Is There A Way? Development Versus Impact

In one of my very first blogs, I talked about the "need to make a difference" as a strong motivator to stay engaged in the practice of law.  In the last blog, I mentioned my local governmental committee work and hinted at the battle between a developer's special interest and protecting the community assets of the Highline Canal trail and open space.  The developer has now presented to both the Parks and Trails Committee and the Planning and Zoning Committee.  One committee has recommended in favor and the other recommended against.

I have taken up the battle against a part of the development that puts a vehicular bridge carrying construction and local traffic in the way of a trail over which 100,000 people per year hike.  There are alternatives but other neighbors object to increased traffic, or the developer objects to the increased costs. I am deeply involved and will continue the good fight.

That being said, it is interesting to compare our local neighborhood fight to what is going on in Washington.  Polarization seems to prevail over compromise. So in our local case, you are either in favor of the development or against it.  One of my neighbors said it well when she said, while she would prefer the open space, she understands the rights of a landowner to develop a piece of land in a way that does not harm others. 

Is there a centrist or compromise position that allows development but minimizes harm?  I tend to be a centrist.  The Centrist position seems to repel many on the hard left or right but I think common sense should prevail over ideological positions.  I tend to think the commonwealth should prevail over special interest.  So... I will continue the good fight that will hopefully result in a solution that benefits all.  What are your thoughts on this topic? I truly am soliciting your feedback on this one so email me and let me know where you stand. 

  

I look forward to hearing from you. 

Sincerely,

Len Goldstein
Attorney at Law

Is incarcertaion the answer to immigration?

I did some follow up research on the immigrant kid issue I discussed in a previous blog.  The Office of Refugee Resettlement recently reported that for fiscal year 2014 68, 541 kids unlawfully entered the US.  It is expected that for fiscal year 2015 74,000 kids will enter.  Kids from Mexico are taken right back across the border.  The highest percentages of kids come from Honduras followed by Guatemala. Most kids ride a train through Mexico called La Bestia.  Neither the Mexican government nor the railroads do anything about it.  When the kids are caught at the border, the average time in a shelter is 45 days.  All kids are scheduled for a deportation hearing; there were no statistics on the average time for a hearing or the percentage of kids that are allowed to stay. There is neither legislation nor administrative action to address this situation.

The pattern of the US Justice Department in collecting fines without admissions of guilt continues.  There are currently several pending settlements over foreclosure and interest rate collusion pending, involving billions in fines.  The DOJ practice on collecting fines without admissions of wrong doing is not a deterrent. I did some research on the problem and the following statistics come from the Pew Center.   In 1980 the prison population in the US was approximately 500,000.  Currently, the population is 2,300,000.  We currently have more inmates than the combined 35 European nations.  The average cost per inmate in $40,000/year.  We now have over 70,000,000 people with criminal records.  There are now 3 pieces of legislation in Congress that looks at this problem, more importantly questions are being addressed that look at the relationship between higher incarceration rates and crime reduction and the relationship between wrongdoing and overregulation.

So getting back to the  question about jail time for breaches of regulatory matters:  I would lean against incarceration except for the most aggravated of economic crimes and in favor of individual civil and criminal liability and corporate and individual loss of license.

On a more personal level, and in the vein of making a difference, I am currently serving on the Greenwood Village Parks and Trails commission.  I had thought it would not be very contentious and I might contribute something that made a difference.  Oh how wrong I was.  Quickly into my term I ran smack into the dilemma of growth versus open space preservation: regulation versus free market.  Stay tuned for results in the next newsletter. Sign up for the latest updates if desired.

Should You Serve on a Board of Directors?

I am often asked about serving on Boards of Directors for publicly traded corporations, privately held corporations and non profits.  A board of directors is a body of elected or appointed members who jointly oversee the activities of an organization. Typical duties of a board of directors includes:

1. governing the organization by establishing broad policies and objectives;
2. selecting, appointing, supporting and reviewing the performance of the chief executive;
3. ensuring the availability of adequate financial resources;
4. approving annual budgets;
5. accounting to the stakeholders for the organization’s performance

Participation in a board can be an incredibly rewarding experience, but should never be taken lightly. Understanding the expectations of serving on a board is critical for a mutually beneficial relationship. Below is a list of questions which may help in making that decision.

For Nonprofits (NFP):

1. Do I have a passion for this nonprofit’s cause?
2. Do I understand what is expected of me, especially the fund raising expectations? What is the length of the term? Can I resign midterm?
3. What is an accurate picture of the overall financial and operational health of the NFP?
4. Is there any litigation pending or expected?
5. Is the NFP is good standing with both State and Federal authorities?
6. Does the NFP have satisfactory amounts of D&O insurance, does it advance costs and expenses of litigation and does it fully indemnify its board members?

For either privately held or publicly traded corporations:

1. What are the expectations of the each Board member, and what is the term?
2. For publicly traded corporations on what committees will I serve?
3. Have you examined past tax returns?
4. For publicly traded corporations have you examined past public filings including proxy statements?
5. Have you asked about the relationship between the Board and management?
6. Is there litigation pending or expected?
7. What is the compensation and expense reimbursement policy?
8. Does the Corporation have satisfactory D&O insurance, does it advance costs and expenses of litigation, and does it fully indemnify its board members?

While this list of questions is not all inclusive and each situation demands its own analysis, this is a great starting point to determine if serving on a board is right for you.  Do you have any other questions to recommend?


Len Goldstein, Denver Business Attorney at Law
lengoldsteinlaw.com

Designing Intellectual Property Strategy

There are many steps to constructing an effective IP portfolio and strategy. An IP portfolio and strategy can enhance the value of any business but most importantly startups.  In the initial stages of business, documented differentiation can make the difference between getting funding or closing the doors.  Having a realistic strategy can mean the difference between defending your business against infringement and monetizing you IP.

Patents protect an inventor’s creation, while trademark protection safeguards distinctive words, names, symbols, sounds and colors used to distinguish products and services of one business from another. Property that qualifies for copyright protection include literary works such as books and computer programs; dramatic works and the accompanying words; pictorial, graphics, photographs and sculptural works; motion pictures and audiovisual works; and sound recordings and musical works, including music from plays and dramatic readings, and recordings.

Inventing a product or service is the first step for any company. Developing a portfolio requires obtaining the appropriate intellectual property protection and understanding the processes by which you will protect you intellectual property. With a well-developed IP strategy, you can protect your company’s inventions and creative work, keeping tabs on how to allocate resources and when to explore new research and development opportunities. Here are five steps that can help you develop your own IP strategy:

1. Let your company’s size guide you

First, your company’s size and structure should guide your IP strategy. For defensive purposes If you have a small company with only a few employees working on an invention you might not need a formal IP strategy. A larger company would be wise to develop a detailed IP strategy. One of the most important areas to clarify is ownership rights and publication policies. The strategy should take into account previous agreements between the company and employees (or contractors).

Larger companies may want to outline the roles and responsibilities of managers and employees in managing and disseminating the company policy regarding intellectual property use to ensure everyone follows the proper procedures that will maintain the company’s intellectual property rights.

2. Establish guidelines for creating intellectual property

Decide how the intellectual property will be created. You should list each person involved in creating the work, then outline exactly what type of intellectual property protection you are seeking.  A search of prior art will become crucial to the development of your IP to ensure you don’t infringe on someone else’s IP. Requesting professional help to conduct a search is probably the better option. Your IP strategy should take into account whether or not the company can afford this preliminary intellectual property search. In addition, you should hold regular meetings to devise a plan of attack for creating your intellectual property. Taking into account the time for research and time to market.

3. Analyze your competitive advantage and barriers to entry

One of the first questions you should answer before you invest in creating any kind of intellectual property is whether or not you can reap the rewards of your work in the marketplace. Would your invention, brand or creative work give you a competitive advantage in the marketplace? You’ll need to do your research to see what’s out there and evaluate if you could capitalize on your work. The market climate for your product or service will dictate how and if you develop intellectual property as well as which kinds of intellectual property to develop.

·         You can gain a competitive edge by understanding and overcoming any barriers to entry, which include the following:

•  Are there key personnel who might impede the process?
• What is the cost to develop the product or service  and get it to market
• Will the product or service require regulatory approval?
• Are there any competitors who offer a product that’s similar to yours or are you the first to offer this type of product?

4. Understand third-party interactions

Problems and misunderstandings that may arise from third-party relationships are one of the surest ways intellectual property can be lost. Any third parties who could potentially be involved in any portion of the development of the product or service being protected should be considered in developing your IP strategy. Third parties can include employees, suppliers, partners, contractors and even customers. Your IP strategy should dictate any employee contracts, supplier and contractor agreements, confidentiality agreements and licensing options.

5. Review your intellectual property

The scope of protection of the intellectual property should also be included in the intellectual property audit to determine whether there may be any gaps in protection or risks in the development and intellectual property protection process. Monitoring what is going on in the market place and what the competition is doing is crucial.

Companies of all sizes can spend a lot of time on developing a product or service. An equal amount of time should be spent on developing your IP portfolio and strategy to ensure the maximum return on your intellectual property investment. 

Len Goldstein, Denver Business Attorney at Law

lengoldsteinlaw.com/