Sexual Harassment

SEXUAL HARASSMENT

Sexual harassment claims against your company can result in negative publicity, enormous fines, time-consuming and expensive litigation, lowered employee morale, and reduced productivity in the workplace. If your business is facing sexual harassment allegations by a current or former employee, you need immediate legal support from a knowledgeable and experienced employment law lawyer, such as those of Bellatrix PC.

Whether you are already facing a legal claim, or are simply concerned about compliance with FEHA and Title VII requirements, our attorneys are prepared to assist you.  We can represent and defend your business in civil litigation proceedings, or review and revise your current policies and procedures with our business risk review.  To arrange a private consultation, call our business attorneys right away at (800) 889-8376.  We work with partnerships, corporations, and LLCs.young-woman-with-briefcase

Examples of What Constitutes Sexual Harassment

Sexual harassment has a much broader definition that most people initially realize.  In fact, the passage of SB 292 in 2013 amended and expanded California’s former definition by providing that workplace conduct need not be motivated by sexual desire in order to be considered sexual harassment.

In order to avoid  facing harassment allegations, employers must familiarize themselves with the type of conduct which is prohibited by law.  Employers must also:

  • Include sexual harassment provisions in their employment handbooks, e.g. explanations of prohibited behavior.  Sexual harassment policies are mandatory.  
  • Put up anti-harassment posters supplied by the Department of Fair Employment and Housing.
  • Consider promoting a sexual harassment prevention program at the workplace, which may help to limit liability in certain situations.

Note that if an employer has 50 or more employees, he or she is further required to “provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees who are employed as of July 1, 2005, and to all new supervisory employees within six months of assuming a supervisory position.”

Some common examples of sexual harassment include, but are not limited to, the following:

  • Any unwanted physical contact.  This includes, but is not limited to, pushing, touching, slapping, or pinching employees.  It also includes blocking doorways or otherwise preventing employees from moving freely without having to make physical contact.
  • Visual acts, such as making inappropriate hand gestures, showing a co-worker sexual materials, or staring at an employee’s body.
  • Verbal expressions, including jokes, threats, slurs, unwanted advances, and other crude or sexual language.
  • Offering an employee a raise, promotion, etc. in exchange for sexual favors.  Conversely, threatening to demote or terminate an employee who withholds sexual favors is also sexual harassment.

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Are California Employers Liable for Sexual Harassment in the Workplace?

While sexual harassment may be the act of an individual employee, employers can nonetheless assume liability.  This can apply even in cases where the employer was unaware that harassment was occurring or did occur.  However, employers may not be liable in cases where all of the following statements apply:

  • The alleged harasser was not a management-level employee.
    • This applies regardless of the plaintiff’s position at the company.
  • The employer was unaware that any harassment was occurring or did occur.
    • The employer must “take immediate and appropriate corrective action to stop the harassment” as soon as he or she becomes aware that harassment is a problem.
    • If an employer is aware that an unsafe work environment exists, yet fails to take reasonable measures to correct the problem as provided by Government Code § 12940(k), that employer could potentially be targeted by a lawsuit alleging negligent hiring or negligent retention.
  • The company had an active program to prevent sexual harassment from occurring.

Employers must be made aware that harassment claims need not involve financial damages to the plaintiff in order to be successful.  As stated by the California Department of Fair Employment and Housing, “A victim may be entitled to monetary damages even though no employment opportunity has been denied and there is no actual loss of pay or benefits.”

Harassment is expressly prohibited by both state and federal law: Title VII of the Civil Right Act of 1964 and the California Fair Employment and Housing Act (FEHA), respectively.  Title VII generally applies to employers with at least 15 employees, whereas FEHA applies to employers with at least five employees.  Therefore, a company which escapes Title VII provisions may still be subject to FEHA, which furthermore applies to independent contractors.  Employers are subject to maximum fines of $150,000 in cases where the Fair Employment and Housing Commission determines that harassment occurred.

What About Liability for Non-Employees?

Sexual harassment laws also extend to non-employees.  For example, an employer could potentially be held liable if one of his or her clients or customers harasses an employee.  In order for the employer to escape liability in this type of situation, two conditions would have to be in place:

  • The employer would have to immediately intervene as soon as he or she learned that harassment was occurring or had occurred.
  • The harasser must not have been in a position of authority over the victim.

Note that employers can also be held liable for harassment to job applicants and interviewees who are not actually employees of the company.

Finally, it is worth addressing the common misconception that only men are guilty of sexual harassment, and that only women are victimized.  From a legal standpoint, gender has no bearing on harassment claims – only the conduct which occurred.  Persons of either gender can be victims or harassers.

If a former employee has filed a sexual harassment claim against your business, you need an aggressive and experienced legal team to defend your company in court.  To set up a confidential legal consultation, call the business law attorneys of Bellatrix PC at (800) 889-8376.

Things to Consider When Getting A Business Credit Card

Old man puzzling over chess boardNo matter what sized business you are, cash flow is a major consideration. In fact, I’d say that cash flow is the King Kong issue of any business.

Whether you are just starting out, or you’ve been running a business for several years, you’ll find that ensuring ongoing cash flow is hard and requires vigilance.

Having access and carefully managing a line of credit can be the answer to short term problems (and there are always problems!).

There are many options, but the rewards available on credit card purchases make it an attractive way to manage expenses. You just need to be careful not to get into debt. Do your due diligence as an employer and know what to do for your business.

Things You Must Consider

1. It is easy to get into debt on a credit card.

Sure, a credit card means that your company will have additional funds available when you need them. But it also makes it tempting to take on debt through spending.

Debt can be a good thing if you leverage it for a return on investment. So, for example, if you buy advertising on your credit card for $500 and it returns a measurable result of $1000, then the debt was worthwhile.

Pay off the card before it incurs interest and repeat.

But if you are buying nicer throw pillows for your office, ask yourself whether that is worth paying interest on or tying up your credit cushion (no pun intended). Everyone likes a nice office, and maybe those throw pillows will make you money somehow. But if they do not have a measurable ROI, then wait to buy them until you have surplus cash.

The key is, don’t use a credit card to “consume” goods and services. Use it to keep your business in growth. If you can keep to that discipline, a credit card is an excellent tool.

2. Consider the cost of the card versus the benefit.

Here’s a simple example:

My husband immigrated to the United States when we got married. When he got here, he had no credit. In order to establish credit, we wanted to get a credit card for him. After that, we got an offer for a 1% cash back rewards card.

The card had an annual fee of $99. In order to break even on the fee after the 1% cash back was applied, we would have to use the card over the year for a total of $9,900 in purchases, or $825 per month.

And since he had no established credit, they only offered a line of $500 to start.

Doing the math, we would be losing money on the card unless we maxed it out and paid it off twice per month.

Needless to say, the card was not worthwhile. So we chose a card without an annual fee that was also without rewards, until his credit could get established.

As you can see, evaluating a credit card goes much deeper than just comparing interest rates and policies. You need to know your business, your spending habits, and what type of rewards program would be the best fit for you.

Consider:

  • Annual Fees
  • Grace Periods
  • Late Payments
  • Interest Rates
  • Reward Types and Restrictions
  • Insurance and Charge-back Policies

3. Whether you should give your employees access.

There are two ways to handle expenses with your employees. Way one is to give them permissions to use the company card. Way two is to make the advance expenses and turn in an expense report.

Personally, I do both, depending on the employee. For purchasers or key managers, having a company card makes more sense. I can’t ask them to order $1000 worth of office supplies on their own cards and expense it.

But for employees who have expenses related to sales or travel, a separate card is a good idea. It makes expense accounting must easier. But, just so you know, the employee gets to keep perks such as mileage or points.

To schedule a consultation about a business law issue, contact our attorneys at (800) 449-8992 or contact us online.

Insurance Policyholder Coverage

INSURANCE POLICY HOLDER COVERAGE

An insurance policy may come into existence as a contract, but insurance coverage issues fall under their own body of law. In many instances, lawyers that practice general business law assume that they can handle the problems and questions presented by insurance coverage issues, but what they may not realize is that insurance issues are far from intuitive in nature. Whether the issue is a disputed claim, a coverage issue, or a “duty to defend”, coverage issues are typically grounded in state law.

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If you are wondering if your insurer should be held liable for a specific claim or if you hold certain rights or benefits under your policy, the experienced insurance coverage attorneys of Bellatrix PC can assist you or your business. To schedule a confidential consultation, call us at 800-449-8992 or contact us online.

How Can An Insurance Coverage Attorney Help?

Our insurance coverage practice handles insurance issues ranging from relatively straightforward matters to extremely complex and multifaceted disputes. We handle first-party claims where the insured, himself or herself, files a lawsuit against the insurer for refusing to assume liability for a covered event. Our practice also handles third-party claims that typically arise due to a failure to defend or a failure to pay a claim submitted on the behalf of a covered policyholder. Our insurance coverage practice can also handle an array of other insurance related claims including:

  • The interpretation and assessment of existing or proposed insurance policies
  • Provide guidance in selecting a policy and level of coverage that is appropriate for anticipated risks.
  • Provide clear advice regarding the potential consequences of an insurance decision.
  • Understand the business, industry and the common risks faced by similarly situated businesses.
  • Anticipate actions by the insurer.

In short, attorneys who regularly handle insurance coverage issues for policyholders are aware of all the laws and regulations governing insurance carriers, policies, and what the policyholder is entitled to.

Who can Use an Insurance Liability Lawyer?

A lawyer who handles insurance coverage provides value to a broad array of individuals and businesses. Any policyholder who contacts a lawyer will receive a contract review and guidance on coverage issues, indemnity issues, and failure to defend issues, among other things. Others who would be well-served by establishing a relationship with an experienced insurance coverage attorney include:

  • Corporate lawyers – Lawyers working in a corporate firm are often the first place a potential client will go. Corporate lawyers who simply refer matters out to a general practitioner without first checking for insurance policy coverage may be doing their clients a disservice. Remember, failure to raise a timely coverage claim can be a grounds to oppose coverage. At Bellatrix PC, one of the first steps we take in any litigation is to analyze and seek insurance coverage.
  • Homeowners and renters – If you own a home, you almost assuredly have a home owner’s insurance policy. Likewise, many renters insure their goods and possessions. There is nothing worse than finding out after the fact that your coverage was insufficient or did not cover the things you thought it did.
  • Business owners and employers – Owners of a company know that their business faces certain common risks and certain risks that are unique to the industry. We can review insurance policies already in effect or suggest other types of policies to consider for your business.

Because insurance liability issues are determined by a particularized body of law, any individual or business whose interests are affected by a policy can find value in meeting with an insurance coverage attorney. While people most commonly seek an attorney after the fact, it is prudent to review your policy, the duties it creates, and its levels of coverage with an experienced professional before disaster strikes

Rely on our Experience handling Insurance Coverage Issues for Policyholders

The insurance coverages attorneys of Bellatrix PC are dedicated to assisting individuals and businesses with coverage issues. We can provide on-point advice to guide your purchase of an appropriate policy. Moreover, if your insurer has declined to defend or declined to provide coverage following a covered event, our attorneys can negotiate with the insurance company and advocate on your behalf. To schedule a confidential insurance coverage consultation, contact Bellatrix PC by calling (800) 449-8992 or contact us online.

Class Actions

CLASS ACTIONS

“Class action” is a pretty scary term. We hear about these types of cases constantly in the news, usually accompanied by a quick blurb about how a company is paying out millions of dollars in judgment or settlement. But what exactly are class actions and why should the everyday, small business owner be concerned?

At its most basic, a class action is a type of lawsuit in which the claims and rights of several people are decided in a single case. Most plaintiff’s bringing the action are never named in the suit, except a few to act as the “class representatives” whose names will appear on all pleadings filed with the court. Class actions can be wonderful because they allow people whose damages are too small to bring an individual lawsuit to try their cases together Further, sometimes class actions are the only practical way to stop illegal practices. Historically, class action suits have allowed individuals to stand up against the most powerful industries nationwide for deceptive practices and procedures. However, class actions can be detrimental, driving many companies out of business.

Class actions are filed in numerous areas of law, ranging from securities violation suits, product liability and consumer actions, to employment class actions. Employment class action lawsuits are typically brought on behalf of employees of a company for violations such as unpaid overtime, failure to provide breaks, to workplace discrimination.

Why it’s Important to Contact an Attorney at the First Sign of Trouble

As a small business employer, it is important to know how class actions work and how they could harm your bottom line. It is also incredibly important to know how to avoid them altogether.

First, class actions are like a regular lawsuit but on steroids. There are multiple plaintiffs, typically between 30-50 individuals. This means that litigation can quickly get out of hand with investigative work, i.e., discovery. It’s extremely easy to be buried in paperwork early on defending a class action. You will want to retain an attorney immediately and come up with a detailed litigation plan to attempt to eliminate any “sprawl,” essentially streamlining the case down to only what is needed. It’s extremely easy to not see the forest through the trees so to speak in a class action suit. Not having a litigation plan in place early can cost you and your business thousands of dollars.

Second, class actions are incredibly expensive to defend. Remember those 30-50 typical class members I discussed above? Each one of those individuals has claims against your company. There is a lot on the line for you defending a class action. You will want to hire an attorney knowledgeable about class actions and the area of employment law. Because employment law deals with a lot of statutory fines that are already established, it is easy to get an idea of how much a potential judgment could be early on. It is also important to realize that in most situations, the Court must approve any settlement you agree to with the parties. Meaning, if the judge doesn’t think your proposed settlement is “fair enough” for the class action members, he can send you back to the drawing board. Knowing and understanding these issues is vital to any small business owner.

Third, class actions can be pending for years. With the Court budget reductions nationwide, cases are sometimes lingering for several years before ever being heard for trial. Thus, a class action can be the rain cloud over your head for as long as four or five years.

Given all of this, business owners should take proactive steps to ensure they are not hit with a potential class action. Follow all labor codes within your state. You will want to make sure all employees are accurately paid all wages owed and taking all proper meal and rest breaks. This list is not all inclusive as there are numerous labor codes. Having an attorney who can guide you through the employment law landscape before you get served a class action could save you millions in the long run.

If Your Business is Involved in an Employment or Litigation Issue that Could Turn into a Class-Action, Our Attorneys Can Help

If you are unsure whether or not you might be exposed to a potential class action, take the proactive approach and contact Bellatrix PC today at (800) 889-8376 for peace of mind.

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Overtime

OVERTIME

Employees who work hours exceeding their standard shifts must be compensated accordingly with an overtime pay rate.  Employers who misclassify employees for purposes of avoiding overtime payments, or who otherwise fail to adequately compensate employees, are subject to substantial fines and may potentially face class action lawsuits.  Strict and careful compliance with federal and California labor laws is essential for businesses which wish to avoid costly litigation and civil penalties.

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At Bellatrix PC, our employment law attorneys have extensive experience representing corporations, partnerships, and limited liability companies in overtime lawsuits, misclassification lawsuits, and wage disputes.  We bring a sophisticated knowledge of California labor codes and a results-oriented approach to each case we handle, providing versatile legal services ranging from contract negotiation, to mediation, to litigation should aggressive action become necessary to resolve your matter.

To set up a private legal consultation, call Bellatrix PC at (800) 449-8992.

California Overtime Pay Rates: Laws and Regulations

Put simply, any work performed beyond the normal hours of employment is considered overtime.  However, the rules and regulations governing California overtime pay calculation and work limits are anything but simple.

In California, overtime is regulated by the Department of Industrial Relations, of which the Division of Labor Standards Enforcement (DLSE) or Labor Commissioner’s Office is a crucial component.  The DLSE is tasked with “adjudicat[ing] wage claims, investigat[ing] discrimination and public works complaints, and enforc[ing] Labor Code statutes and Industrial Welfare Commission orders” – including those pertaining to overtime.

Under California law, nonexempt employees are limited to working eight hours per day for a total of 40 hours per week.  Any work which exceeds these limits is counted as overtime, and must be compensated accordingly.  California’s overtime rates – at bare minimum – are as follows:

  • One and half times the employee’s normal pay rate for any work performed:
    • Beyond the eight-hour cut-off, up to 12 hours in a single workday.
    • The first eight hours worked on the seventh consecutive day of work.
  • Twice the employee’s normal pay rate (double pay) for any work performed:
    • Beyond the 12-hour cut-off noted above.
    • Any work beyond the first eight hours which is performed on the seventh consecutive day of work.

To reiterate, the above overtime rates represent the minimums permissible by law.  Employers must pay at least these rates.

Which Types of Employees Are Exceptions?

It is also important to address the crucial differences between the following employee categories as they pertain to overtime pay:

  • Nonexempt Employees – Employees to whom the aforementioned overtime rules apply.  In more general terms, nonexempt employees are employees who are not subject to Industrial Welfare Commission wage orders, which set standards for matters such as minimum wage and meal and rest periods.
  • Exempt Employees – Employees to whom the aforementioned overtime rules do not apply.
  • Exception Employees – Being an “exception” is not the same as being “exempt.”  Being exempt means no overtime rules apply at all, whereas being an exception means that special, non-standard overtime rules apply.  Some examples of employees who are exceptions to standard overtime laws – all of which are subject to their own, profession-specific pay regulations – include the following:
    • Ambulance Drivers
    • Camp Counselors
    • Hospital Workers
    • Live-In Employees
    • Nursing Home Managers
    • Personal Attendants

It is important to emphasize that employers are liable for providing overtime compensation even in cases where the employee exceeds authorized overtime limits.  However, in the interest of preventing employees from exploiting this requirement, California law also permits employers to discipline employees who surpass overtime thresholds.  Moreover, employees are not permitted to deliberately conceal their violations from employers in order to force an overtime payment.  Employers are liable for compensating excessive overtime only in instances where the employer “knew or should have [reasonably] known about” the work being performed.

Further, misclassifying employees and independent contractors can lead to major legal issues, including class action lawsuits. It is important to consult with an experienced legal professional when classifying employees and independent contractors to ensure compliance with all laws and reulations.

Employer Penalties for Labor Code Violations

In some situations, determining the regular rate of pay is very simple.  For example, if an employee is paid an hourly wage, then that number is the regular rate of pay.  For other types of employees, the calculation is less straightforward.  For example, to calculate the regular rate of pay for a salaried employee, the employer must (1) determine monthly compensation, (2) multiply by 12 to get the annual salary, (3) divide annual salary by 52 to get the weekly salary, and (4) divide weekly salary by 40.  This produces the regular pay rate.

It is critical to calculate the regular rate of pay accurately so that overtime pay may be calculated correctly in turn. Our attorneys are well-versed in California’s overtime and wage laws, and will help you make an accurate calculation so that you can avoid facing penalties for labor law violations.

Under Cal. Lab. Code § 1194(a), “Any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney’s fees, and costs of suit.”  The exception would be a case where the employer and employee agree upon a lesser wage in advance.

Other potential penalties for labor code violations include:

  • Missed Meal and Break Penalties – One hour of pay per day with no meal and break period
  • Payroll Period Violations – Up to $100 per pay period, per employee
  • Wage Statement Penalties – Up to $4,000
  • Waiting Time Penalties – Up to 30 days of pay

If your company has been accused of committing overtime violations, minimum wage violations, misclassifying employees, or other labor law violations related to employee compensation or meal and rest periods, the experienced employment law attorneys of Bellatrix PC can provide knowledgeable and experienced legal assistance.  To start discussing your situation and how we can help in a confidential consultation, call our law offices at (800) 449-8992 today.  Also, don’t forget to ask about our business risk review.

Sale of Business

SALE OF BUSINESS

In certain circumstances, selling a business can prove to be a lucrative and beneficial exit strategy. It can also be a lengthy and complicated procedure. Before you embark on this challenging process, it is critical to consult with an experienced business attorney, like the attorneys of Bellatrix PC.

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Our legal team routinely works with partnerships, corporations, and limited liability companies across a broad spectrum of industries. We are prepared to advise and represent you on every aspect of selling your business, including preparing your entity for sale, performing due diligence, negotiating with potential buyers, and drafting and reviewing covenants not to compete, non-disclosure agreements, business sale agreements, security agreements, and other documents necessary to complete the process smoothly.

Even if you aren’t entirely sure whether it’s the right time in your entity’s life cycle to consider selling the company, our business attorneys can offer counsel on your legal options and their potential financial outcomes and ramifications. We pride ourselves on our in-depth understanding of the intricacies of the state and federal laws, and will work closely with you to identify a strategic approach toward achieving your desired outcome.

To discuss whether a sale of business is right for you, or other ways we can help you succeed, call the law offices of Bellatrix PC at (800) 449-8992.

Asset Sale vs. Stock Sale: Which is Right for Your Business?

Business sales are not one-size-fits-all. For instance, the distinction between selling stocks and selling assets should not be understated. The type of sale you enter will have a significant impact upon your tax liabilities, and in turn, your ability to benefit financially. Our attorneys will evaluate you specific situation and counsel you on the decision that is the most advantageous to you.

When you sell a company’s assets, it means that the buyer purchases your assets while you retain possession of limited liability company membership interests or corporate stocks, depending on how your entity is structured. Examples of company assets include industrial equipment, furniture and appliances, trade names, trade secrets such as software or algorithms, items included in inventory, accounts receivable, real estate, and other items. While you continue to own the company from a technical standpoint, the entity’s assets are no longer in your possession or control.

Business buyers tend to favor this type of sale. In addition to benefiting from a tax standpoint, by purchasing only the entity’s assets and not the entity itself, the buyer avoids the danger of assuming the company’s outstanding liabilities, including the company’s debts and civil liabilities like like breach of contract or sex discrimination lawsuits.

While sellers have the power to exclude from the sale any assets which they decide they would like to keep, the so-called “tax bite” generally make asset sales unfavorable to sellers. This is particularly true of C-Corporations due to their susceptibility to double-taxation. As a business seller, it is typically more favorable to make a stock sale.

Stock sales are effectively the inverse of asset sales. In other words, instead of selling the assets and keeping the corporate stock or LLC membership interests, the company continues to own the entity’s assets and you sell your stocks or LLC membership. Likewise, the pros and cons for buyers and sellers are also inverse: prospective buyers may resist accepting stock sale proposals because they are hesitant to assume the entity’s liabilities, while sellers benefit from a taxation and liability standpoint.

For all of these reasons, it is crucial to enter buyer-seller negotiations with an experienced and aggressive business sale lawyer on your side. Your attorney will protect you from inadvertently accepting unfavorable terms, and will keep you informed of the potential advantages and drawbacks throughout the negotiations process.

Due Diligence Checklist for Selling Your Company: Preparing for Buyers

Due diligence is generally associated with business buyers who must carefully appraise and evaluate a potential purchase before committing to the transaction. However, it is equally important for business sellers to prepare for the inevitable due diligence phase of the purchase and sales process. Advance preparation can make the business appear more attractive to potential buyers, and in turn, can allow you to complete the sale more rapidly and with an enhanced financial benefit. Needless to say, a seller’s failure to disclose information to a potential buyer can make even the most promising transactions turn sour. That’s why preparation is for a sale is as critical to a seller as it is to a buyer.

In order to keep the transaction as smooth and efficient as possible, sellers should gather and prepare the following documents and records:

  • LLC records or corporate books, including but not limited to, where applicable:
    • Business Ownership Certificates
    • Certificates of Good Standing
    • Corporate Meeting Minutes
    • Corporate Resolutions
  • Contracts with vendors, distributors, suppliers, customers/clients, and other businesses.
  • Trade secrets and intellectual property.  Trade secrets can potentially include any of the following:
    • Algorithms
    • Blueprints/Inventions
    • Databases
    • Marketing Strategies
    • Recipes
    • Software/Computer Programs
    • Supplier Lists
  • Tax and other financial documents, including but not limited to:
    • Balance Sheets
    • Profit and Loss Statements (“P&Ls”)
    • Tax Returns
  • Any special permits and/or licenses your business may hold, such as a liquor license or an outdoor entertainment license.
  • A breakdown of your business’ inventory.
  • Documents pertaining to real estate and property, including but not limited to:
    • Commercial Leases
    • Deeds of Trust
    • Mortgages
    • Property Liens
    • Zoning Permits

The forgoing is not a complete list, and should be evaluated on a case by case basis. If you’re ready to sell your entity, or are still thinking about whether the sale of the business could be right for you and your company, the business lawyers of Bellatrix PC can help. To start discussing your goals in a private consultation, call our law offices at (800) 449-8992 today. If a sale is not desired or appropriate for your entity, we may be able to assist with business dissolution or other alternatives.