does not transfer ownership. Instead the licensor allows the “licensee” to merely use the software, IP or brand under specified conditions.
For example, an original equipment manufacturer (“OEM”) of smart phones needs to license numerous pieces of software from various software designers/vendors – otherwise the phone will not work. The OEM does not gain ownership of the software embedded in the phones. Rather the software vendors grant the OEM a license to integrate their software into the operating system of the phones.
An example of a trademark license: the National Hockey League may decide to grant a license to a manufacturer of hockey equipment to place the NHL logo on every piece of equipment for a specified period of time and in certain markets. The manufacturer/licensee typically pays periodic payments, known as “royalties” to the licensor calculated based a percentage of the total sales of the equipment, with deductions for taxes and product returns.
An example of a brand license: a movie studio creates cartoon characters and licenses various manufacturers to create children’s action figures and dolls based on the characters.
The Hoeller Law Firm’s clients include software designers/vendors and licensors and licensees of IP and brands. Just like with contracts, we represent clients in multiple industries in domestic and international transactions.
There is an alphabet soup of US federal government agencies regulating the products and services provided to American consumers by domestic and foreign firms – the ATF, CBP, CFPB, CPSC, DOJ, EPA, FDA, FTC, NTSB, and the USDA, among many others. In addition, there are state and local regulatory regimes and international regimes that come into play for US exporters.
Large publicly traded companies have sophisticated and well staffed compliance departments and yet, many of them still fall short and are prosecuted for regulatory violations and sued in class action litigation.
Smaller firms face a huge challenge since they do not have the same level of resources to identify, understand and deal with often complex and overlapping regulations.
This is where the Hoeller Law Firm’s expertise can be a game changer for your company. We know how to provide a holistic analysis of the relevant regulatory requirements for your company’s products and services. We can help our clients implement internal company processes to assure compliance is really taking place.
We have expertise in dealing with the regulations and personnel of several of the agencies listed above. We know how to team up with other law firms in regulatory areas we identify as relevant but are not expert in. We also work closely with world class testing laboratories, engineers and scientific consultants as needed.
In today’s global marketplace, regulatory compliance is an essential element of business success.
Food and Product Safety
This subject overlaps with regulatory compliance. But regulatory compliance alone does not assure food or product safety. Regulatory compliance is the minimum standard that must be met for food and products to be legally sold.
Reputable retailers often impose additional private standards and the plaintiffs’ bar is continually expanding a pro-consumer interpretation of statutes and regulations through court decisions in certain states.
More importantly, customers demand that the food, beverages and products they purchase are safe for their consumption and use. Adverse publicity about contaminated foods and unsafe products can destroy a company. In some recent cases involving contaminated foods, criminal penalties have been imposed on companies and their executives.
At the Hoeller Law Firm, we help our clients assure food and product safety by counseling them on the legal requirements, private standards, case law developments and by working closely with their quality assurance and food safety professionals.
Labeling and Advertising Law
Whether you are manufacturing or selling food, beverages, cosmetics, medical devices, computers, toys, furniture or any other type of product; there are five or six legal issues you need to take care of when it comes to labeling and advertising.
The first is the mandatory information required by relevant law or regulations. For example, the Nutrition Facts Panel on food labels. Or the choking hazard warning required for certain children’s products containing small parts. Or the fiber identification label needed for textiles.
The second aspect is protecting the brand name of the product by filing for US and international trademark protection.
The third is the marketing claims you want to make. Do you want to claim that your product is eco/green? If so, you will want to review and apply the Federal Trade Commission’s Environmental Marketing Guide if you want to avoid claims that you have engaged in illegal deceptive marketing practices.
The fourth is your instructions for use and/or warnings. If these are inadequate, you will be on the losing end of product liability lawsuits.
Fifth, your product labeling and advertising have to be coordinated because in some situations, the advertising needs to contain warnings and disclaimers. You cannot contradict your label statements and claims in your advertising and vice versa.
If you are selling outside of the US, each jurisdiction will have its own requirements. Common practices we take for granted here, such as comparative advertising, may be unlawful for certain product categories.
At the Hoeller Law Firm, we can guide you with all of this. We work closely with highly qualified trademark counsel to make sure that your own trademarks and any third party trademarks are used properly on your labels and advertising.
Recalls and Recall Prevention
No company likes to recall their products but sometimes this must be done under applicable law or is advisable to protect consumers under the precautionary principle or to protect the company’s reputation.
The requirements for when a recall is legally mandated vary from agency to agency of the US federal government and often recalls must be coordinated with Health Canada and other international agencies.
Many companies get into trouble because they fail to realize that for certain products they must pro-actively notify the relevant government agency, such as the Consumer Product Safety Commission, when they have received customer injury reports, regardless of whether a recall will or will not be required.
Susie Hoeller has served as the lead attorney for some of the largest recalls in US history. She currently counsels companies on when a government agency needs to be notified of a potential safety issue; when a recall is needed or advisable; and how to conduct effective recalls which minimize a company’s legal exposure to subsequent product liability and other claims.
At the Hoeller Law Firm, we also help our clients prevent or avoid recalls by working with their engineers, designers, scientists and quality assurance professionals on product designs and labeling, instructions for use and warnings, material selection and manufacturing process issues on the front end before products are sold.
Privacy, Data Security and Cyber-Security Law
Some the biggest news stories in recent months have involved privacy, data security and cyber-security. Ranging from Edward Snowden’s revelations about NSA spying on Americans, credit card breaches at retailers like Target and Home Depot, class action litigation against Facebook or the hacks on Sony Pictures; more and more companies are finally realizing that protecting their customer’s personal and financial information is not just the responsibility of the “geeks” working in IT departments. Rather it is a mission critical function that needs the attention of the CEO/business owner and all employees.
In the US, there is a patchwork of federal and state laws dealing with privacy protection. They are based on the industry sector, for example, laws covering medical records, banking transactions, credit cards, debt collectors, library book records, and many others. These laws typically describe the responsibilities the record holder has in terms of protecting information from unauthorized access or dissemination, modification and/or destruction and the obligation to report privacy breaches. The Federal Trade Commission, other federal agencies, state attorney generals and plaintiffs’ attorneys are very active in privacy related litigation.
Since 1995, the European Union has adopted a more comprehensive approach to data security and privacy. Other jurisdictions are getting involved now that rapid changes in cyber and other technology have exposed global commerce and consumers to ever increasing privacy risks.
Susie Hoeller has been counseling companies on privacy law issues since the 1990s, well before data and cyber security issues started to make headlines in the global media.
Antitrust / Competition Law
Business people generally know that it is unlawful for competitors to get together to fix prices under US antitrust law. But that may be the extent of their knowledge for several reasons. The term “antitrust” law derives from the famous Sherman Antitrust Act of 1890 which Congress passed to prevent companies from conspiring to restrain trade and to break up monopolies (also referred to as trusts).
The rest of the world calls this body of law “competition law” which is a more accurate description. Think of competition law as designed to provide a level playing field for all businesses and protect consumer welfare just like the rules for a sporting event protect both the athletes and the spectators.
Companies must compete fairly based on the superiority of their products and services. The courts have held many business practices beyond competitor price fixing and monopolization to be illegal or potentially illegal and subject to further judicial scrutiny..
At the Hoeller Law Firm, we educate our clients on how to: develop distribution channel-to-market, advertising and pricing strategies that comply with US antitrust law; properly participate in trade associations; and structure joint ventures and other permissible competitor collaborations.
Global Supply Chain and Distribution
Today, very few US companies source 100% of their ingredients or components locally. Like it or not, they are part of a global supply chain. In addition, many US companies develop export markets for their products and services. Participating in global trade can be very rewarding but it offers additional legal risks.
Ms. Hoeller has had extensive legal experience in negotiating and documenting international business transactions throughout her career for Continental Illinois National Bank, Texas Instruments, Walmart and many other public and private companies based in the US, Canada, the UK, Europe and Asia.
Since 2008, Ms. Hoeller has continuously served as an advisor to the New Zealand Trade and Enterprise Americas Beachheads Programme.
In 2010, she was awarded the prestigious Certified International Trade Professional designation by the Forum for International Trade Training in Ottawa, Canada after successfully completing a rigorous curriculum. Susie was also a co-founder of the Arkansas chapter of the Organization of Women in International Trade and she taught courses at the Arkansas World Trade Center.
Ms. Hoeller is currently a member of the International Law Section of The Florida Bar.
The Hoeller Law Firm assists its clients in doing business globally and collaborates as needed with customs brokers and law firms in other jurisdictions.
Trade Secret Protection
Most companies have essential trade secrets, which if revealed to competitors or other outsiders, will severely hurt the business. The trade secrets may involve inventions, technical know-how, software code, chemical formulas, recipes, component and material sources, customer lists, pricing and margins, and many other pieces of competitively sensitive information.
Surprisingly, many companies do not take sufficient steps to protect their trade secrets. Having your employees sign a non-disclosure and invention assignment agreement is not enough!
At the Hoeller Law Firm, we provide our clients with a comprehensive, affordable and practical program which will protect their trade secrets when properly implemented.