Should You Include An Arbitration Clause in Your Contracts?
Posted on | April 13, 2009 | No Comments
As the costs of litigating disputes continue to increase, litigants are increasingly settling their disputes through arbitration. Arbitration is a process in which a neutral third person (arbitrator) or panel, usually of three persons, considers the facts and arguments presented by the parties and then renders a decision. By utilizing arbitration, litigants can avoid trial, and the lengthy and expensive process of getting to trial. Arbitration usually results in a quicker decision than could be had by going to court. After the arbitrator renders a decision, that decision can be enforced by the courts. However, the courts cannot hear an appeal of an arbitration decision, except in the case fraud.
Arbitration is often preferable for the plaintiff who wants quick redress for the harm he or she has suffered, but defendants may prefer the longer and slower processes of trial and appeal in the courts. The rules of evidence in arbitration differ from those in trial. There are other differences between the two processes. Consequently, before a party agrees to submit to arbitration, thereby waiving the right to trial, careful consideration should be made as to which process is more likely to yield the better result.
How do parties choose arbitration over trial? They simply agree to arbitrate, usually in a written agreement. Written agreements to submit a dispute to arbitration can be signed before or after a dispute arises. So, for example, an employment agreement might include a provision requiring an employee to submit a wage dispute to arbitration. Nearly any agreement can contain an arbitration provision. Agreements can even be written to require mandatory arbitration only if requested by one but not the other party to the agreement.
Whether arbitration is right for you depends on a number of factors particular to your circumstances. However, all parties to an agreement in which significant disputes might arise should consider whether arbitration is a preferable alternative to resolving those potential disputes.
Tags: arbitration > attorney > Contracts > dispute > Indiana > lawsuit
Stay Out of Court At (Nearly) All Costs
Posted on | March 30, 2009 | No Comments

Stay out of court, because courts often make bad decisions that can have enormous impact on your business, your personal life and your finances. If you stay out of court, you increase your chances of controlling your own fate. If you let a judge decide, you have no control.
One of my law partners has a great expression about clients who get themselves entangled in lawsuits:
“When a client has to file a lawsuit or gets sued, he has already lost.”
What’s that mean?
It means lawsuits cost. They cost you or your business:
- Time spent in the courtroom, in depositions, reading documents, talking to your lawyer, in mediation, reading court documents, searching for evidence, etc.
- Money for attorneys’ fees, expert witness fees, photocopies, travel, etc.
- Opportunities to make money elsewhere doing other things, to grow your business, or to take personal time to be with family and friends.
- Your health. Lawsuits are stressful. The only thing more stressful than getting sued is having to file a lawsuit. Lawsuits are fun for lawyers. I love them, from a professional vantage point. I get to exhibit and sharpen my advocacy and strategy skills, but lawsuits are no fun for my clients.
- Goodwill or reputation. Getting sued can hurt the image people have of your business or you. The newspapers rarely report stories accurately. Allegations and even rumors are often reported as facts. People who really, truly know you and your ethos will be unaffected. Everyone else, including your customers, vendors and potential customers, will develop doubt in you to some degree.
A good lawyer-friend of mine just got a horrible ruling from a judge in a divorce case. The judge was wrong and should be appealed, but at what cost to the client? The judge robbed a father of all time with his children in a visitation ruling. The father in the case is not a bad guy at all, but the judge, for whatever reason, decided that the man should no longer see his own children.
Amazing isn’t it? How can one human being exercise that much power over another human being. This father is dying inside, because he no longer can see the children he loves so much. It’s very sad, and that judge should be ashamed of himself.
In a divorce case, there is not much you can do in advance to avoid a divorce lawsuit. Save your marriage, if you can. Or, don’t marry THAT woman in the first place. Ladies, don’t marry THAT man! That is the only lawsuit prevention available in a divorce context.
But what about your business affairs?
Do you take these preventative measures:
- Meet with your lawyer when you are unsure of your rights?
- Meet with your CPA, lawyer and insurance agent at least once every year?
- Have your lawyer draft or review all your contracts?
- Have your lawyer develop an asset protection plan?
- Use limited liability entities properly to create a “corporate shield?”
- Train your staff on a regular basis?
- Have processes and procedures developed into an operations manual?
- Properly use insurance to transfer liability risks away from you or your business?
- Etc.
If you answered “no” to any of these questions, then it’s time to go see your lawyer.
Tags: Asset Protection > attorney > business plan > corporation > court > damages > dispute > Indiana > Indianapolis > Insurance > lawsuit > liability > limited liability > llc > partnership > Small Business
REAL ESTATE QUESTION- Tenant Screening
Posted on | March 17, 2009 | 2 Comments
Question from one of Matt’s readers-
“How should I screen tenants?”
Matt’s Answer-
That is a great question and more important today than ever. As the foreclosure wave pushes more and more people out of their production homes and into the rental market, landlording is seeing a rebirth. Once again, it is not so bad to hold rental properties. Generally, the number of vacancies is dropping. And, more and more investors are moving away from the more creative real estate investing techniques and back to buying and holding rental properties.
Landlording is back! (I never thought it went away, actually.)
For both the seasoned landlord and the newest of real estate investors, it is important to screen tenants and have a command of the tenant screening process. There are a number of factors to consider, such as:
· What forms do I use?
· Do I require an application fee?
· How do I screen?
· What is my screening criteria? What makes a good tenant?
· How do I avoid discrimination claims? What are my duties and rights?
· How do my rental application and lease agreement work together?
· Was does it really mean to “pre-screen” tenants?
· Should I use a tenant screening service?
These are great questions, and the answers are relatively simple. It does, however, take some time to learn about your rights, responsibilities and opportunities, as they relate to tenant screening. I cannot address all these topics here, but let me take the last question- “Should I use a tenant screening service?”
The answer is: Yes, you better. Using tenant screening services is the most cost- and time-effective way to improve your chances of a successful landlord-tenant relationship. Good tenant screening services are a bargain. I have written for more than a decade on the subject, and believe in them more today than ever.
Do “bad” tenants slip through, even with a tenant screening company helping you? Yes, it happens. But, for the most part, professional tenant screening greatly improves your odds of finding the best tenant in your pool of tenant applicants. I believe in tenant screening services so much that I agreed to teach a class on landlording, called “Landlording 101,” for the local office of the National Tenant Network, last year. WE WILL PROBABLY OFFER THE CLASS AGAIN THIS SPRING! IF YOU ARE INTERESTED IN ATTENDING, EMAIL ME.
Also, once each month, I host the “Landlording Subgroup” of the CENTRAL INDIANA REAL ESTATE INVESTORS ASSOCIATION. The next meeting will be held in my law office building- 151 N. Delaware Street, downtown Indianapolis at 6:00 p.m. on March 23. If you’re a CIREIA member, register to attend the meeting at www.cireia.org.
At these classes, I answer the questions listed above. If you are a landlord and have not attended one of my classes, please do so soon. If you haven’t established a relationship with National Tenant Network or another such service, do so this week. That is one of the first and certainly most important steps in the tenant screening process.
Tags: Asset Protection > attorney > CIREIA > court > damages > dispute > Indiana > Indianapolis > landlord > lawsuit > Real Estate > real estate investor > tenant
Bloggers Beware! Copyright Laws Apply to You, Too.
Posted on | March 16, 2009 | No Comments
There is a battle developing between bloggers and traditional print newspapers. The battle is over content, and copyright law is at the heart of the dispute. And, I believe that the battle is likely to spread from newspapers to other on-line content providers.
Is this a serious matter for bloggers?
Yes. There have already been lawsuits filed against bloggers over content. So, it’s important for bloggers to understand what this new trend is, and how to guard against claims and lawsuits. I believe in prevention over the cure. That means that I am first a “teacher” of the law to my clients. If I can empower my clients with information and knowledge about the law and the legal consequences of their decisions, then they are more likely to make the right business and legal decisions in the future, even when I’m not around to help them. Knowledge leads to wisdom, right? So, the more knowledge you have, the wiser your decisions will be.
Plus, who wants to pay their lawyer to review each blog before its posted?
Why a battle now?
Increasingly, newspapers are seeing their markets evaporate as fewer and fewer people read the daily paper. Subscriptions nationwide have been falling for years, and the trend seems to be increasing in pace. Just in the past few months, we have witnessed dozens of newspapers stop printing second or weekend editions, or close their doors altogether. Many newspapers are consolidating sections. Here’s some of the carnage:
Rocky Mountain News- shut down
The Journal Register Company- bankruptcy
Philadelphia Enquirer- bankruptcy
Chicago Tribune- bankruptcy
Minneapolis Star Tribune- bankruptcy
San Francisco Chronicle– near death
Seattle Post-Intelligencer- online-only publication
Gannett, owner of USA Today- dividends slashed
The New York Times- dividends slashed
Cincinnati Post- dead
New York Sun- dead
So, as a result, two things seem to be happening in the newspaper world:
#1- Some newspapers are becoming non-profit, public interest entities. Examples of this are ProPublica (“investigative journalism in the public interest”) and MinnPost.com. ProPublica is funded by the Sandler Foundation and other trusts, while MinnPost.com gets funds from certain trusts, the wealthy and foundations.
#2- For-profit newspapers are trying to generate revenue on-line.
And that’s where you come in, my fellow bloggers.
The for-profit on-line papers cannot charge readers for content, if bloggers are copying, re-posting or re-blogging meaningful parts of the newspaper’s articles, especially original stories/works generated by a single paper. Readers won’t pay the papers for the same content you’re giving away for free.
EXAMPLE OF ONE LAWSUIT- Silicon Alley Insider, a business blog, got sued for quoting 25% of Peggy Noonan’s article in a February issue of the Wall Street Journal. And get this, Silicon Alley Insider even gave credit to and referenced Dow Jones, which publishes the WSJ.
Amazing, right? You’d think that the WSJ would appreciate the free marketing.
The reality is that newspapers are nervous, and nervous companies do stupid things. Take the music recording industry, for example. Those geniuses started suing individual music lovers for on-line music sharing. There was virtually no attempt to be creative in preserving their market share or generating other income streams. Rather, they elected to sue their client-base and sought huge punitive damages awards.
Today, we are starting to see the same knee-jerk, reactionary approach from print newspapers. I fully expect the trend to escalate. So should you.
This blog entry is getting too long. So, I’ll follow up on this soon. In a future blog, I’ll explore the arguments on both sides. This concerns federal copyright law and a concept known as “fair use.” I’ll explore copyright rules and the “fair use” defense, and I’ll try to help you understand how this new trend might impact your “scraping,” copy-paste practices , and re-blogging.
For now, please recognize that you can’t fight City Hall, and you can’t fight Dow Jones either. Most bloggers are too small to wage a legal battle with a large newspaper, even if the paper is slowing dying. So, start to develop the mindset that you’re going to have to exercise more caution than you did before reading this blog; review your policies and procedures for re-blogging content; and develop ways to minimize the risk of drawing fire from an angry source you quote or paraphrase. It may be that you’ll have to start getting permission in advance to re-blog meaningful amounts of someone else’s content. You might have to change several things you do now. For now, just start thinking about this topic.
Keep reading. More to come.
Tags: attorney > brand > branding > copyright > dispute > entrepreneur > fair use > Indiana > intellectual property > trade marks
WARNING- Asset Protection Is NOT Done Off-Shore
Posted on | March 16, 2009 | No Comments
My blog just got spammed by some company trying to get people to invest in a corporation based on some Caribbean island. The spam came across as an advertisement for “asset protection.” I deleted the comment and will not be posting it on this site! The spammer was trying to comment to my post Asset Protection- “It’s As Easy As 1 – 2 – 3!”
So, I need a Caribbean trust or corporation to protect my assets?
Hogwash!
Asset protection is the lawful use of entities, contracts, business practices and other legal structures that are recognized and permitted under existing law. Everything you need to protect your personal and business assets can be found right in your home state. You do not need to go off-shore to protect your assets. In fact, going off-shore raises another type of risk to your assets and can, therefore, be self-defeating.
Asset protection is NOT trying to hide assets in a Caribbean-based trust or corporation. Nor do you need a Delaware corporation or a Nevada corporation, unless you live or operate your business in those states. Nor do you lawfully protect assets by trying to hide them, by committing crimes or by engaging into fraudulent transfers.
The law provides ways to protect your assets! You’ve just got to understand what your risks are and what lawful means are available to address those risks. It’s really not that difficult. And there is no trickery involved. Trickery usually leads to other problems.
Do you know what a “legal witch doctor” is? It’s a term I coined years ago to describe people who talk about the law and who practice law without a license but with a particular financial motive impacting their advice. If a legal witch doctor tells you that off-shore trusts are the key to asset protection, you can bet that off-shore trusts are being sold to you.
Buyer beware! Avoid legal witch doctors. Go see your lawyer.
Tags: agreement > Asset Protection > attorney > business plan > corporation > court > damages > dispute > fraudulent transfer > Indiana > Indianapolis > Insurance > lawsuit > limited liability > llc > llc's > Small Business
Indiana Judge Bravely Ignores State Statute
Posted on | March 12, 2009 | 4 Comments
(photos of Judge David Dreyer with Indiana Supreme Court Chief Justice
& a Notre Dame priest- from Judge Dreyer’s website- http://www.judgedreyer.com.)
More than 10 years ago, Indiana passed a “tort reform” law that limited the amount of punitive damages that could be awarded in a single case. There was a wave of “tort reform” years ago, as there was public outrage against several large damages awards. Remember the old lady burnt by hot coffee at McDonalds?
Tort reform- the idea was that juries were running out of control and were awarding excessive damages intended to punish bad defendants. Punitive damages are intended to punish and deter, while compensatory damages are intended to make the plaintiff whole again. Many states passed laws limiting how much juries could award in punitive damages. We have had similar caps of medical malpractice claims for years and years now. Most states do.
So, for the past 10 years, all jury awards have been capped in Indiana, and the same holds true for most states. But wait a minute. . . ENTER JUDGE DAVID DREYER.
David Dreyer, a Marion County, Indiana judge, recently refused to reduce damages in a priest sex-abuse case, holding that Indiana’s punitive damage caps are unconstitutional. Judge Dreyer issued a 20-page ruling last Friday in John Doe v. Father Jonathan Lovill Stewart, No. 49D10-0402-CT-0443. The case involves allegations from a man (John Doe)claiming that he was molested by a Catholic priest when he was 10 years old, back in 1993. A jury awarded $5,000 in compensatory damages and $150,000 in punitive damages. Under the Indiana “tort reform” law, the punitive damages would have been reduced to $50,000. That law provides that punitive damages cannot exceed three times the compensatory award or $50,000, whichever is greater. However, the “tort reform” law capping punitive damages was not passed until 1995, two years after the boy was molested.
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Judge Dreyer held that the “tort reform” statute is not retroactive and cannot be applied to a 1993, event.
Judge Dreyer had another rationale for ignoring the $50,000 cap. He held that the 1995, law violates the Indiana Constitution with respect to separation of powers and right to trial by jury. The Judge concluded that the law, passed by the Indiana legislature, violates a person’s constitutional right to trial by jury:
“The Indiana Constitution protects each branch of government from interference with each other, and further guarantees Indiana citizens will have their civil cases decided by a jury,” he wrote. “The Statute’s two provisions … interpose the will of the General Assembly to supersede otherwise valid verdicts. Accordingly, it contradicts the Indiana Constitution and should not interfere with Doe’s punitive damage award.”
Judge Dreyer acknowledged that other states might not have similar constitutional limits, but that Indiana’s constitution clearly does.
It would have been easier for Judge Dreyer simply to uphold the punitive damages cap, and allowed the plaintiff to appeal the issue to the Court of Appeals. Judge Dreyer could have “passed the buck” and not suffered any criticism or review. But, he didn’t “pass the buck.” He did what he thought was right, and struck down a law that he felt was unconstitutional. Remember that Judge Dreyer is a trial court judge! Normally, appellate courts strike down laws. It is rare for a trial court judge to strike down a law on constitutional grounds.
Whether you agree or disagree with Judge Dreyer’s legal opinion and regardless of how you feel about large punitive damages awards, you have to applaud Judge Dreyer’s commitment to the law. It took much courage to strike down a 10-year old law in this fashion. If you assume that he truly believes what he wrote, you have to feel good about a judge trying to do the right thing, follow the law despite the personal consequences, and honoring his Oath of Attorneys. It’s refreshing to see a judge give so much thought to doing what is right, rather than what is easy.
Piercing the Corporate Veil/Shield
Posted on | February 17, 2009 | 1 Comment
The single greatest advantage to operating a business as a corporation is that the owners of the business protect their personal assets from the corporation’s creditors. Incorporation creates a fictional “shield” or “veil” between the corporation’s owners and its creditors. Generally, incorporation protects its owners from personal liability and limits an owner’s risks to the loss of his or her investment in the corporation.
Unfortunately, many business owners form a corporation but fail to take the necessary steps to maintain the integrity of the corporation. Even worse, owners will blur the distinction between their personal affairs and the corporation’s business. The consequences are that the corporate veil can be “pierced”, and an owner may be subjected to personal liability by the corporation’s creditors.
Maintaining the corporate veil is not difficult, but it does require some simple tasks completed and vigilance. Here is a partial list of tasks which should be completed in order to maintain the integrity of the corporate veil:
1. Never commingle personal and corporate finances. Never pay personal expenses with corporate funds.
2. Corporate officers should always execute documents in their corporate capacity. For example, sign documents as “John Doe, As President of ABC Corporation.”
3. Hold annual meetings of shareholders to elect directors.
4. Hold annual meetings of directors to select officers.
5. Create and maintain a corporate record book, which should include minutes of all corporate meetings.
6. Prepare and adopt good Articles of Incorporation and By-Laws.
7. File biennial reports with the Secretary of State.
8. Register all assumed business names with the Secretary of State and appropriate county recorders.
This list is certainly not exhaustive, but completing these tasks will greatly help preserve the protections afforded to business owners by incorporation.
Go see your lawyer for help help in reviewing your present corporate documents. Make any necessary changes to those documents. Prepare notices and minutes of meetings. Do all this and more ASAP.
Tags: Asset Protection > attorney > corporation > court > damages > dispute > Indiana > lawsuit > liability > limited liability > llc > partnership
How Do I Resolve A Dispute?
Posted on | February 16, 2009 | No Comments
The best way to resolve a dispute is to AVOID disputes in the first place! Seriously. Think about it.
Lawyers spend as much or more time resolving disputes than they do preventing them. The cynic in me thinks that lawyers prefer lawsuits, because lawsuits are time consuming and generate more fees for lawyers. When a client gets sued, the client has few options- settle on unfavorable terms, bankruptcy or fight the lawsuit. There are costs associated with each of these three options.
There is a better way. . . well drafted and implemented contracts and legal forms.
Sadly, many clients do not want to pay a lawyer for the time it actually takes to create a good contract. Yet, a good contract is like insurance, in that sense that you can pass on liabilities and risks to another person through contracts. Actually, insurance is a contract between you and the insurer. A good B2B or B2C contract transfers risks from your business to another business or your customer, much like insurance.
Best of all, contracts set expectations. Everyone signing a good contract knows what the result of a lawsuit will likely be, resulting in fewer reasons to file lawsuits. Think about this- Why would you defend a lawsuit, if you knew you were going to lose in court? If your contract tells you that you’re going to lose, then settle and write a better contract next time.
The difficult lawsuits are those where (1) there is a bad contract in place or (2) the facts are uncertain. Those are the cases that should go to court.
However, before you run to the courthouse, consider four other ways to resolve a dispute:
1. Try it again. Reformulate the relationship by drafting a new contract to replace the one you signed. Presumably, you and your “opponent” wanted to do business together when you signed the first contract. If the contract form you signed was poorly written, consider efforts to save the relationship and sign the contract you wanted from the beginning. If all trust is lost, then this option won’t work.
2. Try talking. Try settlement negotiations with or without your lawyers present. It is amazing how easy it is to resolve disputes over a cup or coffee or a beer. Try it.
3. Mediation. This is a process available before or after a lawsuit is filed. A mediator is hired to assist you in negotiating a settlement. The process depends on the willingness of the parties to settle. Note that the rules governing mediation differ depending on whether mediation is done before or after a lawsuit is filed.
4. Arbitration. Essentially, you hire a private judge. The advantage of arbitration is that it is faster and cheaper than going to court.
In a future blog, I’ll talk about these four options in more detail. There is an article on arbitration clauses in contracts on my law firm’s website- www.indiana-attorneys.com.
Tags: Add new tag > attorney > corporation > dispute > Indiana > Indianapolis > lawsuit > liability > llc's > partnership
Buy-Sell Agreements- If you have a business partner, you should have a partnership agreement.
Posted on | February 13, 2009 | Comments Off
A buy-sell agreement (“BSA”) is a great document. BSA’s can be used for corporations, limited liability companies and partnerships. Often, a BSA is embedded in the Operating Agreement of an LLC or the Partnership Agreement of a general, limited or limited liability partnership. The form of a BSA is far less important than are its contents. So, don’t get confused by the name of the agreement. Rather, consider the purpose and content of a BSA. I’ll write about the substance of BSA’s in a future blog. Here, I want you to consider WHY you should consider a BSA for your business partnership.
BSA’s serve several important purposes, such as these:
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A BSA can prevent disputes over control of a company.
HOW? A well-written BSA establishes when and how one owner may or must buy the ownership of another owner. If disputing owners know the outcome of their power struggle, they are less like to fight. The end result is already decided. Generally, people fight, when they believe they can make gains through the process. BSA’s reduce the opportunities to gain through struggle, and thus reduce disputes/lawsuits.
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A BSA creates a market for your ownership interests.
HOW? There is no market to sell partial ownership interests in most small companies. There is no stock exchange for such “closely-held” companies. A BSA can create a market by requiring one owner to buy the other owner’s shares under certain circumstances, which we call “triggering events.”
“Triggering events” are bad things that can happen to any business owner. The key triggering events are:
- The death of an owner.
- Marital divorce.
- The disability of an owner.
- Unwillingness of an owner to continue the business. I call this “disinterest.”
- Retirement by an owner.
- Dissolution of the company.
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A BSA can further your Asset Protection Plan.
HOW? Under certain circumstances, a BSA can make it extremely difficult for the creditors of an company to get at the ownership interests of an owner.
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A BSA enables you to keep your company longer.
HOW? If your partner “triggers” your buy-sell agreement, you can agree in the BSA to a payment plan. So, in other words, if you have to pay $80,000 to buy your partner’s ownership interests, the BSA can provide for terms. Typically, you agree to a down-payment, a modest interest rate on the balance and payments over time. That enables the “buying” owner to keep the business going, rather than being forced to sell the company or key company assets. Having to buy-out your partner is an extraordinary expense. A BSA can make those payments manageable.
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Much, much more.
There are other advantages to BSA’s. There are also disadvantages. Whether a BSA is right for you depends on a number of factors. Your CPA and attorney can help you determine if and how a BSA should be used.
Tags: agreement > Asset Protection > attorney > buy-sell > corporation > dispute > Indiana > Indianapolis > lawsuit > liability > llc > partnership
Are Covenants Not to Compete Really Enforceable?
Posted on | February 2, 2009 | 1 Comment
READER’S QUESTION: Are Covenants Not to Compete Really Enforceable?
MATT’S ANSWER: Yes. In most states. In Indiana for sure. In most cases. If “reasonable.”
There is a huge misperception that covenants not to compete (“restrictive covenants”) are unenforceable. I hear that all the time.
Where do people get such bad legal information so often?
Restrictive covenants are enforceable in Indiana and many other states, if “reasonable.” The courts have defined “reasonable” to mean limited: (1) in the time or duration of the restrictive period; (2) in the geographic range or area and (3) to activities likely to protect a legitimate business asset or interest. So, for example, if a truck parts salesman with inside “secret” knowledge of customer needs, pricing strategies, new marketing strategies, costing, etc. quits his job to work for a competitor, a restrictive covenant of 18 months in the same sales territories would probably be enforceable.
Restrictive covenants are even more important and easier to get approved in court, when a business owner sells to or merges with another business. In those situations, the buyer wants to know that he is the only person or company that will have access to the business assets (information, data, documents, etc.) that is being purchased. The courts are much more likely to enforce a restrictive covenant in these situations.
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CHECK OUT OTHER ARTICLES I’VE WRITTEN ON IMPORTANT BUSINESS, REAL ESTATE AND LAW-RELATED MATTERS: http://indiana-attorneys.com/articles_news/index.htm
Tags: attorney > corporation > court > covenant not to compete > dispute > employee > Indiana > Indianapolis > lawsuit > liability > partnership > restrictive covenant > trade secret