Gutwein Law is delighted to announce the addition of Nicholas C. Dugan, a real estate and corporate law attorney, to its Indianapolis office. With more than a decade of diverse experience and a proven track record of success, Nick brings an invaluable skillset to Gutwein Law’s team.

"We are thrilled to welcome Nick," said Stuart Gutwein, Managing Partner at Gutwein Law. "With his extensive experience and comprehensive knowledge of all sides of real estate law, Nick will play a pivotal role in helping our clients and firm continue to grow."

On Tuesday, April 23, 2024, the Federal Trade Commission (“FTC”) issued a rule banning most non-compete clauses in the United States. Lawsuits have already been filed to challenge the rule. However, businesses should prepare for the rule to go into effect 120 days after publication in the Federal Register (“Effective Date”), which is expected soon.

A non-compete clause is a term or condition of employment that prohibits a worker from, penalizes a worker for, or functions to prevent a worker from: (i) seeking or accepting work with a different person after the employment has ended; or (ii) operating a business after the employment has ended. Non-compete clauses can be part of a written or oral agreement, such as an employment agreement, separation or severance agreement, confidentiality and nondisclosure agreement, or as part of a workplace policy, such as in an employee handbook.

Does your business engage independent contractors to provide products or services in Illinois, or is your business located in Illinois? If so, the Freelance Worker Protection Act imposes new obligations on contracting entities and gives freelance workers various remedies and rights for violations.

Illinois enacted the Freelance Worker Protection Act effective July 1, 2024. The Act applies to freelance workers providing products or services in Illinois or to a contracting entity located in Illinois. Contracting entities must have a written agreement with freelance workers for contracts taking effect after July 1, 2024.

Keeping track of employee documentation can be tedious for employers, but it's a necessary step and can be especially helpful in a variety of situations. Various federal and state laws require employers to keep and maintain certain employee records, and if there is an employee-related issue, information in a personnel file may help establish an employer’s claim or defense in employment litigation.

But the big question is: what kind of documentation should employers file away? In comes our personnel file checklist. Below is our recommendation for what documents you should keep in personnel files and those you should keep separately.

As an update to our previous blog post on the Department of Labor’s (DOL) rule on independent contractor classifications, the DOL’s final rule (“Final Rule”) is officially in effect as of March 11, 2024.

As a reminder, the Final Rule repeals the 2021 “core factors” test and looks at the “totality of the circumstances” of six economic realities factors to determine whether a worker is classified as an employee or an independent contractor under the Fair Labor Standards Act.

Employers should carefully analyze independent contractor/employee classifications, and update their classification policies and any independent contractor agreements accordingly.

For a full understanding of employer’s obligations under the Final Rule, view our previous blog post.

What is basis? Basis is simply the amount you pay for something. Basis is sometimes adjusted by depreciation or undistributed income, but let’s keep it simple. You buy a share of stock for $100. Your basis is $100.

Why does basis matter? Basis matters because it determines the amount of income tax you pay when you sell. If you paid $100 and sell for $150 then you have a $50 gain on which income tax will be due.

Employers are quick to classify workers as independent contractors because independent contractors are not entitled to the benefits and protections afforded to employees (such as wage and hour laws, overtime pay, worker’s compensation insurance, employment taxes, employee benefits). However, there are rules employers must follow to ensure workers are classified correctly.

The most recent rule on independent contractor classification was published on January 10, 2024 by the Department of Labor (DOL) (the “Final Rule”). The Final Rule repeals the 2021 “core factors” test and becomes effective on March 11, 2024.

As you gear up for on-campus interviews (OCIs), it’s important to remember this process is a pivotal first step in your career as an attorney. That’s why it’s vital to invest the necessary time and preparation needed before, during, and after your day(s) of interviews. A well-thought-out plan, thorough preparation, and meticulous attention to detail are your greatest assets to finding the right fit in a potential employer.

But OCIs are not just a crucial time for law students; they’re equally significant to our firm. We’re always looking for talented people to join our team and that often starts during the OCI process.

So, what can you do to ensure you stand out during OCI and beyond? We’ve put together a list of seven tips to ensure you’re well-prepared:

The U.S. Occupational Safety and Health Administration (OSHA) has adopted a new rule expanding the injury and illness reporting requirement for employers. 

Effective January 1, 2024, more employers will be required to electronically submit workplace injury and illness information to OSHA as follows:

• Worksites with 100 or more employees in certain high-risk industries must electronically submit information from their OSHA Forms 300 and 301 to OSHA once a year.
• Worksites with 250 or more employees that are subject to OSHA's record-keeping regulation will continue to be required to submit information from their OSHA 300A form to OSHA annually.
• Worksites with 20 to 249 employees in certain high-risk industries will continue to be required to submit information from their OSHA 300A form to OSHA annually.

Certain industries are exempt from submitting workplace injury and illness information to OSHA unless they are asked in writing to do so by OSHA, the Bureau of Labor Statistics (BLS), or a state agency operating under the authority of OSHA or the BLS.

All data must be submitted annually for the previous calendar year by March 2nd of the following year.  When submitting data, employers should not include personal identifiable information of employees on the reporting such as: names, social security numbers, telephone numbers, home addresses, email addresses, healthcare provider information, or family member information.

• Data can be submitted electronically here.
• Aids to assist in the reporting process can be found here. 

As a general reminder, OSHA already requires employers to keep records of work-related injuries and illnesses that resulted in death, loss of consciousness, medical treatment beyond first aid, days away from work, restricted work or transfer to another job. Additionally, all employers must report to OSHA any workplace incident that results in a fatality, in-patient hospitalization, amputation, or loss of an eye as further described here.

Employers must still complete the OSHA 300, 301 and 300A forms based on these records.

Gutwein Law would like to congratulate four of its attorneys for being named to The Best Lawyers in America 2024 list. Lawyers included in the list are divided by geographic region and practice areas. They are reviewed by their peers on the basis of professional knowledge and experience, and undergo an authentication process to make sure they are in current practice and in good standing.

A recent Supreme Court ruling will lessen the burden that an employee must show to receive religious accommodations from an employer. In Groff v. DeJoy, the court unanimously held that an employer may deny an employee's request for a religious accommodation only if the employer can show that it would result in a substantial increased cost for the business. The case sets a higher bar for employers to deny accommodation requests and may lead to increased religious discrimination claims.

Employers in Illinois may soon have to be transparent about their pay scale and benefits on job postings. The Illinois General Assembly recently passed House Bill 3129 requiring employers to include pay scale and benefits in job postings. The Bill is expected to be signed by Governor J.B. Pritzker, and if signed, will take effect January 1, 2025. The Bill applies to positions that will be physically performed, at least in part, in Illinois, or will be physically performed outside of Illinois but the employee reports to a supervisor, office, or other work site in Illinois.

As an update to our previous blog post on the impacts of the Pregnant Workers Fairness Act (PWFA), the PWFA is officially in effect as of today June 27, 2023.

As a reminder, the PWFA requires employers who employ 15 or more employees during 20 or more work weeks to provide a reasonable accommodation to workers for known limitations related to pregnancy, childbirth or related medical conditions.

As of today, if an employer violates the PWFA, employees will be able to file EEOC charges based on the failure to accommodate.

The Pregnant Workers Fairness Act (PWFA) was signed into law at the end of 2022 and will become effective this summer, on June 27, 2023. The PWFA will require employers who employ 15 or more employees during 20 or more work weeks to provide a reasonable accommodation to workers for known limitations related to pregnancy, childbirth, or related medical conditions.

Two common goals we see in estate planning are (1) ensuring assets pass to the intended beneficiaries; and (2) efficiently transferring assets to the intended recipients. While estate plans can be as unique as the individuals creating them, and there may be multiple ways to set up a plan to reach a client’s goal, estate planning is far from a fool-proof process. What may be the “easiest way” to transfer assets could lead to unintended consequences down the road. Through our experience helping clients create their estate plans and helping administer less than ideal estate plans, we’ve found these practices to be the top ten estate planning mistakes.

Your trips to the mailbox may have gotten less exciting in the past few months as you likely haven’t received the infamous blue and white 20% off coupons from Bed Bath & Beyond. Previously serving as the home of wedding registries and college furnishings, Bed Bath & Beyond is a Fortune 500 company that is now expected to file bankruptcy in the first quarter of 2023. In a January 5, 2023, statement, Bed Bath & Beyond President and CEO Sue Grove noted that the company is anticipating a net loss of approximately $385.8 million for the third quarter of the 2022 fiscal year.[1]

Indiana’s Commercial Court project was approved by the Indiana Supreme Court in January 2016 and the project became operational in June 2016. Initially, the Commercial Court project launched in six counties across the state. However, since then, the project has grown and now there are Commercial Courts located in Allen County, Elkhart County, Floyd County, Hamilton County, Lake County, Madison County, Marion County, St. Joseph County, Vanderburgh County, and Vigo County, taking the total to ten counties throughout Indiana.

As an update to our previous blog post on non-compete laws (found here), the Federal Trade Commission (FTC) proposed a rule yesterday that would ban non-competes in employment contracts.

Gutwein Law is pleased to announce that Audrey Wessel and Ross Yates have been elected partners in the firm. “Audrey and Ross represent the best of Gutwein Law,” said Stuart Gutwein, Managing Partner. “They have been vital in continuing the growth of our firm with their extensive knowledge, hard work, and extraordinary service to our clients. We are pleased to celebrate their achievements.”

Recently I had the pleasure of presenting at the Midwest Intellectual Property Summit hosted by the Indiana Continuing Legal Education Forum (ICLEF) on an effective tool and process for removing accused patent infringing products on Amazon.com called the Amazon Patent Evaluation Express Procedure (APEX). The APEX program, at its core, is a streamlined process utilizing a neutral party (“evaluator”) to evaluate a single patent claim of an asserted U.S. patent to determine if an accused infringing product is more likely than not to infringe the asserted patent. The process requires the submission of a brief providing legal argument and information to either support or defend a parties claim of infringement.

An independent contractor is a worker who contracts with individuals or entities to provide services and is distinct from an employee. When workers are classified as independent contractors, they are not entitled to the benefits and protections afforded to employees. If an employer misclassifies workers as independent contractors rather than employees, even if by accident, there can be severe penalties.

A non-competition agreement (or "non-compete") is a legal contract designed to prevent an employee from competing with their employer. Generally, non-compete agreements must be no broader than necessary to protect the employer's legitimate business interests. Restrictions included in such agreements must also be narrowly drawn with respect to duration, geography, and the type of competitive activities prohibited.

Who's involved in litigation?

Despite litigation’s reputation of always occurring in a courtroom between lawyers arguing before a stone-faced judge, the origins of litigation actually begin with you: a valued client with the need to remedy an injustice. Other individuals involved in litigation will vary based on the size of the dispute, the type of litigation, the determined pathway to resolution, and the representation selected by the parties involved.

Indianapolis, IN – August 5, 2022 – Gutwein Law, a full-service business law firm focused on helping innovative companies grow through high-level legal counsel, has added Jackie Gessner to its Indianapolis office. Jackie joins Gutwein Law from Barnes & Thornburg, a national business law firm, where she brings nearly a decade of experience working with human resource departments, business leaders, owners and managers on an array of workplace issues.

Evansville, IN – July 8, 2022 – Gutwein Law, a full-service business law firm focused on helping innovative companies grow through high-level legal counsel, has added Spencer Tanner to its Evansville, IN office. He joins Gutwein Law from Stoll Keenon Ogden PLLC, a large regional law firm, where he brings years of experience practicing in the areas of general commercial litigation and bankruptcy/creditor's rights.

As of now, beginning on January 1, 2024, a new United States regulatory requirement is scheduled to take effect, impacting millions of new and existing businesses. The Corporate Transparency Act (“CTA”) will require small businesses to file information about themselves and the individuals who formed, own, and control them with the United States Treasury Department. Failure to follow the CTA may result in civil and criminal liability for business owners, including civil fines of $500 a day and criminal fines up to $250,000 and up to five (5) years in prison.

Congress enacted the CTA as part of the Anti-Money Laundering Act of 2020. On December 7, 2021, the United States Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) proposed regulations seeking to implement the “beneficial ownership information” requirement of the CTA. A key provision of the CTA requires certain business entities to disclose to FinCEN their “beneficial owners” and other identifying information. The CTA is designed to prevent individuals from abusing legal entities to conceal proceeds of corrupt criminal acts, including money laundering. A driving factor behind the proposed regulations is for the United States to be aligned with international anti-money laundering standards.

Entrepreneurs often cite the limited liability protection afforded them by way of forming a corporation or a limited liability company as a primary purpose in creating the entity. Sure, there is the aura of sophistication and achievement that comes immediately along with it (as well as several other benefits), but this personal protection seems to be a key factor in most formation decisions.

Limited liability is the concept that the company’s debts and liabilities are its own—an owner of the company is not personally liable for them. This is instrumental in business creation as it allows for a separation between the obligations of the company and the assets of the owners while promoting entrepreneurial risk taking. Generally, if the company fails, only those assets that belong to the company, risk being lost – not the owner’s property. Of course, the homestead may be at risk when the owner uses his or her home as collateral for company obligations. However, there is a lesser known risk to the property under the concept of “piercing the veil.”

One of the first conversations I have with clients is the difference between using a will and a trust. For most clients, the decision between a will and a trust is about personal preference and which benefits appeal to them most.

It's no secret every business wants to increase their brand recognition and generate more revenue. But being a "business" isn't always what you think of in a “brick and mortar" sense. Take celebrities, influencers, and athletes, for instance, using their name, image, and likeness (NIL) to generate income. In many communities, especially college towns, some of the most recognizable members are NCAA student athletes. However, up until recently, these student athletes were not permitted to monetize their NIL and instead solely relied on scholarships from their respective schools.

But on July 1, 2021, the NCAA made the decision to grant student athletes the right to monetize their NIL -- a decision that created a new industry, new marketing opportunities, and new legal agreements to navigate.

The advice of an experienced attorney is absolutely critical to success in litigation -- whether that success comes in the form of a win in court or a favorable settlement. An experienced litigator, like the ones at Gutwein law, will think steps ahead and anticipate what the opposing party may do throughout the litigation process enabling you to obtain the best possible outcome for your situation.

Given that anyone can be sued at any time, we think it's important that our current and prospective clients have a basic understanding of the litigation process, so they can obtain proper counsel, and ultimately, have their interests protected.

Below, we've outlined the litigation process in seven steps to give you an idea of what it's typically like to be involved in a lawsuit.

• Health Insurance Portability and Accountability Act (HIPAA); and
• the federal Equal Employment Opportunity (EEO) laws, including the Americans with Disabilities Act (ADA) and Title VII of the Civil Rights Act (Title VII).

If you're reading this, you probably already know it's common for companies, including those in early stages, to offer incentives to employees in the form of equity or equity equivalents. Why? Because equity incentives can help in attracting and retaining talent at any company, and in early-stage companies, equity incentives may also be used to compensate personnel if the company is not yet able to pay market-rate salaries.

But it's not all straightforward. Equity incentives can be complicated from both a legal and tax perspective. Below are some frequently asked questions that we receive in regard to equity incentives.

It's no secret youth employment reaches its biggest heights in the summer. No school and minimal extracurricular activities means many teenagers are often looking for ways to make extra cash. But there's a change coming soon that may impact employers.

Effective July 1, the Indiana Department of Labor’s Bureau of Youth Employment has issued a new requirement regarding minor employees (over the age of 14 but under the age of 18) that affects certain employers.

With the end of the Spring semester suddenly upon us, many law school graduates are preparing for one more final exam -- the bar exam. While these students have spent the past couple years preparing for this very moment, many undoubtedly will experience lots of stress over the next several weeks.

With that in mind, what can a soon-to-be licensed attorney do to ease their nerves and  increase their odds of passing the bar exam? We don't promise to have all the answers, but we asked some of our attorneys who have been there for their best bar prep tips.

Here's what they had to say…

When should I think about my estate plan? As a new attorney, I sometimes even find myself asking this question. When many people think about estate plans, they think of appointing guardians for their kids and what treasured personal items they want their family members to have. While these are significant parts of estate planning for many people, there are lots of other important estate planning questions we should consider throughout our lives.

One question we should all start considering as young adults and continue to reflect on as we age is "Who do I want to help care for me if something happens to my health?" Financial power of attorney, healthcare power of attorney, and HIPAA releases are all documents we should consider having throughout our lives. As much as we don't like to think about bad things happening to us, it's important to consider what will happen if we can't make decisions for ourselves. Together, these documents help ensure we're cared for if we're unable to do so for a period of time.

https://www.sba.gov/page/coronavirus-covid-19-small-business-guidance-loan-resources#section-header-3

President Biden announced restrictions to the SBA’s PPP 2.0 loan applications to benefit small businesses and non-profit organizations with fewer than 20 employees and sole proprietorships for a 2-week period from Wednesday, February 24, 2021 through March 9, 2021. On March 10, 2021, employers with over 20 employees will be able to again apply for PPP 2.0 funding until the expiration of this installment of funding on March 31, 2021.

Minneapolis, MN, March 1, 2021 – Gutwein Law announced today Josh Schaub is one of the Minneapolis St. Paul Business Journals 2021 40 Under 40 honorees. To view the complete article, visit: https://bizj.us/1q8xo0. 

Evansville, IN – February 5, 2021 – Gutwein Law, a full-service business law firm focused on helping innovative companies grow through high-level legal counsel, is expanding its presence in Evansville, Indiana. The firm recently added Ross T. Yates, a corporate attorney with deep experience in the healthcare industry, to its team. Ross represents sophisticated businesses, healthcare providers, private equity sponsors, venture capital funds, family offices, entrepreneurs, and investors in complex transactions.

If your business or nonprofit did not get funds from the first round of the Paycheck Protection Program (PPP), and maybe even if it did, you could get another bite at the apple. Your business/nonprofit may also be eligible to re-apply in the next round if you were rejected in the first round OR if you used up your first PPP loan (with some exceptions) if you can prove that your receipts are down at least 25% in at least one equivalent quarter from 2019 and 2020.

In August 2020, the SEC amended its definition of “accredited investor,” expanding the list of individuals eligible to invest in companies via private offerings under Regulation D.

The “accredited investor” definition is important for companies who intend to file safe harbor exemptions for private offerings under Regulation D, including under Rules 506(b) and 506(c). For more information on these exemptions, please see our previous blog post on this topic. Until the recent amendment, an individual did not qualify as an “accredited investor” unless that individual had either (i) an income exceeding $200,000 in the two most recent years (or $300,000 jointly with a spouse); or (ii) had an individual net worth (or joint net worth with spouse) exceeding $1,000,000 at the time of the purchase (excluding the value of the individual’s private residence).

Governor Holcomb’s Executive Order 20-43, signed on September 24, 2020 requires all businesses situated or operating in Indiana to create a COVID-19 response plan outlining measures and safeguards for the safety of employees, customers, clients and members of the public. The plan must be provided to all employees and posted publicly. Existing policies should be reviewed and updated to reflect current practices and standards.

The minimum requirements of the COVID-19 response plan include:

The Securities and Exchange Commission (SEC) reports that in 2019, out of a total estimated $2.7 Trillion dollars raised through private offerings, only $62 Million – or about 0.0023% of all private fundraising, was completed through crowdfunding offerings. Since the inception of the rules allowing for this type of crowdfunding in May 2016, through December 2019, the SEC states that 795 crowdfunding offerings have taken place with an average raise of $210,000 per raise.

This summer, I had the opportunity to work as a Summer Associate at Gutwein Law. It has been a great privilege to be able to complete a full Summer Associate program at an exceptional law firm amidst the COVID-19 Pandemic. I thoroughly enjoyed the opportunity to grow as a professional and get to know the great people at Gutwein Law. Even among the COVID-19-related changes and uncertainties in their own personal and professional lives, the members of the Gutwein Law team, at all levels, were willing to go above and beyond to ensure that I was put in a position to be successful and always received the support I needed.

Internships are exciting, nerve-wracking, and can change the course of your career in a few short months. I accepted a three month internship at Gutwein Law expecting a challenging summer while working closely with my coworkers learning more about the practice of law. Then the COVID-19 pandemic began and changed my expectations completely. I was hopeful to still have an internship or some semblance of one. I am grateful to be one of the lucky individuals to have had a full internship at an incredible firm as most of my peers had their internships canceled.

When we speak with clients about fundraising and identifying investors, standard advice usually includes avoiding general advertising and general solicitation regarding the funding round. While that may not be necessary in every case, avoiding public references to fundraising leaves companies with many more options for securities exemptions than they would otherwise have. (For an overview on securities exemptions and why an exemption is required for a private company to legally fundraise, check out this post, and for a further explanation as to what might constitute general advertising or solicitation, take a look at this one.)

Recently, the Supreme Court provided some clarity and guidance to trademark protection for generic terms registered as a domain and used as a trademark. In Patent and Trademark Office v. Booking.com B. V., No. 19-46 (U.S. Jun. 30, 2020), the Court held that the mark “Booking.com” is not generic and is capable of trademark registration, even though the term “booking” is generic for a class of goods and services related to online hotel registrations. Essentially, the Patent and Trademark Office was arguing for a bright line rule that the addition of a generic Internet-domain-name suffix to an already generic term, for a related category of goods, is also generic; i.e. one cannot trademark the term “generic.com” for a generic description of a category of goods.

In continuation of our recent commentary on the COVID-19 pandemic, we're examining the latest litigation risks for employers in today's blog post. Because of COVID-19, employers of all sizes have been forced to make difficult decisions regarding employment. These decisions have led to furloughs, increased sick leave, productivity concerns, pay cuts, and termination of employees, all of which ultimately raise litigation concerns.

The boundary between termination and retention is more blurred than ever before. And this lack of distinction naturally leads to contract claims. Additionally, termination can raise non-compete issues if an employee is subject to a non-compete covenant, as well as wrongful termination issues.

Whether your company or organization was deemed essential or not – we all want to be careful around co-workers and colleagues – as well as clients and customers – from now on. A multitude of articles have been published and posts have been posted on all the considerations to account for as businesses and organizations re-open their doors and bring back furloughed or quarantined employees. The list below is a compilation of the resources we believe will provide you with the most helpful information as you navigate returning your office, plant, school, or facility.

We will keep updating this chart with recent changes and additions that may impact your place of work and employees.

On Monday of this week, a divided U.S. Supreme Court decided a landmark employment law case.  In Bostock v. Clayton County, Georgia, the U.S. Supreme Court found that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, includes sexual orientation and gender identity.  Title VII applies to employers with 15 or more employees in 20 or more calendar weeks in the current or preceding calendar year.  Title VII prohibits discriminating against an individual with respect to employment decisions, compensation, terms, conditions, or privileges of employment because of an individual’s race, color, religion, sex, or national origin.   

We know there are a lot of you out there with ideas, but you may not know the best place to start, or how to get involved in the startup community. Maybe you’d like to work for a startup, or maybe you’d just like to check out the state of entrepreneurship in Indiana. Luckily, Indianapolis has a thriving startup community, complete with individuals and organizations ready to help you succeed.   

The list below may not be everything that’s going on in Indianapolis, but if you start here, we are confident that you will be able to network your way to the events and associations that are right for you.

The Coronavirus Aid, Relief, and Economic Security (CARES) Act has brought on a lot of highly publicized programs. For instance, every business owner is likely aware of the Paycheck Protection Program (PPP), a forgiveable loan designed to provide relief to businesses and keep people on the payroll.

With the COVID-19 pandemic showing no signs of slowing, many of us are recognizing the harsh reality that we're all vulnerable. There are so many factors outside of our control, we can't possibly know what the future holds for us. Our faith can help us cope with that reality, but it doesn’t change it. As we've all said before (and will say again), these are extraordinary times -- unimaginable just months ago.

Our law firm, Gutwein Law, remains open for business. All of our team members are back in the office and taking the necessary precautions to keep each other and our clients safe.

As an Elder Law attorney, I know many of my clients receive Medicaid benefits to help with the costs of long-term care -- whether they're in a facility, in assisted living utilizing a waiver, or at home receiving waiver services. So, when the government announced the stimulus payments of $1,200 per adult and $500 per dependent child, immediately the Elder Law community wondered how the payments would be treated by Indiana Medicaid. And rightfully so.

Since stimulus payments started to be issued, I have received many inquiries from Medicaid recipients and other professionals with the most common question being:

At its core, a Grantor Retained Annuity Trust (GRAT) is a tool used to make a tax-free gift. And it may be just the right time to consider setting one up for yourself.

Here's how it works: the donor creates a trust which calls for certain payments to be made to themselves over a period of time, and then whatever is left in the trust passes to the beneficiaries named by the donor. 

Specifically, the tax-free part is accomplished by a complex calculation that "zeros out" the GRAT. Zeroing out simply means that the anticipated value of the remaining assets in the trust (the part that is paid to the beneficiaries) is expected to be zero. 

A traditional IRA allows money to grow tax deferred (not tax free).  But, eventually, when that money is withdrawn from the IRA, it is subject to income tax.  IRAs are subject to required minimum distributions. The SECURE Act changed the minimum distribution requirements for inherited IRAs. 

Historically, one could spread out the distributions of the inherited IRA over their own lifetime. After the SECURE Act, a non-spouse who inherits an IRA must withdraw the entire amount within 10 years. Exceptions to the 10-year rule are minor children, disabled or chronically ill individuals, and beneficiaries less than 10 years younger than the decedent.

It's no secret COVID-19 (the Coronavirus) is causing a huge deal of uncertainty within companies across the globe. From the glaring financial and supply chain impacts to the less obvious cultural adjustments, there's a lot for business leaders to figure out.

With that in mind, I wanted to share how Gutwein Law is navigating the COVID-19 pandemic from an operations and cultural standpoint in hopes it could help some companies still struggling to find their feet.

As we all continue to adjust our lives as a result of the COVID-19 pandemic, the United States Patent and Trademark Office (USPTO) is providing relief to those individuals, practitioners, registrants, applicants, or any other person associated with a filing who has a matter before the office and has been impacted by the outbreak.  With the recent passing of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) signed by President Trump on March 27, the USPTO has extended due dates by 30 days for most filings that were/are due between the time period of March 27, 2020 and April 30, 2020.

As an Elder Law attorney, these uncertain times have become increasingly worrisome to myself and my clients. Most of my clients are at-risk community members as they are over the age of 60, many have underlying health concerns and/or are residing in a long-term care or assisted living facility. COVID-19 has had a major impact on not only my clients’ daily lives and those of their caretakers, but all at-risk community members. 

In addition to the dangers of the virus itself, COVID-19 has presented the elderly with another potential risk: fraud. With that in mind, I want to share a couple concerns we have been experiencing in our practice and helpful tips to combat them.

The federal government passed the Families First Coronavirus Response Act (“Act”) on March 18, 2020 with an effective date of April 1, 2020.  The Act requires employers with fewer than 500 employees to provide paid leave to employees under an amendment to the Family and Medical Leave Act known as the Emergency Family and Medical Leave Expansion Act, as well as the Emergency Paid Sick Leave Act.  This leave is available for employees through December 31, 2020.

The Department of Labor issued FAQs on March 24, 2020 (“DOL FAQs”), which are updated frequently and provide answers to a vast number of topics.  See https://www.dol.gov/agencies/whd/pandemic/ffcra-questions. Note that even previously answered questions are sometimes modified later. A good practice is to check back daily to the Department of Labor Coronavirus Resources website (https://www.dol.gov/coronavirus) for further information and updates.

The Department of Labor has also issued regulations pursuant to the Act, which can be found at https://www.ecfr.gov/cgi-bin/text-idx?SID=f2e549b7d707e617546a290a5e7a0331&mc=true&tpl=/ecfrbrowse/Title29/29cfr826_main_02.tpl).

Basic questions on the Emergency Paid Sick Leave Act as well as the Emergency Family and Medical Leave Expansion Act are answered below.  Please contact Gutwein Law for further information, to request policies, or to discuss your company’s specific circumstances.

In continuation of our recent commentary on COVID-19, we're going to use this article to examine force majeure clauses. While most of our questions so far have come from our sports clients, all of whom are materially impacted by the sudden and nearly simultaneous prohibition against public gatherings around the world, the issue is applicable to any business that is obligated to provide goods or services to another party.

Translated from French, force majeure means superior force. The idea is that something greater than ourselves caused us not to perform a contractual obligation, despite our earnest desire to do so. 

It is no surprise that the health pandemic of COVID-19 is affecting businesses across the globe. To provide greater context on COVID-19, here are a few links to useful resources:

In a lesser known song about Denver, Colorado, Jimmy Buffett sings “winter dictates everything from frost to naked trees.” This statement couldn’t be more apropos regarding the 2020 Outdoor Retailer Snow Show this year. Anyone and everyone in the business of gear for surviving the harsh and slippery conditions of winter, enjoying a ride down a powdery slope, and imbibing a cocktail in an insulated mug for après ski is represented. 

This past week I had the pleasure to check in on a few clients and take in the Snow Show in all of vast expanse and glory. It truly is a great show and definitely a great place to get a sneak peek of the improvements and innovation hitting the shelves next winter. Given that innovation is a focus of the show and its many attendees, I thought I may be able provide a little perspective as it relates to my area of expertise and perhaps help some of those up and coming designers, developers, and companies looking to make an impact in future years.

On December 3, 2019, the Indiana Supreme Court clarified the limited power courts have to revise non-competition agreements.  While Indiana is a “blue pencil doctrine” state, courts won’t do your drafting for you.

The facts of the case, Heraeus Medical, LLC, v. Zimmer, Inc., et. al., 135 N.E.3d 150 (Ind. 2019), are these:

New overtime rules go in effect on January 1, 2020 that may affect whether your employees qualify for an exemption from overtime pay. You may recall that a previous rule in 2016 to increase salary levels was blocked by a federal judge before the rule went into effect. Thankfully, for employers, this new rule is a smaller increase in salary levels than the 2016 rule.

In summary, the salary threshold for two exemptions from overtime pay -- the white collar exemption and the highly compensated employee exemption -- are increasing on January 1, and certain nondiscretionary bonuses and incentive payments can be used to satisfy a portion of the salary threshold. This means that employers will need to increase salaries, nondiscretionary bonuses, or nondiscretionary incentive payments to retain the exemptions or pay overtime to employees who do not meet the new test.

The full details on the final rule can be found in the Department of Labor press release, but here's a brief summary of the changes:

Growing startups often reach a point at which fundraising is either necessary to continue the growth of the business, or appealing for other reasons. If you are considering taking on investment funds for your startup, there are several basic considerations you should keep in mind. This post covers two aspects that may often be overlooked by founders, causing potentially significant issues for your business and fundraising in later stages.  

You're thinking of starting a business. You might have researched the requirements for legally forming a business in your state, which usually means filing certain documents with the secretary of state. Is this all you need to do? Are there any additional documents or agreements you should have in place? While your state may not require additional documents be filed, many companies will want to create additional internal documents governing the company, perhaps for the reasons described in this post.

Common formation documents include bylaws or an operating agreement, depending on the type of entity you filed; resolutions confirming your officers and/or board members, and setting forth the ownership of your company, if there are multiple owners or members; and certain agreements for founders, depending on your business, which may include intellectual property transfer agreements, or vesting agreements for the founders' equity.

Gutwein Law exists for one reason – to help some of the best, most forward‐thinking businesses in the world and their stakeholders grow through high‐level legal counsel. Gutwein Law knows that we can only help grow companies and their stakeholders if we have the most forward-thinking, business-minded legal talent, so we continuously invest in the development of our people.

That’s it – our mission statement. It may sound straightforward, but a lot goes into making it a reality, especially behind-the-scenes. We make it a habit to continually invest in our people, so they can focus on providing the best possible service to our clients. Here are some ways we do just that:

Keeping track of employee documentation can be tedious, but it’s necessary and
especially helpful in the event of an employee-related issue. The big question is: what
kinds of documentation do you need to file away? In comes our personnel file checklist.
Below we’ve outlined our recommendations for what documents you should keep in
personnel files and those you should keep separately. If you have any questions, please
give us a call at 765.423.7900.

Choosing the employment policies that are right for your company is a big deal. Things like dress code requirements, remote working options, and time off allowances can have an enormous impact on your company’s culture and the happiness of your employees. There are some policies, though, you simply must have in place – the kind that can protect you and your company in the event of an employee-related issue.

So where do you start? How do you know what types of policies and documents you need to create? Well, we created this blog post to answer these very questions. At a high level, there are three items we suggest all companies have in place:

Trust is at the core of what we do.

Our clients often come to us seeking advice during some of the most critical times in their lives. How should they set up their company? Who will care for their kids when they’re gone? How will they protect an idea they’ve spent their whole life perfecting? These are important decisions that we, as advisors, must help them make.

So, we asked ourselves: what traits do we look for in someone when we’re seeking advice? Below is a wordcloud with our answers.

We sat down with Luke Pfeiffer, current Legal Assistant Intern, to get his take on what it's like to work at Gutwein Law. Spoiler: you'll learn a ton (and we think it's pretty fun here, too). If you're interested in becoming a Legal Assistant Intern with Gutwein Law in the future, please send a cover letter and your resume to careers@gutweinlaw.com. 

Who are you? What are you studying?

My name is Luke Pfeiffer and I’m from West Lafayette, Indiana. I’m a freshman student at Purdue University studying accounting with a pre-law concentration.

What were you looking for in an internship?

Above all else, I was looking to gain exposure to the legal field, and Gutwein Law couldn’t have been a better place.

Firing or terminating an employee is a natural part of business. It can be uncomfortable, awkward, and certainly not fun. But it can also get a whole lot worse, especially if a former employee brings a lawsuit against you. It can not only be costly, but it can cause unrest among your other employees and customers.

So how do you best protect yourself from lawsuits from terminated employees? Employment separation and release of claims agreements.  We’ll call them separation agreements.

We had a client contact us recently who was reasonably upset after discovering a party they'd been working with “breached” their Non-Disclosure Agreement (NDA). The said party was a prospective buyer who told one of our client’s customers they were buying our client’s business (I think you can see the problem here). Unfortunately, our team at Gutwein Law wasn't given a chance to review the document prior to our client signing the NDA, and that "breach" of contract wasn't really a breach after all.

At Gutwein Law, we understand navigating tax credits can be difficult. So, we've put together a list of tax credits for Midwestern states to help you get started. Ready for today's blog post? Good! Make some noise for Illinois!

We see it all the time: startup founders ignore the importance of intellectual property (IP) and begin going about their business. Then, they run into trouble down the road. Infringements, misappropriation, ownership disputes, and ultimately lawsuits are enough to stop any startup in its tracks.

That's why registering IP with the appropriate governmental organizations is totally worth it. We'd even go as far as saying it's one of the first things you should do when starting a company (after forming the entity and determining ownership, of course). But, we don't want to make it sound too straightforward because there's a lot to consider when protecting your IP. We could go on and on, but that wouldn't be any fun. So, we'll just hit you with the basics. The stuff you really need to be thinking about as a startup founder.

Let's get down to it then.

Assigning a value to your company is a serious "must-do" for any startup, especially if you're on the hunt for investors. But determining your company's valuation isn’t as straightforward as looking at your bottom line (probably a good thing if you're pre-revenue). It's a blend of science and some art, and there are dozens of valuation methodologies to consider. A quick tip: don't limit yourself to one approach. There's no such thing as the perfect method for your company and utilizing multiple methods allows for an average to be taken, which can help in the negotiation process with investors.

With that in mind, where should you start? Well, there are four valuation methods we think standout among the rest. These should give you exactly what you need the next time you step into the shark tank:

Like many others long before and after me, I had the pleasure of learning Income, Corporate Tax, Estate and Fiduciary Tax, Tax Procedure, and State and Local Tax from Lawrence A. Jegen III. And also like many others, he was my favorite professor during my three years at IU McKinney Law School. But what made him my favorite professor wasn't necessarily the topics he taught inside the classroom.

Professor Larry Jegen taught me countless principles that I still carry with me today – a lot of which I attribute to my enjoyment and success in the legal industry. So in honor of Mr. Jegen, I wanted to highlight five of those principles, all of which I believe are important to everyone in life:

I’m sure you’re saying, “Wait, another alphabet soup of regulation?” Yep. GDPR stands for The General Data Protection Regulation. Heard of it? The topic's been floating around the news over the past couple years, and today it finally becomes enforceable. But how many of you have been paying attention? Hopefully you all raised your hand as this new regulation could have an impact on your business. For the sake of this blog post, let's say you haven't done your homework on GDPR. If that's the case (which I'm sure it's not), we'll start by defining it.

As much as we hate to admit it, sexual harassment is a hot topic right now. From celebrities to large corporations and even startups, it’s everywhere. And regardless of whether you want to discuss it, sexual harassment needs to be talked about with your employees because, let's face it, it's not going anywhere unless we do something about it.

We have all come across this concept (or is it a term?) before, but now, let’s take the time to really understand this. Over the next few posts in this series, we’ll take a dive into the indemnification pool (pun intended) and break down the useful definitions and considerations to give you enough to have a conversation and lead you into more in-depth research.

In fact, Indemnification Caps (“Caps”) are essential to both buyers and sellers and draw on expertise from litigators and deal lawyers. Are they worth it? You bet, a botched indemnification negotiation could negate the entire value of the deal you just closed. Is it tricky? As you’ll see, the negotiators have their own language.

Let’s start with a broad definition that we can refer back to throughout the series: What is an Indemnification Cap?

When you form a company you need lots of legal documents in place. But how do you know what you need and when you need it? Look no further! We've created this handy legal document timeline just for startups. And as always, please give us a call at 765.423.7900 if you need help getting any of these documents drafted.

Let me start by saying this isn't our typical blog post. There won't be any complicated legal terms or examples. Instead, we want to take this opportunity to place focus on something our clients encounter all the time: networking.

Now I know what you're thinking, "this isn't related to law." And you're right, it's not exactly; but we're also in the business of advising. We'll do whatever we can to help your company grow, so we often go beyond the boundaries of law. After all, many of our team members own businesses themselves, so we know the value of things like networking.

But enough about us. Let's discuss the importance of networking for you as a business person.

Whether you're the "gifter" or the "giftee", it's no secret you want to make the most of a gift. But Federal Estate Tax Laws can make your ideal gifting process a little hard to navigate, to say the least. In recent years, the tax laws have increased the exemption amount (the amount someone can pass without paying any Federal Estate Tax) to approximately $11.2M per person, while the annual gift tax exclusion has increased to $15,000 per person.

While that's a change in your favor, I think it's important to talk through the implications of a gift versus an inheritance. An inheritance, which is a transfer that occurs upon death of the gifter, results in something called “stepped up basis.”  A gift made during the gifter’s lifetime results in “carryover basis.”

Let's take a look at a real-world example to help make sense of these two ideas:

When a new company's formed, the potential breakup is typically the last thing discussed, because let's face it, it's uncomfortable. Unfortunately, though, it happens often, and it can be quite problematic. Founders might leave the company for greener pastures, new opportunities, or they may simply graduate college and move on. In the world of fast-rising startups, an experienced attorney can save your high-potential ideas from a disappearing cofounder with an understanding of two critical concepts: vesting and the 83(b) election.

Seeing your child grow up and become an adult is generally both exciting and somewhat frightening. They’re ready to take on the world, and now they can vote and even legally enter into contracts for the first time in their lives. For the average 18-year-old, though, they’re usually most excited about graduating from high school and ultimately getting out of your house.

In my mind, during this transition period in their life, it's good to give them the responsibility that comes with being an adult. As a parent and an attorney, I don’t encourage anyone to continue to treat adult children like they treated them when they were in elementary or junior high. They should begin being responsible for their own decisions and being aware of their own deadlines. 

However, what if something happens? What if they get sick? What if they get into a situation where they really need your help?

Think you have an idea? Like a really good idea? Well, it may be worth nothing if you don't get the proper protection in place. But how do you know if you need protection? And another question: how do you know what kind of protection you need? A patent? Trademark?

The good news is, we came up with an idea of our own. It's called Informed IP.

As a business person, you no doubt are aware that bankruptcy effects the state of trade. In day to day operations, when providing goods or services to a struggling entity or individual you know, getting money due from your customers can prove to be difficult.

Perhaps you were lucky enough to receive some funds from your customer prior to its filing bankruptcy. Just when you were thanking your lucky stars for the little amount money you were able to receive from your customer prior to its bankruptcy filing, you receive the dreaded demand letter from the bankruptcy trustee in the mail and it hits you in the face like a splash of cold water. You’re being told you have to give it back any money received from 90 days prior to your customer filing bankruptcy.  And it's not some sort of bad joke, either.

If you've been perusing our career page lately, you've probably noticed we're on the hunt for another attorney to join our growing firm. But not just an attorney will do. They have to be hungry, creative-minded, and relatable (among many other things). In fact, there are five key criteria we evaluate in a target before hiring them.

Sound like you? Good. Here's what we need to complete our dream team:

Law firms aren't exactly known for their forward-thinking views on technology. Windows 95, physical libraries, and attorneys who can't use computers are (believe it or not) still fairly common in today's legal world. But you won't see that at Gutwein Law.

We see things differently here, and we know in order to allow our clients to be forward-thinking, we need to be, too.

Frequently I hear from people who want to gift away their assets while they’re alive in order “to save taxes” and “make sure the government doesn’t take it all.” Unfortunately though, many of these people are following coffee shop advice from outdated sources or uninformed friends.

The reality is that the majority of people are better off not making gifts during their lifetime and passing assets to their children upon their death. Why, you ask? It's because of what's known as the "Step Up Basis" vs the "Carryover Basis." I'll give you an example.

Today marks Gutwein Law's fifth birthday, and we couldn't be more excited! It's been an unbelievable five years and we're incredibly happy to reflect on the ways we've grown. To help us celebrate this milestone, we wanted to take a look back at where we've been in the past five years, and where we heading in the next five.

So, why'd we start Gutwein Law? Well, as we always say, our firm exists for one reason – to help the best, most forward-thinking businesses in the world grow through high-level legal counsel. When we founded our firm, we knew right away we had a different perspective. As you may already know, we not only practice law on a daily basis, but business, too. A number of firm's team members own businesses themselves, so we know first-hand what our clients are after (sometimes before they do). We believe this approach, along with our other ideals, has strongly contributed to our success over the past five years.

At Gutwein Law, we understand navigating tax credits can be difficult. So, we've put together a list of tax credits for Midwestern states to help you get started. In today's blog post, we'll explore Minnesota, home to our first out-of-state office.

The number of minor league and team acquisitions and divestitures are on the rise throughout the United States. The cause? It can mostly be attributed to the growth of summer collegiate sports, new sports (such as Ultimate Disc, eSports, etc.), and the continual transition of mom-and-pop businesses being acquired by larger portfolios. But this recent trend is causing some unique hurdles in sports business.

Unlike purchasing a business in the open market, there's one more layer of bureaucracy to overcome in a sports. That extra layer is the league’s approval or disapproval of a new buyer (i.e., the Miami Marlins acquisition attempts). Sports team purchases come with great uncertainty as closing can't occur until the league approves its new "partner." And this process can be quite complicated depending on the league. So, below we've outlined the typical considerations and steps during the purchasing process in order to help leagues and buyers ensure their acquisition or divestiture deals go as smoothly as possible. This information comes from years as a sports executive, owner, lawyer, and now league commissioner.

A client contacted us and asked: “What is a family foundation, and should I have one?” This isn't the first time the question has come up, so I wanted to share our answer.

A family foundation is a way to obtain a charitable income tax deduction today while distributing the money to charities in the future.  It is a not-for-profit organization that holds funds and then disburses those funds to charitable organizations.  They are recognized as 501(c)(3) organizations and the person contributing to the foundation is allowed a charitable deduction when the property is transferred into the foundation.  (There are limits on the amount that can be deducted.)   So, someone puts their money into the foundation, and then the foundation distributes it to charities.

Should you have one?  It depends.

If you're not an attorney in Indiana, it's likely you've never heard of The Indianapolis Bar Association’s Bar Leader Series program. But don't let that take away from its importance. The Bar Leader Series is designed to connect young, energized lawyers with leaders in Central Indiana in order to help them grow into future leaders themselves.

I'm honored to say I recently participated and graduated from this program.

The concept of sustainability is virtually unavoidable in today’s world. Less open space, fewer natural resources, more mouths to feed, and a number of state and federal regulations to navigate. But even under these circumstances, Bio Town Ag, Inc. (BTA) is finding ways to improve the way we produce food, fuel, and fiber, all while revolutionizing sustainability in agriculture.

BTA is a multigenerational farm located in Reynolds, IN, a rural community, where farming is a way of life. BTA's farm operations consist of cattle and hog production, which also doubles as a Concentrated Animal Feeding Operations (CAFOs). Its cattle and hog production, combined with the neighboring row crops, are a microcosm of the area's agricultural interests and resources.

At Gutwein Law, we understand navigating tax credits can be difficult. So, we've put together a list of tax credits for Midwestern states to help you get started. Today's post? I'll walk you through our firm's home state, Indiana.

Now, more than ever, startup organizations are popping up and even moving to the Heartland. But what is it about the Midwest that has these startups trading the opportunity to sit beachside for flatland and grass? In other words, how are cities like Minneapolis, Indianapolis, Kansas City, and Madison luring new businesses to their respective states?

The Midwest is outgrowing the “Flyover Country” nickname, and it isn’t by accident. The lower costs, abundance of talent, and business-friendly policies found in the Midwest region all favor startup organizations. In fact, Forbes recently ranked the Best States for Business in 2016, and seven of the top fifteen are Midwest states. You read that right: half of the top fifteen states for business are located in the Midwest.

Our friends at M25 Group recently dug into this with their assessment of the best startup cities in the Midwest.

Still don’t believe it? Here are a few more reasons:

At Gutwein Law, we live by the idea of continuous learning and improvement. In fact, it's one of our five core criteria when evaluating potential employees to join our team. We feel it's not only beneficial to ourselves, but we hope it ultimately impacts our clients and others around us in a positive way. So, in addition to attending CLE's, volunteering for speaking engagements, mentoring, judging panels, and holding internal cross-training sessions, we read. A lot.

One of my latest and more valuable reads is a book by Brett Bartholomew called Conscious Coaching: The Art & Science of Building Buy-In. If you're not familiar with the title, Conscious Coaching provides insight on how to be a better leader, not only in sport, but in the workplace and in life in general. Although it was originally intended for strength and conditioning coaches, the principles and lessons throughout can be applied to leaders in any framework. The book details four components of the coaching compass: buy-in, relationships, social intelligence, and time. In a nutshell, Bartholomew brings a more balanced approach to coaching that involves science and art.

Think of a lawyer. What comes to mind? If you’re like some of America, you may not necessarily be thrilled with the image. But throw that idea out the window because I want to tell you about my experience working as a summer associate at Gutwein Law.                   

While wrapping up my last days here at the firm, I was asked to write a blog post about my experiences. The truth is, I could probably fill much more than a 500-word blog post about what I learned this summer, but I’ve done my best to keep it short. Here it goes:

Whether we -- as attorneys -- like to admit it or not, there are a few areas of law that are somewhat unclear, and ultimately, difficult to navigate. The world of intellectual property (IP) law is one of those areas that hasn’t yet fully been explored in various jurisdictions. But at Gutwein Law, we like facing challenges head-on – no matter how murky the situation.

Take ownership rights in intellectual property between the employer and employee, independent contractor, or consultant, for example:

Lawyers, in a sense, are like doctors. You might even compare them to car mechanics. Before you disagree, hear me out:

If you’re like most people, you have a general practitioner or “family doctor.” You see them regularly for checkups, in the same way you may go to your local car dealer for routine maintenance like an oil change. But what if you need something outside of the scope of work they cover? Say a hip replacement or a new paint job? You go to someone who focuses on your area of need, right?

You wouldn’t put trust in someone that doesn’t do work in those areas on a daily basis. And it should be the same when it comes to your attorney.

You have an idea. You form a company. Now you want to raise money from investors (or even friends and family), maybe through the sale of ownership, borrowing money, or a loan that could convert into ownership in the future. Seems straightforward, right?

Well, all of those interests and rights that you are considering are almost certainly going to be classfied as “securities” under applicable law.  Selling securities, in fact, is a complex process that requires careful navigation and thoughtful representation to not only protect your position from an ownership and contractual standpoint, but to ensure you’re abiding by both federal and state laws, and regulations issued in connection with the same by enforcement arms such the Securities and Exchange Commission (SEC).

When it comes to selling securities, you have essentially three options:

Roger Goodell. Adam Silver. Rob Manfred. You’ve likely seen them on TV, wearing well-tailored suits and reading meticulously-written speeches. One day they’re responding to a PR crisis involving a high-profile athlete, another delivering Draft Day selections. That’s the life of a League Commissioner – at least how the public generally sees it.

But, as a League Commissioner myself, I know first-hand quite a bit of work goes on beyond what airs on TV.

A successful League Commissioner must wear many hats: business person, speaker, politician, lawyer, and public figure, to name a few. They’re required to listen and respond to the demands of players, coaches, fans, and team owners.

Above all though, a League Commissioner must provide value to teams and their owners, while ensuring a consistent and positive fan experience across the league.

With that in mind, I’m here to shed light on what makes for a great Commissioner. Below are three things League Commissioners could, and should be doing, to help foster league success:

      Butler University recently ran its first cohort through a business program for lawyers called Lawyer to Leader and I was fortunate enough to be one of the participants.  If you desire to become a leader in your law firm or organization, I highly recommend you apply for the next class at Butler.  This program was especially fitting for me as our firm has grown from 5 people in 1 location to ~25 people in 3 locations in the 4 years we've been in existence.  I've personally gone from 95% legal work for clients to less than 25% legal work for clients and now most of my time is devoted to strategy, communication and team development.  The years of being part of many business decisions with clients and having a significant interest and activity in outside interests in real estate services and venture capital have been very helpful but time dedicated to concentrate on developing leadership skills has been extremely valuable for my own growth and I plan for the numerous lessons to impact our law firm. 

 I love baseball - the sport (the athleticism required, the explosiveness, the coordination), the game (the strategy, knowledge of the game and its intricacies), and of course the competition.  Baseball season is officially under way.  Pitchers and catchers have reported for MLB spring training, last Friday was opening day of college baseball and winter practices have started for youth baseball.   

For several years now, I've been coaching youth baseball and one of my favorite things about coaching is watching a young boy transform over a season of baseball - turning from that scared boy timidly stepping into that scary batter’s box, all alone to the confident plate pounding little man child ready to knock it out of the park. The thoughts running through his head

This week, we continue our analysis and recommendations on Indiana’s $1B investment in innovation through industry initiatives. To read through each part of our series to date, start here. The Indiana Economic Development Council’s 4^th area of focus states:

In April and June, we published blog posts about changes in overtime laws for the white collar exemptions set to take effect on December 1, 2016 (see Changes in Overtime Laws are Coming and Update: Changes in Overtime Laws are Coming). Yesterday, an Eastern District of Texas Judge issued a nationwide injunction barring the implementation of the new overtime rules.  This means that for now, the salary thresholds for the white collar exemptions remain unchanged and are not increasing.

During the last month, our firm has been outlining what Indiana’s $1B investment in innovation means and our recommendations for how to most effectively use it in secondary and higher education. This week, we will be discussing the third area of focus on the Indiana Economic Development Corporation’s list and detailing our recommendation for what we believe would be most beneficial to future entrepreneurs. Here is how the State plans to foster growth among co-working spaces, incubators and innovation centers:

Over the past few weeks, we have both outlined what the investment entails, and gave our recommendations for how the funding can make an impact at secondary education programs. This week, we will be dissecting the second area of focus on the list, and giving our recommendation for what we believe would be most beneficial to entrepreneurs. According to the Indiana Economic Development Corporation, this includes

For the past few months, we have been discussing the questions companies should consider when initially considering a joint venture or merger (see Part 1, Part 2, and Part 3). In our final installment of this series, we will go over what questions will help determine the financial health of a prospective business partner’s company.

Earlier this summer, Governor Mike Pence proposed a $1 billion investment in Indiana innovation and entrepreneurship. Outlined in his proposal were six main areas of focus for the investment to go towards, as outlined in last week’s post and further elaborated on by the Indiana Economic Development Corporation (IEDC) here. This week, we will be dissecting the first area of focus on the list, and giving our recommendation for what we believe would be most beneficial to future entrepreneurs. As stated by the IEDC, this includes:

In July, Indiana’s governor announced a proposed $1 billion injection into Indiana innovation and entrepreneurship. The announcement was made at the Eighth Annual Innovation Showcase, hosted by Venture Club of Indiana, and sponsored in part by Gutwein Law.

It takes a lot of hard work and dedication to build your own business. When the time comes, you may like to keep it in the family. Having a succession plan in place will ensure that the legacy of your business will live on in accordance with your wishes. As you begin thinking about your options, you may come to the realization that your children aren’t yet ready to take over the business. This raises a number of additional questions: What will happen until my children are ready? What if they aren’t interested? What will I do if they aren’t?

There is a lot to think about when putting together a succession plan for a farm: Will it stay in the family or be sold? If it does stay in the family, will all or some of your children remain active? How long do you want to stay involved in the operations? The path to get where you want can be daunting. Luckily, there are certain steps that can be taken now to make the process easier when you are ready to transition. One step we suggest is to separate the farm land from the farming operations.

Over the past two months, we have been discussing questions to consider when entering into a joint venture or merger (see Part 1 and Part 2). Once you and your potential partner have aligned on your business philosophy and products or services, it’s time to start thinking of your employees.

The Indiana Commercial Court Pilot Project has now been up and running for 3 months, joining the 22 other states that have specialized commercial courts. The pilot, which is not to exceed three years, began on June 1, 2016, and has since been implemented in six courts throughout the state of Indiana.

If you’ve been going to the Venture Club of Indiana’s Innovation Showcase for the past few years, you will have noticed that there was a change in the process this year. One of the major changes we saw was the addition of a pre-screening to the selection process. Because of this, companies who made it through were able to pitch for five minutes rather than one.

Last month we discussed questions to consider regarding character and philosophy before entering into a joint venture or merger. After you have a foundational understanding of what is important to your future business partner philosophically, it’s time to begin asking how your products and services will integrate.

There are many important considerations when entering into a joint venture. Some of the first things that should be considered are the character and philosophy of the businesses joining together. Before determining the logistics of the business combinations, it is important to make sure philosophies and motivations for running the business align. Failure to be on the same page regarding these topics can either make or break your venture’s success.

In April, we published a blog post titled “Changes in Overtime Laws are Coming.” Since that time, on May 18^th, 2016, the Department of Labor officially announced the publication of the rule updating overtime regulations. The changes will take place December 1, 2016, giving employers plenty of time to prepare.

In this post, we simply hope to update our previous post with specific information that was not available at the time.

No matter the size of your portfolio, there are several opportunities – and responsibilities – attached to each and every patent you hold. Different patents can play different roles in supporting your overall business strategy, possibly underpinning direct sales and licensing revenue simultaneously, depending on the business model of your company.

Previously in this blog we showcased Lafayette, Indiana and Indianapolis, Indiana as fast growing hubs for new startup ideas. Another city that may not always come to mind when thinking of a new startup hub, is Lansing, Michigan. Like Lafayette, Lansing hosts a Big Ten school that has recently put a strong emphasis on entrepreneurship, both for its students and the community as a whole. 

At some point in life, many of us will sign a “Power of Attorney” (POA) and designate one of our children to be our “attorney in fact.”  Or, perhaps we have been named as attorney in fact for our own parents.  Being designated as an attorney in fact means that you have the authority to transact business for the person who appointed you (the principal).

You’ve been searching for weeks on every career site possible, and you’ve finally found the posting, the one that details exactly what you’re looking for. The interview process is crucial to landing any job, and you want to make sure you ace this one. Maybe you’re fresh out of college or you’re looking for a great change. You may have had fifteen professional job interviews in your lifetime or this may be your first. How do you make sure you’re putting your best foot forward?  To help you in this process, I’ve outlined the things I’ve learned at Gutwein Law on getting your resume noticed and making the best impression on your potential employer. This list is not all-inclusive, and you may think some are common sense – you may be right, but we all need refreshers sometimes, right? I know I do!

Many people may be surprised as to what all qualifies as a “security” under the federal securities laws, and the Indiana Securities Act (ISA). A security is often thought of as a stock or bond, but can also include “promissory notes, investment contracts, and interests in limited liability companies, to name a few,” according to Indiana Secretary of State and the seminal U.S. Supreme Court Case of Howey.

Certain preconceptions of corporations follow the historical belief that corporations exist solely to maximize profits for shareholders. As such, a profit mandate gives those in charge much less of a choice than they might prefer. With the advent of businesses moving to a social awareness business model, this has put constraints on the traditional corporate legal model. So, what if a corporation was able to seek profits while also considering their potential benefit (or detriment) to society? The answer in most states has been the adoption of benefit corporations (“B-Corp”). During the summer of 2015, Indiana passed legislation to join those states allowing the registration of B-Corps. As of the fall of 2015, there are thirty states that have enacted legislation allowing for this particular type of entity.

Think back to the last time you made a purchasing decision. How many friends did you confer with? How many websites did you consult? How many stores did you visit? People are hungry for information, especially when making decisions – and legal information is no exception.

The Department of Labor is in the process of making significant changes to two exemptions that could significantly impact your company: the white collar overtime exemption and the exemption for highly compensated employees.  The final rule has not been published, but employers should consider making preparations now based on the proposed rule. 

This blog was originally written as a guest post for Indiana on Tap in November 2015. 

In my last blog post, I touched briefly on how breweries should go about enforcing their trademarks and protecting their brand. This blog post is going to jump in and discuss some different anecdotal tales on how breweries have enforced their trademarks and avenues that are available to do so.

Earlier this month, I was given the opportunity to speak with an entrepreneurship class at Purdue University, regularly taught by Tim Peoples – who is also the Director of Entrepreneur Services and Programming for the Purdue Foundry. My goal going into this class was to give the students a basic understanding of the options and processes that go into forming a company.

Filing your trademark registration application is a simple concept. But the process you must follow and the rules governing that process are complex. Many wonder whether they would be able to successfully register a mark on their own, or if they should go with a legal technology website or law firm. Here are the three options you have along with their respective pros and cons:

If you own real estate, it’s likely you recently received a new assessment from your County Assessor.  Whether the property is your primary residence, a multi-unit apartment building, or commercial space, the assessed value can have a significant impact on the property taxes that you will owe the next year and beyond.  The assessed value is determined on March 1 of each year, and is based on several factors depending on the type of property.  The County Assessor considers everything from neighborhood and build quality for residential real estate, to estimated net operating income and capitalization rates for commercial properties.   Because a majority of the factors considered are often subjective and estimated, the assessed values can be significantly higher than the actual value of the property or neighboring properties.  

So if you think your assessment is wrong, what is the next step?

If you are or have ever been through the process of raising private capital for an emerging company, you are well aware of the regulatory framework that seems to have been created to test your commitment.  When you raise money for your venture you are almost undoubtedly selling a "security."  The offering and sale of securities are regulated by both the federal government and each state which has jurisdiction. What this means:  when you raise money, the securities you are offering are either: (1) registered; (2) exempt; or (3) illegal.  Almost every new and growth stage company will rely on an exemption from registration which is an expensive process and offering illegal securities is not a solid business plan.  (Before you ask, there is no "friends and family" exemption.)

Throughout the NFL playoff games these past few weeks, there have been many injuries sustained by players - even some that may impact this weekend’s championship game (think Carolina Panther Thomas Davis’s broken forearm). But, none stick out more than the grizzly hit that left Antonio Brown with a concussion and forced him to miss the AFC divisional game.  When I saw that hit, I immediately thought of all the commercials I had seen for the movie Concussion and how much bad press the topic of concussions is generating for the league. That got me thinking, “I wonder if the NFL signed off on all the league’s and team’s logos used throughout the film.” 

Though it may not get the publicity of cities like Chicago, Cincinnati, or Kansas City, Indianapolis is bolstering its own growing startup community. While nearby major cities hope to become the “Silicon Valley of the Midwest,” Indianapolis boasts a personality of its own – holding strong to classic Midwestern attributes of community support.

I started with Gutwein Law one year ago from January and the occasion prompted me to reflect upon the differences I experienced between the Chicago startup community and the startup community here in Indianapolis.  On a high level, it’s hard to deny the ubiquity of Hoosier Hospitality and its role in providing a foundation for support and comradery of startups versus the seemingly transient feel of Chicago’s startup community at large.  Here’s what I’ve noticed so far.

While many people initially think of enforcement, the reality of patent enforcement is that it’s long, expensive and uncertain. Most companies don’t randomly engage in patent litigation, and neither should you. Here are six additional ways you can put a patent to work:

This blog was originally written as a guest post for Eleven Fifty Academy.

In the age of new technology, in which companies are spawning every day and an abundance of talent can be found in-house at many companies, developers and software engineers often consider doing work on the side – whether it be at a startup or personally starting their own business.  It is critical that these developers are aware of the limitations their employment agreements might place on them and any activities they carry out outside of work.  An individual’s employment agreement can often consist of a variety of contracts and clauses that affect side work, including the following:

What is Intellectual Property (IP)?

Last year, Gutwein Law opened our second office in Indianapolis, Indiana. Thirteen months and three additional attorneys later, and our intellectual property practice is flourishing. We wanted to come up with a way to share our collective knowledge and experience with the people who need it but may not be ready to formally hire an attorney yet. From there, a solution was born.

When the United States Constitution was adopted, it included a provision for preserving intellectual property, done as a means to protect those who invent new products and develop new methods useful to society. Recently, that protection has been morphed into a tool at the hands of people hoping to make what many argue as an undeserved profit. These non-practicing entities (“NPEs”) have come to be infamously known as “patent trolls.” As patent troll litigation heads towards an all-time high, many companies, especially small business, are worried about being targeted by these NPEs, who are getting away with large profits.  The actions of the NPEs can also be seen as hindering the advancement of innovation, the very thing the patent system was put in place to promote.

As we head into 2016, it is no secret that startup culture is spreading beyond the coasts. Cities throughout the Midwest are claiming qualities that new companies are finding increasingly alluring. Thinking about startup hubs in the Midwest, a few cities come to mind: Chicago, Cincinnati, Kansas City, even Detroit. One city that might not be on many people’s radar is Lafayette, IN – and it should be.

This blog was originally written as a guest post for Indiana on Tap. If you missed it, you can find Part 1 here.

In Part 1 of our Trademarks & Craft Beer series, we discussed what trademarks are and how you can determine if you eligable to receive one.  In this post, we will dive deeper into how to actually receive a trademark and the steps that should be taken it enforce it.

How do you receive trademark protection?

A trademark qualifies for protection in two instances. The first and easiest way to receive trademark protection is to be the first to use the mark in commerce. Case law has interpreted the phrase “using the mark in commerce” as being the first person to sell your specific product to the public with your identifying mark on it. So, if you are the first to sell “Megahop Celebration” in connection with the sale of that beer, you will receive priority to use that mark over other future users. Unfortunately, the priority to use the mark is limited to the geographic area in which you sell your beer. So if you only sell “Megahop Celebration” in Indiana, and someone else comes forward later and starts selling the same beer in Oregon, it is unlikely that you will be able to prevent someone else from selling a beer with the same name in Oregon.  Plus, because the United States is a first-to-file system, if the Oregon brewery files for a federal trademark before you do, you would be limited to only using “Megahop Celebration” in Indiana.  So much for growing your brand.

If you missed it, you can find Part 1: FAA Regulations here.

On the TV show Modern Family, a drone spied on a sunbathing Gloria (invasion of privacy), Phil used his “professional aerial photography tool” or drone to find Luke and his friends (trespassing), and Jay crashed his model airplane into Phil while attempting to “thread the needle” (personal injury).  Modern Family comically illustrates some of the many potential legal issues drones present.  Before you or your company invests in a drone, you should consider three legal issues that are likely to be on the legal horizon for drone use:  tort liability, insurance, and products liability. 

Earlier this week, I met with the Greater Lafayette Regional Plan Steering Committee to lead a discussion on the entrepreneurial ecosystem in the Greater Lafayette area as part of a series of topic meetings aiding in the strategic plan development process. Our conversation can be broken up into four parts: 1) Why is a strong entrepreneurial ecosystem important? 2) What creates a strong ecosystem? 3) What is the current status of the ecosystem? 4) What strategies should be implemented moving forward?

This blog was originally written as a guest post for Indiana on Tap.

As most people know, the craft beer industry has exploded in the past ten years. In 2005, there were slightly less than 1,500 craft breweries in the United States. Now there are almost 3,500.  The explosion has led to a craft beer renaissance, which consumers have greatly benefited from. Breweries have been developing new styles and coming up with names that will make sure you never forget the beer you just finished. Names like Osiris® or Zombie Dust® automatically take our mind to a hop island paradise. As the explosion of new brews crowds bar taps and shelf space, protecting brands has become increasingly important.  

One of the best ways to protect your brand is to register your trademark. Doing so protects a brand’s reputation and it helps distinguish the quality of your libations from that of others. With only so many ways and names that you can coin the name of your beer it is imperative to choose a name that does not infringe on somebody else’s.

As a small business owner the stakes are high. At risk is the chance of spending thousands of dollars marketing a new beer to only find out that another brewery already has trademark rights to that name. To make sure that you do not make that mistake, this article will hopefully answer some questions that a new brewer or interested beer drinker might have about the ins and outs of trademarks, the process of obtaining one, and the strategy for enforcing it.

From expediting online order deliveries to gathering aerial information of farmers' fields with previously unseen economic and technological efficiencies, the drone industry could be the root of the next commercial revolution.  Drones, also called UAVs (Unmanned Aircraft Vehicles), were historically developed for military use, but we will likely see their commercial use increase exponentially as global businesses are expected to invest nearly $90 billion in drone technology in the next ten years.  Even if you or your company is not on the forefront of drone technology development, you should be aware of the implications of using a drone in connection with your business (or even recreationally).  

If you operate anywhere in the life cycle of business startups (founders, angel investors, lawyers, accountants, investment bankers, other consultants, venture capitalists, strategic acquisition managers, etc) you should read Venture Deals by Brad Feld and Jason Mendelson.  This is the most practical, succinct and insightful book on the market about venture deals.  

As we approached the nine-year work anniversary for one of our outstanding paralegals, we asked the question, “What makes a great paralegal?”  In every field, there are key characteristics necessary for a job well done, whether it’s an outgoing personality or the ability to switch gears in an instant.  We’ve outlined the keys to success that make our dedicated staff of paralegals indispensable.

Gutwein Law is happy to bring you another client bio, this time for Yats®!

We’re excited to bring you our client bio for The Anvil!

We’re excited to introduce to you our next client bio, Spensa Technologies.

Gutwein Law is excited to share with you another client bio, Mimir LLC.

Gutwein Law is proud to announce its sponsorship of the 2015 Innovation Showcase. This sponsorship demonstrates our commitment to emerging businesses. 

Gutwein Law celebrated the opening of our Indianapolis office last Tuesday, April 28 with an open house and ribbon cutting with the Indy Chamber. 

Gutwein Law is proud to be a sponsor of The Boiler competition, hosted by the student-run coworking space, The Anvil. Started in 2013, the competition’s purpose is to give students the ability to pursue entrepreneurship outside the classroom. The Boiler takes place over eight weeks and provides the teams with mentorship, office space, workshops, and funding.

Spring break was great this year.  Hanging out with the family, baseball, fishing, the beach, kayaking and a bunch of reading.  One great book I read was Startup Communities: Building an Entrepreneurial Ecosystem in Your City by Brad Feld of Foundry Group.

Yesterday we had the privilege of hosting the Greater Lafayette Commerce Business After Hours.

We're excited to bring you another client bio: introducing CrossFit Uncommon! 

Gutwein Law is excited to be teaming up with zWORKS as a Founding Partner and exclusive legal sponsor.  Scheduled to open in April, zWORKS will be Zionsville’s entrepreneurial and coworking center.  It will serve as a hub of work and will provide startup acceleration resources for entrepreneurs such as educational programing.  zWORKS will be located at 85 East Cedar Street in downtown Zionsville.

Gutwein Law understands the ongoing evolution of both large and smaller scale agriculture operations.  The current agricultural production and related environments increasingly demand a business approach to be successful--it has become "agribusiness." 

This blog was written as a guest blog post for Element 3.  

At Gutwein Law, we want to help educate entrepreneurs on how to adequately protect themselves in the realm of trademark law. This post should help you decide whether trademark protection is something in which you should invest.

If you are looking for an investment opportunity or a different home at a deeply discounted price then the county tax sale might be the right place for you. Many people are aware that county tax sales are a great opportunity to purchase investment properties at discounted prices, but most do not realize the steps involved between bid and ultimate ownership.

In Part 1 of the series on business combinations - mergers, strategic partnerships or joint ventures - we highlighted the 4 factors to consider before entering a term sheet or deep due diligence of a business combination: (1) Alignment of Character/Business Philosophy; (2) Human Capital and Physical Assets; (3) Market/Product/Reputation; and (4) Financial Health. 

Charles Schwab once said, “I consider my ability to arouse enthusiasm among men the greatest asset I possess. The way to develop the best that is in a man is by appreciation and encouragement.”

I am fortunate enough to be employed by a company who believes in this. It is for that very reason that I would like to share my story.

When dealing with smaller corporations owners/shareholders often have a more involved role in a business. Just because they are an owner, however, does not mean they have unlimited all inclusive access to the records of the corporation.  Indiana law requires that a corporation keep and maintain certain records. Shareholders of a corporation are entitled to inspect and copy these records, but only under certain circumstances.  The records are broken down into two groups, notice only and proper purpose.

Entrepreneurs often cite the limited liability protection afforded them by way of forming a corporation or a limited liability company as a primary purpose in creating the entity.  Sure, there is the aura of sophistication and achievement that comes immediately along with it (as well as several other benefits), but this personal protection seems to be a key factor in most formation decisions.

This summer, I completed my legal summer internship at Gutwein Law.  I am truly amazed at how much I learned in the 12 weeks that I was here.  From day one, the attorneys gave me exciting and complex issues to work on and these experiences allowed me to develop and grow as a professional and an individual. 

For those of you who have taken personality assessments in the past, you are aware that sometimes the results can show a completely different view of you and who you think you are.  For me, I had never taken any type of personality, work-style or behavioral assessment until I came to work at Gutwein Law.  I’ll admit, I was skeptical of what the test might say about me - did I know myself as well as I thought I did?

Worker classification is an important responsibility of any employer, with implications ranging from tax and withholdings liability to the employer’s liability for the worker’s conduct.  For tax purposes, the IRS has previously laid out twenty non-exclusive factors that it considered when making the determination as to whether a worker is an independent contractor or employee. 

We are very excited to announce that David Roberts had joined the Gutwein Law team and he will be opening our new Indianapolis office this summer!  

Let’s say you are a startup business and you are in the process of working with your attorney to develop a contract for your future clients. Should you include an arbitration clause to resolve dispute with your clients? Nine times out of ten, my answer to you would be no.

I just returned from the American Bar Association Technology Show in Chicago (ABA Tech Show).  What a rush, absorbing the newest technology for law firms and learning from presentations by the Nation’s leading tech consultants. As I reflect on what I learned, I’m happy to know that our office is up to date and secure in our practices.  In fact, it seems we are quite a bit ahead of the curve because we have adopted paperless policies and have a leading document management utility in place.  Of course, there is always room for improvement and I was able to get inspired to improve some of our practices.

Entrepreneurs create formal business entities (most often limited liability companies and corporations) for many reasons.  Founders commonly cite the limited liability protection and the professional impression it can have on vendors, customers and would-be investors.  While these are two major benefits of forming an LLC or corporation, this only touches on the predominant purpose that forming an entity can serve - building and protecting value. 

Business trends are pushing owners to look into faster and more efficient processes in the work place.  Electronic files, bigger servers and faster transmissions are quickly becoming a necessity for anyone hoping to keep up with their clients and outrun their competition.  But why have a paperless office?  Are there really benefits for your customer and your business?

Business Combinations - mergers, strategic partnerships or joint ventures typically have big impacts on companies.  Some transactions propel companies ahead while other similar transactions cripple them – they stagnate, leadership becomes unclear and both parties start reviewing the exit provisions of the transaction documents.  After watching deals succeed and fail over the years, I began to ask myself, what are the common threads?