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Brian M Gottesman

Brian Gottesman’s Answers

127 total


  • Is it illegal to DDos a website?

    DDos: Distributed Denial of Service which can pretty much shutdown a website

    Brian’s Answer

    Mr. Goodman is correct about the civil damages that may be incurred by the initiator of a DDOS attack. The perpetrator may be subject to breach of contract claims from his own ISP, as well as tort claims for direct and consequential damages resulting from the shutdown of the site.

    In addition, a DDOS attack may subject the perpetrator to severe federal criminal penalties under the Computer Fraud and Abuse Act, as well as related state statutes.

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  • Is a Delaware LLC initial capital contribution considered an investment?

    I want to form a a 4 member Delaware LLC each member will sign a contribution agreement and offer different things to the company. -One will offer $10k and management work (Foreign Citizen) - we will get 15% of the company -One $2k and s...

    Brian’s Answer

    The rights of the members are going to be determined by the terms of the LLC's operating agreement. In a situation like this I would not recommend you use an off-the-shelf LLC Agreement from an online source. You really need sophisticated counsel to ensure everyone's rights are protected. For some of the key issues you need to consider, see http://familybusinesscast.com/managing-family-business-conflict-with-an-operating-agreeement/ (deals particularly with family businesses but the principals apply equally to any small business organization).

    The company will have to keep track of the capital contribution of each of the Members. There isn't any initial reporting requirement to the IRS but these figures may be important for the company's annual tax return.

    Depending on how the "investors" came to you, you may be subject to any number of federal and state securities laws that would require certain disclosures to be made to the investors (but probably not any sort of public filing with the SEC). If this is a case where four guys got together and mutually decided to form a company, those would probably not apply.

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  • I had an LLC. I wrote a check that I ended up not having the funds to cover. I have since closed the business.

    Am I personally responsible for this check?

    Brian’s Answer

    As a matter of LLC law, you would not be liable for a debt of the business. However, the creditor could attempt to "pierce the corporate veil" and go after your personal assets. See, e.g., http://www.businesslawbasics.com/jurisdictional-differences-veil-piercing

    Moreover, willfully writing a check without funds to cover the amount may be a crime in every state (and possibly federal crime depending on where the payment was going).

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  • I hired a dj to do my daughter's birthday party he asked me to photograph his wedding and subtract my deposit fee from his pay.

    Switching services

    Brian’s Answer

    Bartering services is perfectly legal. Get the contract in writing. You do not want to have to try to show the existence of an oral contract later if things go sour.

    However, if you are doing this to avoid taxable income be aware the IRS is wise to you. As a matter of federal tax law you must report certain kinds of barter income on your tax returns. See http://www.irs.gov/taxtopics/tc420.html for further guidance and consult an accountant.

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  • Can I sue when I don't have nothing in writing but a verbal agreement.

    Gave a lady 300 dollars to do my wedding photos and weeks later still no photos.

    Brian’s Answer

    An oral contract is generally enforceable. Most states, including Kentucky, have a "statute of frauds" that requires certain types of contracts to be in writing in order to be enforced, but this does not appear to fall in one of those categories.

    Note, however, that the burden will be on you to prove that the contract existed. Proof that you paid her $300 will be strong support of some kind of contract. However, “[t]he general rule is that where the alleged express contract is oral the evidence to support it must be clear and convincing.” Smith v. Hous. Auth. of Middlesborough, No. 2002-CA-000738-MR, 2003 WL 22416761, at *3 (Ky. Ct. App. Oct. 24, 2003) aff'd sub nom. Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354 (Ky. 2005). This is a somewhat higher standard than simple "preponderance of the evidence" - i.e., that it's more likely than not that the contract existed.

    Best of luck to you.

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  • What recourse is available against and interstate moving company that fails to delivery on time and in good condition?

    Moving company loaded household goods in Madison, WI for a move to Scottsdale, AZ. After loading, cost estimate was increased more than 60%, then goods were placed in a warehouse in Chicago for over a month, greatly exceeding the 5-7 day deliver...

    Brian’s Answer

    Depending on the wording of your contract with the movers, you may have a breach of contract claim. You can also sue in tort for damages associated with damaged property and possibly associated economic losses (cost of leasing/purchasing substitute necessities in the interim, etc.).

    Because the company is delivering in Arizona, you would almost certainly be able to sue them in your local courts (which would have jurisdiction under Arizona's long-arm statute). But note that many contracts of this type have arbitration or forum-selection clauses that may affect where and how suit can be filed.

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  • What can i do when someone fails to pay a credit card i cosigned for?

    I cosigned for a credit card with a 2000 dollar limit about 3 years ago. I have just recently found out that the other person increased the limit and maxed out the card at $22,000, has quit paying and has now filed bankruptcy. The debt collectors ...

    Brian’s Answer

    Unfortunately, you are in a difficult spot. Because you co-signed you are very likely "jointly and severally liable" - meaning the credit card company can go after you for the full amount of the debt if the other party doesn't pay. Under normal circumstances you could sue your co-card holder for contribution equal to the amount they spent on the card. In this situation, you are going to be barred from suing them because of the bankruptcy action. As far as I can see, your only recourse against your co-holder is filing a claim in their bankruptcy action. This does not help you in the short term against the credit card company, and failure to pay them may have dire consequences for your credit.

    My advice is to consult with an attorney who handles bankruptcy matters and creditor work-outs. The credit card company may be willing to settle with you for something less than the full $22K, and you may be able to recover some contribution in the bankruptcy action.

    Best of luck.

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  • When do you need to find a registered agent in Delaware? Before or after filing the articles of organization with the State?

    Do you need to have a registered agent before registering with the State?

    Brian’s Answer

    Yes. Any business entity being organized in Delaware needs a registered agent with a physical address in the State of Delaware. The registered agent will need to be listed on the Certificate of Formation (or comparable document, depending on the type of entity). Foreign (non-Delaware) entities that are going to be doing business in Delaware also need to file a qualification to do business and select an in-state registered agent.

    The registered agent can be any company or person as long as they have a physical mailing address (not a PO Box) in the state of Delaware. If you don't have a physical presence in-state, and don't know anyone willing to serve in this capacity for you, there are any number of companies that provide this service for a fairly nominal annual fee. The Secretary of State keeps a database of some of these at http://corp.delaware.gov/agents/agts.shtml, but the list is not exhaustive. Many law firms (including mine) either serve as registered agent for their clients or maintain a separate affiliate entity for this purpose.

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  • My lawyer went out of business and I paid him 2000 for doing nothing in my divorce case

    Over a year ago I hired a divorce attorney and I paid him 500 to start then 300 a month for 5-6 months after that . He never filed any papers or did anything for me . He's now out of business and I'm still married . Can I get my money back ?

    Brian’s Answer

    Your damages may be limited to the amount you paid him, unless the delay in obtaining a divorce somehow caused you financial loss in a concrete way.

    Most state Bar Associations have fee dispute resolution programs. Missouri's can be found at http://www.mobar.org/forlawyers/services/feedispute.htm

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  • Is reckless driving a crime in Delaware?

    I'm not from Delaware. In 2001, I drove to Ocean City MD, and had to pass Dover, Rehoboth Beach, and a few other cities along Route 1. I was stopped by a cop. He gave me a ticket, told me to pay it in 14 days. He said that it was for Reckless D...

    Brian’s Answer

    It is technically considered a misdemeanor traffic offense. See

    http://delcode.delaware.gov/title21/c041/sc09/index.shtml
    http://www.trafficviolationlawfirms.com/resources/traffic-tickets/moving-violations/delaware-reckless-driving-laws for details.

    It sounds like you were not properly advised of your rights at the time of the ticket. You may wish to consult with a lawyer specializing in these matters to see if anything can be done to amend or expunge the record.

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