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Business & Commercial Law

Business law and commercial law are two areas of legal practice that have so many overlapping issues that most attorneys who practice one will also have expertise in the other. Commercial law focuses on the sale and distribution of goods, as well as financing of certain transactions. Business law focuses on the other aspects of business, including forming a company, mergers and acquisitions, shareholder rights, and property issues such as leasing office or warehouse space. A business that sells products will almost certainly need a lawyer with experience in both of these fields.

Business law is regulated by both state and federal law. The federal government primarily governs stocks and investments, workplace safety and employment laws, and environmental protections. States, however, can add to these federal laws and pass their own laws in other areas, such as imposing licensing requirements for certain professions and establishing rules for forming and running a legal business.

Commercial law is primarily regulated by the Uniform Commercial Code (UCC), which is a model set of laws regarding the sales of goods, leases of good, negotiable instruments, and secured transactions. All states have adopted some form of the UCC, though each state is free to make its own modifications to the laws as it sees fit. Because many states have modified at least some of the UCC provisions to fit their needs, it is important to hire a lawyer familiar with the UCC as it has been enacted in your state

Business and Commercial Disputes

Contract Disputes
Our business contract dispute attorneys can assist you resolving your contract disputes, including breach of contract (such as breach of supply contracts, breach of employment contracts, and breach of purchase agreements), in a cost effective manner designed to achieve the results you want. We can utilize alternative dispute methods or negotiate settlements on your behalf, or we can aggressively pursue your claim in trial. We are equally comfortable in front of a jury, or (if your contract calls for ADR) an arbitrator or mediator.

Commercial Lease Disputes
Our real estate litigation attorneys can assist you in resolving business lease disputes or other real estate matters.

Employment Litigation
Our employment litigation attorneys can help businesses handle employment related litigation, including discrimination, harassment, and wrongful discharge, as well as breach of separation or termination agreements.

Other Business Disputes
Our business litigation attorneys can assist you with any other business dispute, including ownership issues, Strategic Lawsuit Against Public Participation (“SLAPP”) proceedings and SLAPP responses, title issues, and insurance disputes.

Business Dissolution

Business Sale
Our business sale attorneys can assist you in selling your business and minimizing or terminating your exposure to future liability. Business SuccessionOur business succession attorneys can help pass your business to your heirs, while working with your tax advisor to minimize tax consequences.

Business Closing
Our business termination attorneys can help with all phases of terminating or dissolving your business, including winding up your corporate or business affairs, taking care of any tax liability, selling assets, and distributing assets and revenue.

Our business sale attorneys can assist you in selling your business and minimizing or terminating your exposure to future liability.
Business SuccessionOur business succession attorneys can help pass your business to your heirs, while working with your tax advisor to minimize tax consequences.

Business Closing
Our business termination attorneys can help with all phases of terminating or dissolving your business, including winding up your corporate or business affairs, taking care of any tax liability, selling assets, and distributing assets and revenue.

Business Organization and Starting a Business

California Business Formation Attorney
Our knowledgeable business planning, business formation, and business incorporation lawyers can help you with all aspects of starting or organizing (or reorganizing) your business, including the following:

Business Planning
Our business planning attorneys will work with your accountant or tax planner to plan the right entity for you, taking into consideration tax consequences and liability exposure. We will also help you plan for contingencies such as buy outs or death of a shareholder or partner.

Business Formation
Our business formation attorneys can help organize your business, including incorporation (C-corporation or S-corporation), limited liability company (LLC), limited liability partnership (LLP), professional limited liability companies (PLLC), professional corporations (PC), and partnerships. We also assist with other aspects of incorporation, including procuring and issuing stock certificates and drafting shareholder agreements.

Business Acquisitions
Our mergers and acquisition attorneys can help with all phases of a business acquisition, including mergers, stock purchases, and asset purchases.

We also invite you to visit our Business Organization and Starting a Business Information page to get more general information about C corporations, S corporations, and LLCs.

Civil Litigation

Civil litigation is a term used to describe the legal process applied to non-criminal matters. Civil litigation is thus the filing and subsequent application of a civil lawsuit; civil litigation is incorporated into a non-criminal dispute to help produce a resolution. Civil litigation will aim to resolve such disputes as, family law disputes, court custody cases, matters involving child support payments, disputes between individuals and credit card companies, disputes involving landlord and tenants, as well as situations that involve a breach of contract.

Civil litigation is the process of resolving a legal dispute between two or more parties (individuals or business entities) who seek compensation (in the form of money) for damages incurred or specific performances that were not delivered.

Lawyers or legal professionals who specialize in civil litigation are known as ‘litigators’; legal professionals who practice civil litigation will represent a party in a trial, a hearing, or a form of alternative resolution method, such as arbitrations or mediations—these forms of hearings are heard by administrative agencies, foreign tribunals and federal, state, or local court systems.

Civil Litigation Types

Civil litigation will encompass a broad range of disputes that will directly enact a number of legal matters. As a result of this widespread characteristic, a civil litigator will typically specialize in a specific practice area. The most common types of civil litigation will include: disputes and laws that encompass landlords and tenants, environmental law, products liability, intellectual property disputes, construction, medical malpractice, employment and labor issues, anti-trust laws, real estate, worker’s compensation, and education law.

Civil Litigation Attorneys

The primary role of our civil litigation attorneys is to assume the dispute and oppositional position faced by their hired party. As a result of this, civil litigation attorneys must possess a firm knowledge of the legal matter in question and must fully understand the principles and intricacies of the underlying dispute.

A civil litigation attorney must be well-versed in the seven distinct stages of civil litigation: the investigation of the case, the observation of pleadings, and the discovery stage (the gathering of evidence and witness testimonies), pre-trial, the delivery and evaluation of the settlement and the appeal process if necessary. That being said, the majority of civil matters do not pass through each state of litigation; the majority of lawsuits will be settled prior to trial (the majority of civil matters are settled in the discovery portion of civil litigation).

For those civil matters that do reach a trial verdict, the majority of them are not appealed. Given the different stages and the varying subject matter involved in each case, the lifespan of a civil lawsuit may range from several months to several years—more complex civil litigation matters will often take years to pass from pre-suit investigation through trial and the subsequent settlement.

The discovery portion of civil litigation is the most labor-intensive portion of the process. As a result of this notion, the average civil litigator spends little time in the actual courtroom; the majority of resources and time are devoted to the gathering and evaluation of witness testimonies and evidence in the discovery stage.

Employment Law

Employment discrimination litigation
Our employment discrimination litigation attorneys can help businesses and employees with discrimination issues in the workplace, including race discrimination, age discrimination, sex discrimination, handicap discrimination (Americans with Disabilities Act – ADA), Title VII issues, and other forms of employment discrimination.

Our aggressive employment discrimination attorneys can assist you with all aspects of an employment discrimination claim, including the following:

  • Race discrimination
  • Sex discrimination
  • Age discrimination
  • Country of origin discrimination
  • Religious discrimination
  • Sexual preference discrimination
  • Disability discrimination (American with Disabilities Act- ADA)

Sexual Harassment Claims
Our sexual harassment claims attorneys can assist you with claims of sexual harassment, including inappropriate comments, requests for sexual favors, and other sexual harassment issues. We also handle other forms of harassment such as religious harassment and sexual preference harassment.

Unwanted sexual advances, sexual innuendos, and inappropriate remarks inferring or directly referencing sex, can be construed as sexual harassment. Our sexual harassment lawyers understand the employment policies that should be in place, as well as state and federal laws governing employment harassment.

What some people and businesses don’t realize is that employment harassment is much broader that just sexual harassment. It can include the following:

  • Race harassment
  • Sex harassment
  • Age harassment
  • Country of origin harassment
  • Religious harassment
  • Sexual preference harassment
  • Disability or handicap harassment

In addition, employment harassment laws are in many respects less restrictive than employment discrimination laws. If your company is accused of employment harassment, or you believe you are a victim of harassment, you should consult a knowledgeable attorney.

Wrongful Discharge Litigation
Our wrongful discharge litigation attorneys can assist you with claims of wrongful discharge, including those based on wrongful termination for filing a workers comp claim, FMLA, or reporting a company wrongdoing (Whistleblower or Qui Tam claim)

Our wrongful termination lawyers represent employees and employers that may have a wrongful termination claim or a retaliatory discharge claim. Employers cannot terminate employees for certain reasons, including:

  • Employers cannot terminate an employee on the basis of race, sex, age, or other protected classes.
  • Generally, employers cannot fire an employee in retaliation for filing a workers’ compensation claim, requesting FMLA, or taking advantage of any company provided benefit.
  • Typically, employers cannot fire an employee for whistleblowing, filing a Qui Tam claim, or reporting suspected illegal or harmful activity.
  • Employers also cannot fire an employee in retaliation for filing an employment discrimination claim or reporting sexual harassment.

If your company is accused of wrongful discharge, or if you believe you have been fired wrongfully, you should consult a knowledgeable attorney.

Employment Contracts
Our employment contracts attorneys can assist you with negotiating, drafting, reviewing, or litigating an employment contract or separation / termination agreement. We also handle forum selection issues that govern the enforceability of non-complete clauses in termination agreements. As a courtesy, we have provided a Sample Employment Agreement for your review.

Employment Contract Disputes
Our employment contract law attorneys are experienced in handling employment litigation or disputes of issues of breach of an employment contract, breach of a separation or termination agreement, misappropriation of trade secrets or proprietary information, and other breach of contract actions.

Development and proprietary rights of intellectual property
Our employment contract law attorneys handle development and proprietary rights of intellectual property matters, including employment contract specifications as well as “work for hire” issues.

Misappropriation of trade secrets or proprietary information
Our employment contract law attorneys handle misappropriation of trade secrets or proprietary information matters, including secret formulas, customer lists, company processes, and other proprietary information.

Employment Litigation Avoidance
Our employment litigation avoidance attorneys assist businesses in minimizing the risks of employment litigation through proper training, assistance with employee handbooks, and other materials designed to inform management how to handle situations, follow up on reported employment issues, and implement an employment policy.

Whistleblower and Qui Tam

Our whistleblower attorney has a through understanding of Qui Tam and whistleblower laws. Those laws are designed to provide employees with an incentive to police their employers and report an illegal activities or activities that harm the public or are contrary to public policy.

If an employee has notified your company of suspected wrongdoing or involved you in a whistleblower or Qui Tam claim, you should consult a knowledgeable attorney.

Insurance Law

Our experienced insurance litigation attorney can help you resolve your insurance dispute in an efficient, cost-effective manner. Sometimes it appears that insurance companies routinely deny claims as a cost-saving practice. In many instances as soon as we become involved, our clients’ claims are processed and our clients receive compensation. We provide clients with knowledgeable advice regarding insurance issues, including:

Reviewing Insurance Policies
To ensure you have the right policy and understand your coverage

Insurance Coverage Issues – including determining if your policy should be compensating you for an occurrence or event

Insurance Claim Issues
Including resolving issues when you have had an insurance claim denied

Insurance Disputes
Including coverage issues, insurance company bad faith claims for unreasonably denying your claim, and resolving insurance issues when multiple parties or insurance policies are involved

Monitoring Claims
We monitor your claim to ensure you are getting the benefits of your insurance policy, including monitoring insurance defense representation against potential liability

If you have been denied a claim, would like your insurance policy reviewed, or would like your litigation monitored, you should consult with an experienced insurance litigation attorney.
you need a San Jose business law attorney, or a California trial lawyer to handle an employment claim or breach of contract action, we can help.

Real Estate Law

Roberts | Elliott represent land owners, purchasers, sellers, developer, contractors, and subcontractors in real estate transactions and real estate litigation matters. We handle real estate matters throughout the South Bay, Silicon Valley, and Santa Clara County area.

We have over 25 years of experience handling real estate claims and assisting clients with real estate matters. In addition, our law firm has earned a reputation for providing knowledgeable legal services in real estate transactions and disputes.

Our experienced real estate attorney can help you resolve your real estate matter in an efficient, cost-effective manner. We provide clients with knowledgeable advice regarding the following:

  • Construction Litigation (Anchor to below content)
  • Commercial Leases (Anchor to below content)
  • Real Estate Litigation
  • Land Use and Zoning Issues
  • Breach of Contract

Many construction claims involve multiple insurance companies and typically, everyone who is involved in a construction project gets sued when something goes wrong. Everyone is pointing their finger at someone else. You need an experienced construction litigation attorney looking out for, and zealously protecting, your legal interests.

Our aggressive construction law attorneys can help you handle your construction litigation in an efficient, cost-effective manner. We will ensure your legal interests are protected so you can focus on your business, not the litigation. We can provide you with knowledgeable advice regarding construction law issues, including the following:

Construction Litigation

Construction Contracts – including reviewing your contract for compliance; we can also assist with breach of contract claims, including delay issues, business interruption claims, and other allegations of breach of your construction contract

Licensing Issues – we can help you with licensing issues and assist you in making sure all your licenses are current and you have obtained the proper permits

Insurance Issues – including coverage issues, policy reviews, and issues regarding the denial of your claim

Mechanics Liens – we can help you file and perfect your mechanics lien, and with other collection issues

Construction Defect Claims – we can defend you against construction defect claims

Trade Secrets

Broadly speaking, any confidential business information which provides an enterprise a competitive edge may be considered a trade secret. Trade secrets encompass manufacturing or industrial secrets and commercial secrets. The unauthorized use of such information by persons other than the holder is regarded as an unfair practice and a violation of the trade secret. Depending on the legal system, the protection of trade secrets forms part of the general concept of protection against unfair competition or is based on specific provisions or case law on the protection of confidential information.

Uniform Trade Secrets Act

Trade Secret Law varies from State to State, and may include common law (Judge made law), statutes, or both. Many States, including California have adopted the Uniform Trade Secret Act, as outlined below:

Under the UTSA, a “Trade secret” is information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and

Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

If you have any questions or would like to discuss a specific Trade Secret issue, please contact us.

Uniform Trade Secrets Act, California Civil Code (2003)

§ 3426. Citation of title
This title may be cited as the Uniform Trade Secrets Act.

§ 3426.1. Definitions
As used in this title, unless the context requires otherwise:

“Improper means” includes theft, bribery, misrepresentation, breach or inducement of a breach of a duty to maintain secrecy, or espionage through electronic or other means. Reverse engineering or independent derivation alone shall not be considered improper means.

“Misappropriation” means:

Acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or

Disclosure or use of a trade secret of another without express or implied consent by a person who:

Used improper means to acquire knowledge of the trade secret; or

At the time of disclosure or use, knew or had reason to know that his or her knowledge of the trade secret was:

Derived from or through a person who had utilized improper means to acquire it;

Acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or

Derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or

Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake.

“Person” means a natural person, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:

Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and

Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

3426.2. Injunction against actual or threatened misappropriation
Actual or threatened misappropriation may be enjoined. Upon application to the court, an injunction shall be terminated when the trade secret has ceased to exist, but the injunction may be continued for an additional period of time in order to eliminate commercial advantage that otherwise would be derived from the misappropriation.

If the court determines that it would be unreasonable to prohibit future use, an injunction may condition future use upon payment of a reasonable royalty for no longer than the period of time the use could have been prohibited.

In appropriate circumstances, affirmative acts to protect a trade secret may be compelled by court order.

3426.3. Damages
A complainant may recover damages for the actual loss caused by misappropriation. A complainant also may recover for the unjust enrichment caused by misappropriation that is not taken into account in computing damages for actual loss.

If neither damages nor unjust enrichment caused by misappropriation are provable, the court may order payment of a reasonable royalty for no longer than the period of time the use could have been prohibited.

If willful and malicious misappropriation exists, the court may award exemplary damages in an amount not exceeding twice any award made under subdivision (a) or (b).

3426.4. Attorney fees
If a claim of misappropriation is made in bad faith, a motion to terminate an injunction is made or resisted in bad faith, or willful and malicious misappropriation exists, the court may award reasonable attorney’s fees to the prevailing party.

3426.5. Methods for preserving secrecy of trade secret
In an action under this title, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.

3426.6. Limitation period; Accrual of cause of action
An action for misappropriation must be brought within three years after the misappropriation is discovered or by the exercise of reasonable diligence should have been discovered. For the purposes of this section, a continuing misappropriation constitutes a single claim.

3426.7. Effect of title on other statutes or remedies
Except as otherwise expressly provided, this title does not supersede any statute relating to misappropriation of a trade secret, or any statute otherwise regulating trade secrets.

This title does not affect (1) contractual remedies, whether or not based upon misappropriation of a trade secret, (2) other civil remedies that are not based upon misappropriation of a trade secret, or (3) criminal remedies, whether or not based upon misappropriation of a trade secret.

This title does not affect the disclosure of a record by a state or local agency under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). Any determination as to whether the disclosure of a record under the California Public Records Act constitutes a misappropriation of a trade secret and the rights and remedies with respect thereto shall be made pursuant to the law in effect before the operative date of this title.

3426.8. Statutory Construction
This title shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this title among states enacting it.

3426.9. Severability
If any provision of this title or its application to any person or circumstances is held invalid, the invalidity does not affect other provisions or applications of the title which can be given effect without the invalid provision or application, and to this end the provisions of this title are severable.

3426.10. Application of title to acts occurring prior to statutory date; Continuing acts
This title does not apply to misappropriation occurring prior to January 1, 1985. If a continuing misappropriation otherwise covered by this title began before January 1, 1985, this title does not apply to the part of the misappropriation occurring before that date. This title does apply to the part of the misappropriation occurring on or after that date unless the appropriation was not a misappropriation under the law in effect before the operative date of this title.

3426.11. Applicability of official proceedings privilege to disclosure of trade secret information
Notwithstanding subdivision (b) of Section 47, in any legislative or judicial proceeding, or in any other official proceeding authorized by law, or in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, the voluntary, intentional disclosure of trade secret information, unauthorized by its owner, to a competitor or potential competitor of the owner of the trade secret information or the agent or representative of such a competitor or potential competitor is not privileged and is not a privileged communication for purposes of Part 2 (commencing with Section 43) of Division 1.

This section does not in any manner limit, restrict, impair, or otherwise modify either the application of the other subdivisions of Section 47 to the conduct to which this section applies or the court’s authority to control, order, or permit access to evidence in any case before it.

Nothing in this section shall be construed to limit, restrict, or otherwise impair, the capacity of persons employed by public entities to report improper government activity, as defined in Section 10542 of the Government Code, or the capacity of private persons to report improper activities of a private business.

If you have any questions or would like to discuss a specific Trade Secret issue, please contact us .

Other Trade Secret Resources

United States Trade Secret Law
Recent Trade Secret News at the Trade Secret Home Page
Uniform Trade Secret Law with 1985 amendments