Page 5 – Adishian Law

This article focuses on the concept of unequal bargaining power. Unequal bargaining power occurs throughout business and life. Being aware of when you are facing unequal bargaining power will help you strategize for your best possible outcome and lessen your risk.

Case Study: “Hitching Your Wagon (“Business”) to a Star (“SuperNova”)”

Partnering with a dominant corporation (SuperNova to use an astronomy analogy) by joining their eco-system can often be a smart and fast way to scale a business.

These positives however, are often offset by a loss of bargaining power, which shows up as a shifting of risks onto to the weaker party.

The underlying contracts are often very one-sided (in their favor) and can be legally revoked or altered almost at will. Whenever entering into such a relationship, you will want to look at the future risk of cash flows.

Can my (dominant corporation) partner change terms?
If so, do I get notice, or can it be overnight?
If so, what happens to my business?

If you decide to hitch your business to a economic Supernova, it is important to take steps to maintain the certainty of your future cash flows and quickly diversify your company’s dependence upon one relationship for its growth or existence. You will want to consult with a solid business lawyer to review contracts and advise you as to potential risks as well as steps to mitigate those risks.

About Adishian Law Group, P.C.

Adishian Law Group (https://adishianlaw.com) is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. As of November 2015, the firm has represented corporate and individual clients located across 22 California counties, 13 States outside of California and 9 foreign countries in over 480 legal matters. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco.

For more information about this case, contact Chris Adishian:

California leave laws are complex. California leave laws are inter-related. California leaves laws are always changing. We receive calls all the time from our clients and potential clients asking what is the correct way to handle an employee who has requested leave or is out on leave.

This is one of the most complicated areas of California Labor Law. Employers are obligated to provide an ever-changing array of leaves to employees who qualify. Some leaves come with job protection and some do not. On the employee side, it is important to understand your evolving rights as well. Many employees do not understand what leaves are legally available to them.

Disability claims appear to be on the rise. In disability cases, Employers also have an obligation to make a reasonable accommodation and engage in a good faith interactive process provided that they are on notice of the disability. However, the employer is not obligated to suffer a “hardship” as a result of the proposed accommodation — and leave itself is a form of accommodation. But how much leave is enough before you can terminate an employee? The law is not clear.

A common scenario we see is where our corporate clients find themselves in an apparent never ending “limbo” where an employee has exhausted all legally required leave, but the employee has not returned to work, and is requesting additional leave. If they fire the employee, they could face a “retaliation” lawsuit even where they provided legally required leave. One mediator (a retired Judge) summed it up humorously as: “Welcome to California, home of beautiful weather and [##%!] legislation.”

The best an employer can do here is to either (1) allow the employee to remain on leave, and consult with an attorney before terminating or (2) obtain a written note from the employee’s health care provider that he or she is not able to return to work and will not be able to do so in the future.

About Adishian Law Group, P.C.

For more information about this article, contact Chris Adishian:

If you are an entrepreneur, you need to understand risk management and Insurance. Risk management and insurance knowledge is essential for any business owner, asset owner or executive charged with running the enterprise.

Are you a small business? These days that is generally viewed as any business below $50M in annual revenue. Are you insured? The answer is always YES. The question is how…

If you have not purchased insurance, then you are “self-insured” – essentially relying on a combination of faith, your business cash flow and assets, and your personal cash flow and assets. Once you have a business of any size, it is wise to defend that business and cash flow with a combination of law and insurance. The foundation of a long term successful business is growing, recurring cash flows. Your cash flow cannot grow if it is always paying liabilities, and it won’t recur if one of the liabilities put you out of business.

Two components of your business advisory team should be a solid business lawyer and an experienced commercial insurance agent.

About Adishian Law Group, P.C.

For more information about this article, contact Chris Adishian:

EL SEGUNDO, CA (November 9, 2016)— Adishian Law Group is pleased to announce that Adishian Law Group, P.C. and Adishian Capital were profiled in the current issue of Southbay Magazine.

Southbay Magazine (November 2016)[/caption]

As the magazine states, “Adishian Law Group practices business, employment and real estate law, and Adishian Capital is a licensed real estate brokerage that
provides property management services and select brokerage services. Owner Chris Adishian started the law firm in 2003 and Adishian Capital in 2007.

FAST FACT:

From their South Bay headquarters, Adishian Law Group has represented clients in 22 California counties, 12 states outside California and 9 foreign countries.

What would you like potential clients to know about you?

“Our work at Adishian Law Group includes leading mission-critical transactions and litigation, and high-stakes employment cases involving highly compensated professionals. Together with Adishian Capital, we deliver ‘family office’ real estate capabilities—giving clients relationship continuity across all their real estate activities.”

What’s next for your firm?

“Adishian Law Group completely upgraded its technology in the past 12 months so we can continue to provide the highest quality legal services with cutting-edge hardware and software. Adishian Capital has grown to more than $50 million in assets. Prudent growth is the plan.”

What’s most rewarding about your work?

“Our clients inspire us—they’re proven leaders in their industries and professions, and we have a lot of fun working on their behalf.”

alg-acap-16 — L to R: David Simmons, Gladys Mydland, Chris Adishian, Heather DeFalco, Erik Bleitz, Patricia Parker, Tamara Cook, Andrew Messori

Tell us about your team

“I’m really proud of the team. We have a well-educated mix of Boomers, Xers and Millennials. Many have advanced degrees or even multiple advanced degrees. They work hard to deliver for our clients. A majority of them call the South Bay home.”

What are the current trends affecting your industry?

“New technology continues to disrupt the legal field. It is a dynamic industry and intensely competitive. Like our entrepreneurial clients, we’re constantly reviewing and adopting technology tools to improve professional service delivery.”

To what do you attribute your success in this industry?

“We’ve earned a reputation for being friendly, fair-minded and respectful. This extends to our clients, coworkers, vendors, clerks, judges, opposing parties and their attorneys or advisors. As a result we’re able to close deals, resolve litigated disputes and still build relationships. In fact, a number of our clients were formerly ‘across the table from us,’ either in a negotiation or litigation. Our former opposing counsel are among our best referral sources.

Click these to read the profile on oursouthbay.com and to view the full-color original.

To arrange a call with Adishian Law Group or for more information about this article appearing in Southbay Magazine 2016, please Contact Us.

EL SEGUNDO, CA (November 9, 2015)— Adishian Law Group is pleased to announce that attorney Chris Adishian was profiled in the Southbay Magazine 2015 Trusted Advisors Issue.

2015_SB_Cover — Southbay Magazine (November 2015)

Adishian Law Group practices corporate, real estate and employment law. Their work includes leading mission-critical transactions and litigation, and high-stakes employment cases involving highly compensated professionals. Their affiliated property management firm, Adishian Capital, provides ‘family office’ real estate capabilities, giving clients relationship continuity across all their real estate activities. Owner Chris Adishian, raised in Palos Verdes, started the firm in 2003.

Chris Adishian, Founder
Adishian Law Group, PC
Adishian Capital

Tell us a client success story.

“It was a typical Friday afternoon when we got the call: our soon-to-be client had filed an Equal Employment Opportunity Commission (EEOC) complaint alleging wrongful termination, was scheduled for Mediation in just five days and had no attorney! The employer was a huge, privately held software company represented by one of the world’s largest law firms. Our staff worked all weekend building the case using our software tools and drafting the mediation brief. At mediation, all parties began relying on our work product and timeline of events to evaluate the case. The mediation concluded with our client receiving a very favorable settlement (after having been terminated with zero compensation). More stories are available on our blog.”

What question or concern do you frequently hear from clients?

“From business owners: ‘Can you review/negotiate this contract for me?’ or ‘I’ve been sued by a former employee.’ or ‘An employee went out on leave. What do I do?’ or ‘How do I prevent myself from being sued?’ or ‘I’m ready to sell my business.’ From executives and professionals: ‘I’ve been wrongfully terminated/ discriminated against.’ or ‘I’m owed a lot of money.’ From real estate clients: ‘My tenant (commercial) has sued me.’ or ‘We want to buy this building.’ or ‘How do we (re)negotiate our lease?’ or ‘Can you manage our properties so we can focus on our business?’”

FAST FACT

Prior to starting his law firm, Chris worked at Arthur Andersen and Montgomery Securities in San Francisco.

Tell us something unique about your business.

“For clients active in real estate – owning, buying, selling, leasing or exchanging –our combination of a real estate law firm with an affiliated property management firm is unique.”

How do you advise your clients to achieve and maintain success?

“Our clients are already successful – they are proven leaders in their industries and professions. They are proactive, smart, kind, risk-takers and survivors. We’re privileged to be selected as their law firm.”

Click these links to read the profile on oursouthbay.com and to view the full-color original.

To arrange a call with Adishian Law Group or for more information about this article appearing in Southbay Magazine 2016, please Contact Us.

EL SEGUNDO, CA (October 2015)— Adishian Law Group is pleased to announce that attorney Chris Adishian was profiled in the current issue of Chadwick School’s COMPASS Magazine.

CHRISTOPHER ADISHIAN ’87

Like many Chadwick alumni, Chris Adishian ’87 vividly recalls outdoor education. He went rock climbing at Joshua Tree National Park, made two weeklong camping trips along the Colorado River, camped and hiked on Catalina Island, and participated in a “home and away” exchange with a private school in Connecticut.

“These are just tremendous learning experiences for young students that stay with them for a lifetime,” Adishian says. “I still remember mine over 30 years later.”

But more than just for the fun of being outdoors, Adishian appreciates Chadwick’s outdoor education program for what it brings to each student’s sense of being.

“Chadwick’s commitment to educating the whole child is rare,” he says. “I believe it helps each child discover and develop his or her confidence, perspective, abilities, interests and potential.”

As a student, says Adishian, he “seemed to be always playing sports either during or after school.” He rowed during his freshman year at the University of California at Berkeley, and still takes yoga and martial arts classes every week. His other exercise, he says, comes from wrestling with his two children, Mark (4) and Talar (2). Adishian resides in Hawthorne with his wife Lena, and their children.

“My hope is that I can contribute my skills to help Chadwick achieve its short- and long-term goals…”

For Adishian, time out for fun and family can be hard to find. He balances his workdays between his legal practice, where he focuses on business, real estate and employment law (he earned his J.D. from Loyola Law School in Los Angeles), and his real-estate firm, where he manages approximately $33 million in residential and commercial property and makes good use of his B.A. in Mathematical Economics from UC Berkeley.

As busy as he is, Adishian suddenly felt like a man with time on his hands when Chadwick approached him about a trusteeship.

“Chadwick was such a positive, growing experience for me in so many ways,” he says. “When I was asked to join the board, it seemed like the natural thing to do.”

As an experienced world traveler, he admires the school’s global perspective, especially the opening of the campus in Songdo, Korea. “When I first heard about Chadwick International,” he says, “my first thought was, ‘That is simply brilliant!’ What a visionary idea.”

Now it’s his turn to help form the vision for Chadwick’s future. “My hope,” he says, “is that I can contribute my skills to help Chadwick achieve its short- and long-term goals so the school can continue to fulfill its mission for the students at Chadwick School and Chadwick International.”

Download a .PDF of the full-color original Compass Article.

To arrange a call with Adishian Law Group or for more information about this article appearing in Compass Magazine, please Contact Us.

In this latest installment, we revisit the topic of California non-competition agreements (also referred to as California non-compete agreements). This time the focus is on California Business and Professions Code 16600.

In the recent case of Golden v. Cal. Emergency Physicians (9th Cir. 12-16514 4/8/15), the 9th Circuit revisited California’s stark prohibition against non-competition agreements (aka non-compete agreements). In this case, the Court held that the district court “abused its discretion” in holding that California Business and Professions Code 16600 (prohibiting non-compete agreements) did not apply to a no-employment provision contained in the drafted settlement agreement.

In summary, Dr. Golden apparently filed a discrimination lawsuit against Cal. Emergency Physicians (CEP), and the parties ultimately drafted a settlement agreement. In such agreements, there is typically a routine no “re-employment” clause. Many employers obviously want closure, and want certainty that once they settle a claim with the employee, the employee is not going to re-apply for a job next week.

The particular clause at issue provided as follows: “that…Golden shall not be entitled to work or be reinstated at any CEP-contracted facility or at any facility owned or managed by CEP.” It went on to state “if CEP contracts to provide services to, or acquires rights in, a facility that is an emergency room…at which Golden is employed or rendering services, CEP has the right to AND WILL terminate Golden from any work in the emergency room without any liability whatsoever.”

In reaching its decision, the Court reasoned: “The courts of California have not clearly indicated the boundaries of section 16600’s stark prohibition but have nevertheless intimated that they extend to a considerable breadth. At the very least, we have no reason to believe that the State has drawn section 16600 simply to prohibit “covenants not to complete” and not also other contractual restraints on professional practice.”

While the big picture seems to be an affirmation of California clearly stated policy of “open competition and employee mobility”, the court left it to the district court to determine whether this language is in effect a “restraint of a substantial character to Dr. Golden’s medical practice.” In dissent, Judge Kozinski seemed to believe that it was impossible to determine at this point in time whether the provision was in fact a restraint on Dr. Golden’s ability to practice his profession, and that if it did work to that effect in the future, Dr. Golden could argue that the provision was void.

The case is not finished yet, however one implication is that a no re-employment provision drafted into a settlement agreement could perhaps be considered to be a violation of BPC 16600. Depending on other terms of the contract (i.e. whether or not there is a severability clause), either the entire agreement or just the restriction could be voided. If the settlement agreement is voided, then the employer will have paid the money and have no settlement. Of course, this would probably sort itself out, but it will cost (a) time and (b) money. Not a good square to land on. Alternatively, just that clause may be voided, in which case the employer will have paid the money and then the employee could re-apply, and claim retaliation if he or she is not hired. Again, not a place where an employer wants to be after settling a litigation.

Non-compete agreements remain a battleground issue in California, even with the strong language of BPC 16600 and accompanying California Supreme Court decisions, so we’re sure there will be more to follow on this topic…

Adishian Law Group is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco. As of December 2014, Adishian Law Group, P.C. has represented individual and corporate clients located across 20 California counties, 8 States outside of California and 9 foreign countries — in over 380 legal matters.

For more information about this topic or to speak with Chris Adishian:

EL SEGUNDO, CA (July 2014)— Adishian Law Group is pleased to announce that attorney Chris Adishian was profiled in the Southbay Magazine 2014 Trusted Advisors issue.

As the magazine states, “Behind every successful individual and company, you’ll likely find a trusted advisor-or a team of them. Professional experts inform you about your options, help you explore new ideas and discover solutions, and work with you to navigate the road ahead. It’s essential to select a proficient team of trusted advisors when making decisions that impact you, your business, your home and your family. The South Bay specialists on the following pages have expertise in a variety of fields. They are known for innovative solutions and top-notch client care … and they are who our readers tum to when making important life decisions.

“Adishian Law Group practices corporate, real estate and employment law. Their work includes leading mission-critical transactions and litigation, and employment cases involving highly compensated professionals and executives often with significant equity. Owner Chris Adishian, raised in Palos Verdes, started the firm in 2003, after working at Arthur Andersen and investment bank Montgomery Securities in San Francisco.”

Tell us something unique about your business.

“Our business and real estate clients benefit by having a legal team that is equally comfortable with legal briefs and complex financial models. Through our affiliated property management firm, Adishian Capital, we provide ‘family office’ real estate capabilities, giving our clients relationship continuity across all their real estate activities. In our employment practice, we represent both plaintiffs and defendants. We believe this dual experience saves our clients time and money in preventing litigation as well as litigating, valuing and resolving claims. In all areas, clients appreciate our communication and follow-through.”

Why does your industry appeal to you?

“The practice of law is ultimately a ‘helping’ profession. We exist to apply our skills and abilities to help our clients achieve goals and results that they could not achieve on their own. That is fulfilling.”

How do you give back to your community?

“Recently I was appointed as a Trustee to the governing body of Chadwick School and Chadwick International. It is part of our firm mission to contribute pro-bono services and make monetary donations to a diverse set of organizations.”

How does a client start a relationship with your firm?

“The attorney-client relationship is very important. After an initial inquiry or referral, we like to have an in-person meeting or conference call to listen to the prospective client’s needs. If we believe our skills will help the client and there is a shared sense of goals and expectations, we will proceed with an engagement.”

Give us a great piece of advice on how we can protect ourselves and our families.

“Be a good person. Treat people with respect. Do what you say you are going to do. Don’t take what is not yours. Buy insurance. Establish a relationship with an excellent, trusted attorney.”

(To read the original SouthBay magazine version click here.)

About Adishian Law Group, P.C.

Adishian Law Group is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco. As of March 2013, Adishian Law Group, P.C. has represented individual and corporate clients located across 20 California counties, 4 States outside of California and 9 foreign countries — in over 340 legal matters.

To arrange a call with Adishian Law Group or for more information about this article appearing in Southbay Magazine 2014, please Contact Us.

This article revisits our recurring discussion of attorney’s fees, with a focus on attorney’s fees in contracts.

Does California Allow One-Way Attorney’s Fees in Contracts? The short answer is generally, “No.”

Pursuant to California Civil Code 1717 “In any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (emphasis added).

In practice this means the party with the stronger bargaining power cannot create a “one-way” provision. Also this is a caution for many parties who are forming contracts in California but are unfamiliar with this provision.

What happens if a one-way provision is contained in a contract and the contract is executed? What determines the contract interpretation, the contract or the Statute? Probably no surprise here….Statute wins, and the Court will interpret and apply the contract in a manner consistent with California Public Policy as codified by CCC 1717.

There is a limited exception in 1717 “Where a contract provides for attorney’s fees, as set forth above,that provision shall be construed as applying to the entire contract, unless each party was represented by counsel in the negotiation and execution of the contract, and the fact of that representation is specified in the contract.”

About Adishian Law Group, P.C. Adishian Law Group, (www.AdishianLaw.com) is a California law firm with a statewide practice

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in the areas of Corporate law, Employment law, Real Estate law, Arbitration/Mediation Services and Class Actions (selective). Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco. As of December 2013, Adishian Law Group, P.C. has represented individual and corporate clients located across 20 California counties, 7 States outside of California and 9 foreign countries—in over

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Click now to submit your matter to Adishian Law Group for a free, confidential review.

For more information about this topic or to speak with Chris Adishian:

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This article focuses on attorney’s fees clauses in real estate leases. The principles here could apply to any written contract. Often times, the negotiation of attorney’s fees and the implications of having these clause become the “Game Within The Game:”

In California, unless attorney’s fees are provided for by statute or contract, each party will absorb his/her/its litigation fees. This becomes a consideration in whether or not to pursue litigation, or settling a claim. To use a simple example, if it will cost a Plaintiff $50,000 of attorneys fees (plus time, etc. etc.) to recover $50,000, such that Plaintiff’s net recovery is zero, is it worth it? Probably not.

Attorney’s fees provision change this calculation by granting the winner his/her/its attorney’s fees on top of the recovery. For example, if it will cost you $50,000 of attorneys’ fees to recover $50,000, but there is a statutory or contractual provision for attorneys’ fees to the prevailing party, then suddenly the Plaintiff’s net recovery is $50,000. On the other side, the Defendant’s exposure is much higher, as Defendant is now possibly paying 2x the original amount at issue.

As a Landlord when you are drafting your leases, look carefully at the attorney’s fee provision. Residential landlords generally have more assets and more bargaining power than tenants. Commercial landlords, aside from situations involving large national tenants (i.e. Home Depot, Walgreens, etc.), also generally have more assets and more bargaining power than their tenants. Given this relative relationship, Landlord’s often mistakenly believe that having an attorney’s fee provision in a lease will be a deterrent to litigation. Often times it is just the opposite.

Attorneys representing Plaintiff tenants (particularly residential tenants) typically work on a contingency basis, with the backing of an attorney’s fee provision in the event that they prevail. This is generally the first inquiry that a contingency attorney will take in evaluating a plaintiff’s case.

Landlords often don’t consider these provisions, or if they do, they mistakenly believe that the tenant will fear the prospect of paying Landlord’s attorney’s\ fees and it will be an effective deterrent. In the majority of cases, where there is a significant disparity between the Landlord and Tenant in terms of assets, resources and bargaining power, it is not a deterrent. If you are Landlord with an open ended attorney’s fee provision in your leases, you are inviting Plaintiffs’ attorneys to take a “free shot” with a Plaintiff who may have a marginal case and “nothing to lose” financially.

Better practice in these situations is to include provisions that either (1) cause each party to bear the its own attorney’s fees and costs or (2) limit attorney’s fees to some reasonable amount of money. Where the parties are more evenly matched in terms of assets and bargaining power, then this provision may serve as more of a deterrent to baseless or highly speculative litigation.

About Adishian Law Group, P.C.

Adishian Law Group is a California law firm with a statewide practice in the areas of Corporate law, Employment law, Real Estate law and Mediation Services. Adishianlaw.com is one of the oldest continually operating law firm websites on the Internet. The firm serves its clientele via three offices located in the major business hubs of El Segundo, Palo Alto and San Francisco. As of March 2013, Adishian Law Group, P.C. has represented individual and corporate clients located across 20 California counties, 4 States outside of California and 9 foreign countries — in over 340 legal matters.

For more information about this topic or to speak with Chris Adishian: