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Ryan Alexander’s Answers

94 total


  • What is the point of the Anti-Spam CAN Act laws if no one seems to be punished for spamming?

    I get spammed a lot by IT recruiters, and I'm not the only one. Many of us report them as spamming, but after them still at it for years it's seeming that the spam laws don't actually work. I have reported spam to the FTC but still businesses kee...

    Ryan’s Answer

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    You might see federal enforcement in very egregious instances, but generally, no, spammers aren't punished unless other violations of law are also ventured by the spammers.

    You might try the California AG's office as there are privacy laws in California that are stiffer than the federal laws, particularly if you have no relationship with the spammer, and these laws also provide you civil relief, although the economics of bringing suit don't bear a positive result unless you're considering a class action suit. This begs the consideration to seek the efforts of a class-action attorney in California to pursue your claims if you feel strongly.

    As far as the proper technical reporting mechanisms, that be something of a technical nature to which I have insufficient knowledge thereof to support a sound recommendation for you. This might require a review of the best practices in the IT realm to which you're party to more than myself.

    Good luck.

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  • If you have an LLC, can you own less than 50% equity, but have majority control?

    How can you do this?

    Ryan’s Answer

    From an interest-holder to total interests-outstanding perspective, with all interests being the same interests, no there is no majority control with less than 50% ownership because you don't possess a majority of the interests. My assumption is that you're seeking confirmation of this fact, and a means to circumvent this process.

    As to the instances to which my colleagues have alluded, you can acquire power/control of the company with a variety of tools, e.g. proxy agreements, different classes of interests w/ preferential rights, the delegation of certain powers from one member to another or manager, etc. Know that there are limits to these delegations and agreements as provided by law which aren't readily apparent to everyone, e.g. employee-interest-holder rights, that can undermine your newly-found assumptions and potentially create a perilous circumstance for you to exert control when in fact you don't have it.

    With regards to the fashioning of these structures, I've used these not infrequently, but I caution your efforts to clearly understand the limitations of these instruments, and to limit your 'control' to a limited number of specific instances vs. a blanket effort to control the company. Moreover, acceptance by all members of such assumptions is also imperative to work properly, so you might try a limited pooling arrangement to acquire 50% vs. pushing this down upon every member.

    Good luck.

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  • Can I sign an NDA if I am working at a bank. A company is for sale that I am interested in buying. PLEASE ADVISE.

    I work at a bank but would like to buy a company. Can i sign an nda to look at the company financials?

    Ryan’s Answer

    Assuming you're not an officer or director of the bank , you're probably okay to sign it on behalf of yourself, personally, but you need to check a couple of things first to ensure you appropriately understand your risks.

    If this is a project that you're doing on your own time and un-related to your function at the bank, California law is in your favor to allow you to do such things on your own time, and so long as you're not taking-away an opportunity of your employer (if this is something that you do on behalf of the bank), you'll have protections under California law. If you're an officer or director, however, these rules will be less protective to you as you're under fiduciary duty to serve the bank and the underlying business opportunity may be something that violates these duties; more facts are necessary to determine whether this is the case, but the NDA won't technically violate that obligation, only the business transaction.

    Even if you're not an officer or director of the bank, you might take a look at your employee handbook to understand your can-dos and can't-dos as an employee to determine whether your employer will take issue with your dealings, but I would caution against asking for permission, unless you have a good understanding that your supervisor will approve. Again, the NDA is likely not the violation, but the business opportunity might be.

    Use caution, and ensure that the existence of the NDA and the parties to the NDA are also subject to the obligations of confidentiality to minimize your current employer from discovering your intentions.

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  • How do you pay someone in equity when you are an LLC?

    Do you do it just like if you were to hire an independent contractor? Or do you have to adjust the operating agreement?

    Ryan’s Answer

    Typically, you have to amend your operating agreement to reflect the reserve of equity for such purposes. You also need consents from the other members to allow such recipients to become members of the LLC in addition to the plan that comports with federal and state regulations pertaining to the award of equity to contractors/employees/founders, etc. unless your grant agreement addresses these concerns. There are about 100 different ways to do this, and it mainly depends upon your current structure, and the flexibility you'll have with your existing members to get this done.

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  • Does my company's stock plan need to be signed to become legally binding or is it enough if the company's board approved it?

    My company has a written stock plan but he document was never signed by the Company Secretary (or any Officer). Is it still valid even though it was not signed? That Secretary left the company some time ago so does the new Secretary sign it, or ...

    Ryan’s Answer

    • Selected as best answer

    Assuming your company is a privately-held corporation, if the stock plan has a designated administrator, and the resolution approves the stock plan, the award of each grant of equity to the designated individuals and the empowerment of the administrator to perfect so, I don't see anything holding you back.

    Before I tell you everything is okay, you might review what the secretary needed to sign, and why. This might be able to clarify whether this signature is necessary and whether you can now sign it, ignore the requirement or re-do the efforts as a precaution.

    This isn't brain surgery by any means, but if your grants weren't conveyed correctly and you proceed anyways, you'll subject the recipients to unnecessary tax consequences if there's any appreciation in the underlying equity's value.

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  • I have been offered phantom stock in a closely held small tech corporation. Should I argue for stock options instead?

    This is the first time I've been offered phantom stock for a key officer role and I have reservations.

    Ryan’s Answer

    Your reservations are well advised.

    You should consider making your case for options for the following reasons: (i) phantom rights will never afford you voting rights and you don't get the employee stockholder protections under the California Corporations Code as an equity holder (your interest can be diluted w/o consent); and (ii) options can qualify for lower tax treatment (as ISOs) and allow your to avoid income tax if the grant and your dispositions qualify (you're taxed as a capital gain vs. income tax rate). Phantom stock rights are taxed as supplemental income (bonus income) and do not have the right to vote on key changes to the company, and the company can keep granting phantom stock rights until your interests are meaningless. Be careful.

    The issue is whether the company has enough underlying authorized shares to grant you options. Many times phantom stock rights are granted when a company depletes its option pool. Sometimes you can force a re-organization of the company to re-create an option pool, some times you can't.

    Good luck.

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  • I am a 50/50 Share Holder in an S-Corp . I want to leave the company and sign the shares over to my partner.

    The company was formed 6 months ago. We have not made any profit. Do I need to file any special forms with the Secretary for State? The company was formed in California.

    Ryan’s Answer

    There is no requirement to file any document with the California Secretary of State to reflect your sale/transfer of your shares in the corporation. However, you want to get something in writing that reflects your tender of shares to the new owner, and what consideration you're accepting for your tender of such shares. You never know why you need it until you need it.

    As also stated, if you hold a position as officer or director of the company, an updated statement of information should be filed to reflect your resignation of such positions, if you're resigning from such positions. This filing is free if done prior to the annual requirement to provide the filing.

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  • I was sued by a corporation for breach of contract, and I lost. This was years ago. Now the corporation is defunct, it went out

    of business and its status at the Secretary of State was "suspended". So I reserved the name and paid to renew it, and now own the corporation - at least I have the legal right to the name since they dumped it. So now, I am going to settle the d...

    Ryan’s Answer

    • Selected as best answer

    I appreciate the craftiness you've exuded, but like others have so eloquently stated, this doesn't get you out of the woods. If the status of the account is a true reflection of the company going out of business, this would suggest that you're not likely going to have a problem, but there is a remote chance that the company (provided it's still a company or has transferred the judgment to another company by way of corporate event, e.g. merger) can still come after you until the judgment is no longer enforceable.

    Your corporation is not the same as the one that obtained the judgment against you. However, based on the account status, it's possible that the company that sued you is no longer a going concern and incapable of coming after you, again, possible, not certain.

    Another point of fact is that if this "suspended" status is by their inadvertent mistake, you may have just created a reason for the company to renew its efforts to pursue you, again a possibility.

    Only time will tell for certain. I appreciate the out-of-the-box thinking.

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  • What recourse do I have against oil co who filed for a restraining order and and an injunction because we filed com on permit ap

    oil co filed for marc. well application to wv dep. access road is on my property as well as 40 feet of well pad. was never notified found survey stakes in field . was given 30 days to file any comments or concerns ...filed comments which made g...

    Ryan’s Answer

    It sounds like you're going to court. How important it is for you to win the hearing is the factor you need to consider in your decision to bring an attorney with you to court. If not, it sounds like you have a fair shot at winning on your own. You might consider bringing the person that authorizes your mowing of the field with you as a witness. If you win, ask for attorneys' fees b/c that's ridiculous lawyering.

    Based on the the fact that you have a right to be on the premises b/c you mow it is probably enough evidence to deny the proposed order against you, especially if there is no proof that you removed the survey stakes. Moreover, it sounds like retaliation b/c you filed the comments, and a judge may be inclined to also award you attorneys' fees.

    Call your neighbor lawyer and ask them about showing up on your behalf. In the worst case scenario, show up, and be polite, respectful, and loud and clear with your story, and you'll be in decent shape assuming there are no other twists to the saga.

    I'm not sure who's developing those wells, but I'm thinking their choice of lawyer will soon change b/c oil companies don't like initiating instances creating negative attention as trouble finds them pretty well without the operator's instigation. Good luck.

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  • What is the best state to create a LLC for asset protection and tax planning?

    Hi, I'd like to create a LLC to invest in stocks / bonds / ETF / etc.. The LLC will be owned by myself, my spouse, and my kids. 1) What is the best state to create a LLC for asset protection and tax planning? 2) If...

    Ryan’s Answer

    If you're managing the portfolio while you're in California, you're subject to the 8.84% annual franchise tax (minimum $800 annually). It might be considered passive income to the IRS, but not the California FTB if the managers, officers or employees are California residents. If however, you initiate this plan, and you hire an investment manager in another state to manage the fund for you and you have no active participation in the active management of the investments (or the investment holding company), you'll have a good position to assert with the FTB.

    Texas, Wyoming and Nevada are really good for passive income investment holdings as they do not have state income taxes. I also participated in an Oklahoma entity recently, and it was exceptionally smooth and inexpensive there too. Don't choose any blue states.

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