Bovarnick 

                                                                                                                  AND ASSOCIATES LLC

     ATTORNEYS  AT LAW

 

    JUST IN CASE

     Email newsletter from Bovarnick & Associates                                      March 2008

Bovarnick Speaks to Northeast Berks County Chamber of Commerce

Rob was the featured speaker on Friday, March 24th at the Northeast Berks County Chamber of Commerce; the topic of his discussion was the "20 Lethal Legal Small Business Land Mines to avoid."  Rob will be making at least two other public appearances next month:

  • On April 2, Rob will be speaking to the Women's Business Forum as part of their Build Your Business series.

 

  • In April Rob will appear on the Comcast CN8  "Money Matters" show.  The exact date of when the show will appear hasn't been determined.  A VCR alert will be sent out in early April.

 

  • On April 24, Rob will be speaking at a seminar entitled "Recognizing the Blind Spots in the World of LLPs, LLLPs, LLCs and Partnerships in Pennsylvania."  The topic of his lecture will be about Series LLCs, Fiduciary Duties, Derivative Standing, Piercing the Veil and Asset Protection. If you are interested in attending, go to www.lorman.com.

 

  • Reedlogic has asked Rob to do a one hour video on business bankruptcy issues.  More details on this will follow.

 

 

 

 

 

King of Qualified Tax Plans

 

 

Robert Mand, Esq., Partner and founder of Mand Marblestone Group, LLC, has practiced in the employee benefits field since 1972. Through Bob's extensive retirement plan practice, and using powerful, IRS-approved plan designs, he has seen many clients retire with substantial assets in their plan, allowing them to enjoy an enhanced and secure retirement.

 

 

Bob has written for many publications, including Taxation for Accountants and Taxation for Lawyers. He has received an AVŠ rating from Martindale Hubbell, the highest rating awarded for legal ability and professional ethics. Bob received a Bachelor of Science degree in Economics from The Wharton School at the University of Pennsylvania, a law degree from the University of Pennsylvania Law School, and a Master of Laws Degree in Taxation from the New York University School of Law. Bob is also an avid amateur photographer.

 

Why did you go into tax law, and, more specifically, why did you select the area of  tax-qualified retirement plans as a sub-specialty?

 

"I knew right at the start of law school that I did not want litigation or any other adversarial practice to be the major focus of my career. I was an accounting major in college, and I gravitated directly to the tax courses. As far as specializing in retirement plans, I felt that the boundaries of this specialty were more manageable than the enormity of general tax law. I might have been right about that when I began my career, but with the advent of 401(k) plans, and the increasing importance of retirement plans, there have been many new laws and regulations enacted. So while the law has expanded significantly and has become more complex, it's still finite."

 

Why did you start your company?

 

"I believed that the opportunities to business owners in retirement plan design were (and still are) extraordinary, and that this critical legal and consulting aspect of retirement plans was not being met by the financial institutions that were focused on the plan's investments. I view retirement plan investments as separate and distinct from what we do, requiring a different skill set and expertise. That requires our clients to have a trusted investment financial advisor who can direct them on the investment side of the retirement plan experience."

 

What is the value proposition of your services?

 

"At the outset of any engagement, we work directly with the owner(s) of the company, and help them define their contribution objectives. We then use their quantified objectives to design a customized retirement plan that meets those objectives as closely as possible, also taking into account the tax ramifications, the possible volatility in their profitability from year to year, and their ability to make continued contributions."

 

What size companies would benefit?

 

"While the plan design techniques and legal requirements apply to plans of all sizes, most of our clients have fewer than 100 employees and are closely held companies, such as family-owned businesses and professional practices and other service companies."

 

What amount of annual income would a business owner need to take maximum advantage of your services?

 

"We provide the greatest value to business owners who earn more than $150,000 per year and want to shelter at least $30,000 per year for themselves and favored employees (including family members."

 

Why aren't your services more widely offered?

 

"What we do is difficult. It requires three critical parts: a deep knowledge of the law, an IRS-approved document to allow us to do what the law permits and a consultative interface with our clients to clearly define their contribution objectives. Since most of the retirement plan industry focuses on plan investments, which is how they're compensated, many providers choose to take the easy way out, and give their clients a basic plan design. The unfortunate result is that business owners do not get the full picture, which I believe they want and need to make an informed decision."

 

What is the biggest misconception about your industry?

 

"Most business owners mistakenly believe that all 401(k) plans are basically the same; that they're a commodity. In fact, there are extraordinary plan design opportunities that will allow a company to select a contribution structure that is in the greatest alignment with their business objectives."

 

 

Enforceability of Limited Liability Agreements

  

Evening Bulletin

"ASK THE ATTORNEY"

by

Robert M. Bovarnick

 

 

These agreements, called either limited liability agreements or "exculpatory clauses" are valid where three conditions are met.  First, the clause must not be against public policy.  Second, the contract must be between parties relating entirely to their own private affairs.  Third, each party must be in a position to freely bargain for the product or service being purchased.

 

Once an exculpatory clause is determined to be valid, it will, nevertheless, still be unenforceable unless the language of the parties is clear that a person is being relieved of liability for their own acts of negligence.  In interpreting such clauses, the courts have listed as guiding standards that : (1) the contract language must be construed strictly, since exculpatory language is not favored by the law; (2) the contract must state the intention of the parties with the greatest of specificity; (3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and (4) the burden of establishing the immunity is upon the party trying to limit the liability. 

 

As a general rule, courts will not enforce exculpatory clauses that are contrary to the public interest, based upon the principle that a party providing essential public services should be required to fulfill its obligation to the public.  For example, some courts commonly invalidate the releases that public schools require students or parents to sign before students may participate in school athletic programs. 

 

It is generally recognized that parties cannot waive liability for conduct that rises to the level of gross negligence.  Gross negligence is usually defined as "negligence substantially and appreciably greater than ordinary negligence."

 

If you are going to prepare an exculpatory agreement, it is crucial that the language not be ambiguous or misleading.  If the language is ambiguous or misleading, a court may find the exculpatory agreement to be unenforceable. 

 

Someone's unawareness of an exculpatory clause does not necessarily void the clause.  In a case out of Illinois, the Illinois court held that lack of knowledge of an exculpatory clause is relevant only if the location of the clause in the contract, the size of its print, or the fact that there is no reference to the clause on the front page of the contract raises suspicions.  The Court noted that a clearly printed "notice to the buyer" stressing the importance of reading the entire contract, appeared directly above the plaintiff's signature on her health club membership contract.

 

In conclusion, if you are going to have an exculpatory clause, be very careful as to how it is prepared.  Otherwise, you may find yourself liable.

 

 

 

I enjoy being able to share with everyone the Firm's continuous growth and development.  Whenever you get the chance, pick up the phone or send me an email and let me know how you are as well.

 

 

Sincerely,

Rob