Legal Blog

Colorado Congressman Coffman Co-sponsors SDVOSB Verification Bill

Posted by Joseph Whitcomb on Nov 10, 2015 6:30:13 PM

HR 3945-Another Attempt to Revamp the SDVOSB Verification Process

On November 5, 2015, Representative Mike Coffman, along with five co-sponsors introduced HR 3945, titled Improving Opportunities for Service-Disabled Veteran-Owned Small Businesses Act of 2015.  While the text of the bill was not available at the time of this writing, Ben Stein, Coffman’s chief of staff, sent over a brief description of the components of the bill.  That document can be downloaded here.  Importantly, Representative Coffman, who served in both the United States Army and Marine Corps as both enlisted and an officer, has submitted similar bills for passing in previous sessions of Congress.

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Topics: CVE verification, sdvosb

Protecting Your Company's Precious Trade Secrets

Posted by Brandon Selinsky on Nov 10, 2015 4:19:43 PM

Trade secret laws protect the proprietary information that make your business unique and valuable. They fall under the broad spectrum of intellectual property law but carry some distinct advantages. Trade secret laws allow you to keep your important information secret as long as you take reasonable measures to keep it from entering the public stream.

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Topics: Intellectual Property, Trade Secret Law

Significant Veteran Business Set-aside Case Pulled off SCOTUS Calendar

Posted by Dan McAuliffe on Nov 10, 2015 2:54:16 PM

The U.S. Supreme Court (SCOTUS) was scheduled to hear oral arguments on September 9 in a case involving whether the Department of Veterans Affairs (VA) must prioritize service-disabled veteran-owned small businesses (“SDVOSBs”) when it buys supplies and services. The case has been withdrawn from the calendar and both sides are required to prepare briefs filed regarding whether the case is now "moot" as the source of the underlying controversy has ended because the disputed contracts in the case “have been fully performed….”  If the case is moot it will be dismissed.

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Topics: Service Disabled Veteran Owned Small Business (SDV

Is Your LLC's Operating Agreement Protecting You

Posted by Joseph Whitcomb on Oct 13, 2015 12:37:08 AM

Unanimous Consent Language and Other Requirements

In the past two years, several applicants for inclusion in the VIP database have received denial letters from the CVE, because of wording in their operating agreements.  The most common reason for denial is language requiring unanimous consent to amend the agreement itself or to add members to the LLC.  The VA’s OSDBU posts its official position on operating agreements here.  OSDBU Brief

However, the LLC Acts of 23 States and the Uniform LLC Act require that Operating Agreements be amended only with the unanimous consent of the members.  A similar number of States require unanimous consent of the members to add or disassociated members after the filing of origination documents.  Download the survey here:

 50 State Survey

This unanimous consent requirement by the States makes sense when you consider that Operating Agreements are corporate governance documents, but also serve as a contractual agreement between the members.  If a member is added or removed, the equity interests of at least some of the other members necessarily changes.  Also, the voting paradigm shifts for any proposed changes to the firm.

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Topics: Service Disabled Veteran Owned Small Business (SDV, Government Procurement

Alcohol and Tobacco Tax Trade Bureau--Managing Our Vices

Posted by Brandon Selinsky on Aug 25, 2015 5:55:00 PM

Who's in Charge of the Beer?

Great American Beer Festival season is upon us and our turns our thoughts to beer.[1] In recent years, discussions of brewing law have often revolved around trademark disputes, which have become increasingly contentious and numerous. But trademark disputes are like the early arrival of pumpkin beers: we need a break from all that. Instead, we are going to look at the decidedly less sexy—but equally important--topic of the TTB.

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Topics: Trademark Law

Facility Clearance Can Be Pre-Condition For Government Contract Offers

Posted by Dan McAuliffe on Aug 25, 2015 5:05:21 PM

Will your lack of facility clearance effect your ability to win a bid?

The GAO has reaffirmed that the possession of a secret facility clearance by a government contractor may be a pre-condition to submitting a bid. 

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Topics: Government Procurement

Should We Be Trying So Hard to Help Veterans Adjust?

Posted by Joseph Whitcomb on Aug 25, 2015 9:19:00 AM

Should Veterans Adjust to Us or Us to Them?

“In the military, we give medals to people who sacrifice themselves, so that others may survive.  In corporations, we give bonuses to people who sacrifice others, so that they may benefit.” Simon Sinek, author of Leaders Eat Last, Why Some Teams Pull Together and Others Don’t

It's not hard to find someone nowadays advancing the idea that hiring veterans is a good idea.  After all, the saying goes, look at all the great traits the military teaches its service members:

  • “Courage under fire,” which translates to “works well under pressure.”
  • “Teamwork,” which translates to, “works well with others.”
  • “Initiative,” which translates to, “Self-starter.”
  • “Selfless service,” which translates roughly to “they’ll work hard and ask for little in return.”
  • And “Discipline,” which translates to “they’ll show up to work on time and do what they’re told.”

What few CEOs or HR managers consider, is that they may commit to the feel-good measure of hiring Veterans and then realize few of the benefits they anticipated when making the hire.  Unfortunately, what usually follows is someone becoming the Veteran’s apologist.  Stakeholders expecting the Veteran to shine and finding themselves disappointed quickly run through the list of “usual suspect” excuses.

1) The Veteran is having a hard time adjusting to civilian life;

2) The military just didn’t train the Veteran for anything useful for the civilian market place;”

3) The Veteran must be suffering from PTSD or some other variety of “the military broke the Veteran.” 

What almost none of them do is think to themselves or say out loud, “boy, we must have really fallen short of this Veteran’s expectations.”  Unfortunately, even fewer would be willing to change their corporate culture if they did stop to ask the question and found themselves answering in the affirmative.

Is Your Mission Statement as Cool as Their Old One?

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Topics: Service Disabled Veteran Owned Small Business (SDV

Misleading and Profane Language Precludes Trademark Registration

Posted by Brandon Selinsky on Jul 21, 2015 6:40:09 PM

Some examples of what will preclude trademark registration? 

When designing or searching for a mark to represent a product or service, a savvy business owner knows to research that mark against existing ones for clearance against possible infringement. But a search alone is not always sufficient. In this article, we look at section 1052 of the Lanham Act, which primarily addresses aspects of a mark that would preclude trademark registration.

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Topics: Trademark Law, Intellectual Property

Clearly Unreasonable Contracting Officer = Attorney's Fees and Costs

Posted by Joseph Whitcomb on May 12, 2015 8:59:00 AM

What Should I Do If Faced with a Clearly Unreasonable Contracting Officer?

Federal contracting officers have broad discretion – within the limitations and unreasonable contracting officerallowances of the FAR. But, COs must respond in writing to claims filed by contractors. If they do not, they are violating the FAR and contractors are eligible for attorney's fees and other costs and penalties. A recent federal appellate court decision reveals that egregious breaches by unreasonable CO renders the FAR immaterial and courts will rely on the common law of contracts to make contractors whole.

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Topics: Appellate Law, Government Procurement

Equitable Estoppel Defense in Intellectual Property Infringement Claim

Posted by Joseph Whitcomb on May 12, 2015 8:38:00 AM

Can an Equitable Estoppel Defense Win the Day in Intellectual Property Infringement Casesequitable estoppel defense

This blog post will be the first of a series dealing with this subject. In completing my LLC (Master of Laws) in International Business Transactions at the University of Denver Sturm College of Law, I spent the last 4 1/2 months studying the subject of Intellectual Property rights in an International Business Transactions setting. This series of blogs will be about the International Trade Commission’s treatment of four affirmative defenses over the last ten years: Collateral estoppel, waiver, laches, and acquiesces. The author’s method of research involved reviewing a sampling of 85 International Trade Commission (ITC) decisions issued since January 1, 2005. Most of these cases involved hundreds of filings and some were filed by Fortune 100 companies. What this blog will deal with are the affirmative defenses raised in these cases, the elements of those defenses, and the Administrative Law Judges’ (ALJs’) treatment of those defenses.

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Topics: International Business, Copyright Law, Trademark Law, Intellectual Property

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  • Health Care Law
  • international business transactions
  • Trademark Law

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