Archives for March 2016

Requirements for a Legally Enforceable Contract

The last year for which U.S. Census data is available (2010) showed there were 12.6 million job losses in the private sector. Within the same time period, the Small Business Administration collected data showing that nearly 600,000 small business “deaths” occurred. The reality of these numbers brings home an important fact: business contracts and employment contracts must be thoughtful, well-written documents that will be legally enforceable. There are several basic requirements that must be met for every contract.

Mutual Assent or AgreementRequirements

The word assent may be defined as both a noun and a verb. As a noun, its meaning is described as “a deliberate approval of known facts offered by another for agreement, consent, or acceptance.” As a verb, assent means “to agree or concur.” In both forms, mutual assent, or assent by all parties to a written agreement, is the first prerequisite of every legal contract. This is also sometimes referred to as a “meeting of the minds.” Every contract should clearly explain precisely what the parties are agreeing to, so a stranger to the agreement can read it and understand what the parties intended without resorting to outside or “parole” evidence.

Clear Terms and Definitions

All important terms use in a contract that have specific, non-ordinary meanings should be clearly defined. For example, if an agreement refers to an “effective date,” or the date on which a contract begins, that date should be specified. If a contract refers or relates to specific property, such as real estate, equipment or personal property, the property should be clearly identified. For example, real property should either be defined by a common street address, tax map parcel number, by reference to a recorded plat, or similar precise method. The term or length of time in which a contract is to be valid must be identified, either with beginning and ending dates or by reference to a specific period of time (days, months or years). Price, compensation or other monetary aspects of a contract must be clearly laid out. There should be no room for interpretation when such key terms of a contract are properly addressed. In addition, all other material aspects of an agreement such as services to be performed should be plainly spelled out, so there are no ambiguities. Again, the goal of a good contract is to clearly express the parties’ agreement so that no outsider (like a court, arbitrator or other decision-maker) must later divine what was intended at the time the contract was written.  

Compliance with Laws and Public Policy

Contractual agreements must take into consideration federal, state and local laws as well as public policy. If a business is regulated or otherwise affected by particular laws, any contract relating to that business must recognize and abide by those laws. For example, a contract relating to the sale of alcohol to the general public must ensure compliance with local liquor laws and ordinances. Any contract that is found by a court to violate or circumvent the law or public policy – for example, a contract for gambling in a state or locality where gambling is prohibited) – can be declared void and unenforceable as against public policy.

A disputed contract may well be the result of an error, carelessness, lack of thoughtfulness or planning at the time an agreement is written. In an effort to avoid or at least mitigate the effect of future disputes, careful consideration must be given when drafting and revising contracts. As many likely (and even unlikely) scenarios as possible should be considered and addressed. Even with careful planning and proper drafting of an agreement, however, contract disputes can and do still occur.

Whether you are facing business litigation or need to draft or negotiate a strong contract to protect your rights, expert and effective legal representation is advised. If you find yourself in a legal dispute, call the Atlanta business litigation and breach of contract attorneys at Brownstein & Nguyen for a free consultation. 

How do I become a naturalized citizen?

To understand how to become a naturalized citizen, let’s first take a look at what naturalization is. According to the United States Citizenship and Immigration Services (USCIS), “[n]aturalization is the process by which U.S. citizenship is granted to a foreign citizen or national after he or she fulfills the requirements established by Congress in the Immigration and Nationality Act (INA).”

NaturalizationEnacted in 1952, the Immigration and Nationality Act has seen many changes over the years. However, the Act, together with voluminous regulations and administrative decisions, is still the primary source of current immigration law. All portions of the INA may be referenced on the USCIS website.

The INA outlines the requirements necessary for naturalization. There may be different criteria depending upon the situation, but generally the following citizenship requirements must be met for naturalization:

  • Possess a green card or be a lawful permanent resident
  • Be at least 18 years of age (as outlined on Form N-400)
  • Provide evidence of having been physically in the United States for 30 months
  • Prove that you have been in the state or USCIS district you reside in for at least 3 months

Naturalization or citizenship applications for adults (Form N-400) and for children (Form N-600) may be filled out without the assistance of an immigration attorney. However, with 21 pages to complete on Form N-400 and 9 pages to complete on Form N-600, it can be difficult to complete the applications properly. Additionally, while the USCIS offers Tips for Filing and Frequently Asked Questions, navigating the legal naturalization process can become a complicated and hazardous task for unsuspecting applications. All too often we have seen cases where a simple mistake on an application has significant adverse consequences for the applicant down the road. Hiring a qualified immigration attorney often makes the difference in being granted citizenship or being denied. Unfortunately, there are far too many cases of vulnerable immigrants being preyed upon by the incompetence, or worse, outright fraud of lawyers and non-lawyers claiming to have immigration experience. For this reason, one should never allow a travel agency, notary public, or other non-lawyer or business to submit an application to the USCIS on their behalf. Also, before hiring an immigration attorney it is a good idea to check their license, credentials and background to ensure they are in good standing and have no prior complaints or actions against them.

Contact the experienced and successful immigration law team at Brownstein & Nguyen for the confidence and support you need in pursuing U.S. citizenship and other immigration needs. 

Partnership, Shareholder & Business Agreements – Ounce of Prevention

Ben Franklin once observed “an ounce of prevention is worth a pound of cure.” Perhaps that is why in 1752 Franklin helped to form the first fire insurance company of the colonies. In present day Philadelphia, one can still tour the city and see the fire insurance marks used over 200 years ago.

Wrongful Termination AtlantaIt is just as true that an ounce of prevention is worth a pound of cure when it comes to establishing and operating any business. Just as one would never dream of owning a home without having proper insurance in the event of a loss, insightful business owners seek competent business counsel and legal advice at the beginning of new business ventures. They understand that as a business grows, so too does the prospect of facing potential legal problems. In an effort to be proactive, owners forming a new business, partnership or a joint venture, or considering the sale of an existing business interest, know that obtaining strong legal representation at the outset is a necessary and worthwhile investment. Establishing clear guidelines for the ownership, management and operation of a business, including the rights and responsibilities of owners, in business formation documents and agreements can save time, money and headaches and salvage potentially disastrous situations down the road.

With over 25 years of experience in business matters and litigation, Brownstein & Nguyen has assisted countless clients navigating important legal issues pertaining to their businesses, ranging from relatively simple to highly complex matters, both in and out of court. When we meet a new business client, our experienced business lawyers know what questions to ask and which legal documents and relevant agreements need to be reviewed to quickly assess the legal health of a business and make recommendations for necessary improvements. When a new client comes to us with a brewing legal problem or business dispute, we are able to immediately focus in on the relevant issue(s), gather the pertinent facts, perform a limited document review, and advise the client of their legal position and strategies for effectively and promptly resolving the issue. For more complicated problems, including those that may not be solved without resorting to litigation, we offer highly skilled, experienced and effective representation in court. Many business disputes involve a breach of contract, while others may fall under the umbrella of business fraud or torts. When business owners reach the point where they can no longer work together, a business divorce lawsuit may be necessary.

In addition to providing sound, practical legal advice and counsel to small and medium-sized businesses, Brownstein & Nguyen has acted as litigation counsel in many business disputes including the following instances:

    • Represented Chapter 7 trustee of bank holding company in negligence and fiduciary claims against former officers and in an employee fidelity bond claim
    • Represented physician in business divorce litigation against former practice partners involving allegations of breach of fiduciary duty
    • Represented ambulance company owner in suit against former partner involving allegations of corporate waste, abuse and fraud
    • Counsel for principals in liquidated $40M+ firm in suit against national accounting firm alleging computer systems consulting negligence and breach of contract.
    • Represented employer in successful trade secret theft litigation
    • Represent numerous parties in breach of contract and other commercial litigation matters

While a specific outcome cannot be guaranteed in any case, strong and effective legal counsel is always advised. If you or your business is in need of legal counsel or assistance, contact the Atlanta business litigation lawyers at Brownstein & Nguyen.

Hope for Immigration Reform with Obama’s Proposed Budget

There is still hope for modest but helpful immigration reform in President Obama’s final proposed budget to Congress for fiscal 2017. The President’s call for immigration reform initially hit headlines and created waves in November of 2014 when he announced multiple executive actions designed to address the issue of illegal immigration at the borders and millions of undocumented aliens already in the United States. These initiatives included:

  • Broadening the eligibility criteria for the Deferred Action for Childhood Arrivals (DACA) program to include children under 16 who have been in the U.S. since Jan. 1, 2010, as well as extending relief and employment authorization under the program to three years
  • The introduction of a Deferred Action for Parental Accountability program, that would allow parents of U.S. citizens and other lawful permanent residents present in the U.S. since Jan. 1, 2010 the same period of deferment and employment authorization
  • Making spouses and children of lawful permanent residents and children of U.S. citizens eligible for provisional waivers
  • Simplifying the legal immigration process to continue aiding in job creation and economic recovery
  • Promoting and improving both citizen education and public awareness for lawful permanent residents

Unaccompanied minorThe administration’s budget, proposed on Tuesday, February 9, 2016, outlines many initiatives in support of efforts toward reform of the immigration system. The proposed $4.1 trillion budget would also create savings through immigration reform as a result of long-term investments in homeland security through the Department of Homeland Security (DHS). Proposed budgetary items that pertain to immigration include:

  • A reduction of immigration detention beds from 34,000 to 30,918, resulting in savings of $169.3 million. A portion of these savings would be re-directed toward cost-effective alternatives to detention (ATD) provided by the Immigration and Customs Enforcement (ICE) for illegal immigrants not seen as a flight risk, such as electronic monitoring and intensive supervision.
  • An increase of $1.2 million for Critical Life and Safety Infrastructure Repair. This would allow existing detention facilities in San Pedro, El Paso, St. Croix, Aguadilla, El Centro, and St. Thomas to undergo system upgrades with the installation of fire alarms and smoke detectors as well as the repair of sprinkler systems.  
  • An increase of $6.4 million for the Criminal Alien Program. This increase would allow for a larger workforce of officers to enforce the DHS Priority Enforcement Program (PEP) in identifying, apprehending, and removing criminal aliens.
  • An increase of $13.2 million for costs associated with the transportation of unaccompanied children. This increase will allow DHS to transport unaccompanied minors into the custody of Department of Health and Human Services (HHS). Contingency funds are also included in the budget should the number of unaccompanied children surpass previous year levels.

With these proposed budgetary items, there is hope that reform is still a possibility within the immigration system. However, for immigrants whose lives in our country are held in the balance, proposed budgets may not be enough. Time is of the essence, and having legal support is one of the most effective ways to fight for legal immigration. The law offices of Brownstein & Nguyen invite you or anyone you know to contact us for their immigration needs or questions on current immigration topics, including immigration reform.