Business and Comm Action Tips


Action tips- Commercial and business

  • Consult with counsel without delay.

  • Assemble all important documents including, for example, documentation related to the creation of your business (i.e., articles of incorporation, by-laws, operating agreements, resolutions, etc.), employment agreements, restrictive covenants, lists of proprietary information, contracts, email and text communications, drafts of contracts and related documents, insurance policies and any other document that you have that may relate to your dispute.  Even if a document may not seem important at the time, it may become so later.  

  • Keep copies of everything.  Ensure that electronic documents are not destroyed or discarded.

  • Assemble a list of witnesses and make notes as to what those witnesses know and their involvement in the transaction.  Think outside the box when developing a list of witnesses. For example, in a case involving employee dishonesty, outside vendors, professionals and agents with whom the employee has interacted and co-workers may have direct or indirect knowledge that is important to your case.

  • Maintain and assemble a detailed timeline of the dispute including, if applicable, the date and manner in which the potential dispute was first identified; the date and circumstances surrounding the drafting of pertinent documents such as contracts, by-laws, operating agreements, etc.; efforts taken to mitigate or lessen the extent of problems; telephone calls, email communications, text messages and anything else pertinent to your dispute.   

  • Do not discuss your case or provide recorded statements to insurance companies or third parties until you have consulted with counsel.  If you have already provided such a statement, take detailed notes to the best of your recollection as to what was said.

  • Print out paper copies of all related email communications and preserve them electronically.  Change all passwords as appropriate. Preserve all records and take steps to prevent the destruction or loss of records, including any electronic records. You do not want to be later accused of having destroyed evidence.

  • Keep in mind that in many cases, accounts and services provided by employers to employees are not confidential as between the employer and employee.

  • Take steps to print out paper copies of all email, chat and text messages (including, if possible, all information pertaining to the date, time, sender and recipient) and preserve them electronically.  Text messages and chats are particularly difficult and, in some cases, impossible to retrieve once deleted.  

  • Do not post comments or other information regarding the dispute on social media.  The use of social media in such situations can be dangerous and detrimental to your interests.  If posts have already been made (even if you think the information was posted with limited access privileges), print out paper copies of the postings and preserve them electronically; but take them down and adjust your security settings to make your postings private.  You want to preserve evidence and not later be accused of destroying it.

  • If you are aware of any information posted on social media by others that pertains to your dispute, print out paper copies of the postings and preserve them electronically.  Such postings are often deleted and there may be no means of retrieving them electronically.

Additional tips in the event you are involved in a dispute related to employee dishonesty (i.e., embezzled or misappropriated funds or property, disseminated confidential information or trade secrets or the like):

  • Immediately identify persons with online access to financial accounts (i.e., banking, investment, etc.) and signature authority to evaluate whether such access and authority should be terminated.    

  • Evaluate the impact of immediate notice to and termination of an employee suspected of such wrongful action.  There are some circumstances in which termination should be immediate and others in which it should be delayed or handled in a particular manner.  An attorney can help you sort out those issues. 

  • Take immediate steps to protect business accounts, confidential information, property and to preserve documentation and evidence.  It is not uncommon in cases involving employee dishonesty for the problematic employee to have maintained two sets of books; to have taken records home to prevent discovery by the employer; to have misused online access to accounts; to have misused passwords to lockout a business from its accounts; and/or to have made damaging disclosures of sensitive or confidential information.  

  • Undertake a complete and careful financial analysis of known and potential losses.  Consider engaging an accountant or forensic accountant to assist you.

The above are just some examples of ways in which you might protect yourself in the event a dispute arises.  An attorney will be able to advise you as to additional means and how best to accomplish your objectives.  

Consult a dispute resolution firm such as Jacobs & Barney to evaluate your case, advise you as to its strengths and weaknesses, assist you in your decision-making processes to resolve the dispute and work towards a satisfactory and cost-effective resolution to your problem.

Call us at Jacobs & Barney at 800-830-1250 to discuss your legal matter.