Link To Guest Website: Tarlow Breed Hart & Rodgers

Title: “Determining Where To Litigate”
Guest: Mark Furman – Tarlow Breed Hart & Rodgers
Interviewer: Jeffrey Davis – MAGE LLC

Click here to read the transcript

Jeffrey (0s):
Well, hello everybody. And welcome back to Radio Entrepreneurs. My name is Jeffrey Davis and I’m host of Radio Entrepreneurs every week. We like to focus in on the segment entrepreneurship and the law. And that means we’re talking again with Mark Furman, from the law firm of Tarlow Breed, Hart and Rodgers. Welcome back, Mark.

Mark (18s):
Hi Jeffrey. Great to be with you.

Jeffrey (20s):
And all the laws are changing as quick as we talk almost weekly. So what’s the hot topic today, mark?

Mark (27s):
Well, this isn’t necessarily the hottest topic, but it’s one that I find all the time in my practice that comes up in that and the inconvenience when something goes wrong, how you go about resolving the disputes? Something nobody pays any attention to, but we live in a, you know, an international world and people are doing business all over the country and they’re selling product all over the country. And if something goes wrong, you know, where do you want to have to resolve the dispute in your backyard or 3000 miles away or in a foreign country?

Mark (1m 15s):
So it just seems like a boring subject because entrepreneurs are thinking about all of the positives of a particular deal. And unfortunately, things that come across my desk to include cases where there’s a problem. You know, somebody gets hurt. A property is damaged, a delivery isn’t made on time. There were lost profits. There all sorts of a domino effect from something that goes wrong. So, you know, most agreements that I see, frankly, with prepared by entrepreneurs, don’t even broach the subject of what law will apply and where the dispute will be decided.

Mark (2m 10s):
And sometimes that makes a difference in who wins. It certainly makes a difference in how convenient the form is. Different states have different statute of limitations. Different states ha allow different amounts of damages. In some states you can disclaim certain types of damages and others, you can’t. So it’s just this I’ll call it the mundane, the boring stuff that lawyers focus on has real life implications for clients when a dispute arises.

Mark (2m 51s):
So I like to remind entrepreneurs of that from time to time, because it’s a whole lot easier to prevent the problem than it is to solve the problem. I have the classic case where in one dispute involving the purchase and sale of a business, there were four different places that the dispute had to be resolved. Arbitration and Atlanta, a lawsuit in Florida, arbitration in Boston and a lawsuit in a court in Massachusetts.

Mark (3m 33s):
That’s not an efficient way to resolve disputes and costs. The parties say a lot of money because their agreements didn’t address where the dispute would be resolved in a way that made any sense. No lawyers were involved

Jeffrey (3m 56s):
Well, I’ve, I’ve always felt over the years that you’re the one who taught me to be careful because as a management consultant, it’s fairly frequent that clients ask me to get involved with deals of all sorts as either a third-party advisor or directly with let’s say a another company or a large corporation. And whenever I read the let’s say the NDA or whatever I’m sent by the, by the other company, it always talks about litigation. If there’s litigation, California, Illinois, and Louisiana, and also paying legal expenses.

Jeffrey (4m 37s):
The second part who was paying the legal expenses during the process. And I always tell my client, I go, I’m not negotiating anything. If I’m getting on a plane to California to litigate. Cause we’re, we’re, we’re both in big trouble and I’m not paying their legal expenses either. So it’s, it’s true. So many times my clients don’t read that stuff. And whenever I do go back to a company, I say, look, we want it. We want to work this out with you, but we don’t want to be traveling across country to do litigation with you when we don’t expect to be doing it. But you gotta, you gotta do this as a Massachusetts thing. You gotta make it easy on us if you really want to make a deal work. So you’ve taught me those two things and that’s probably the first area I go to when I’m looking at those documents and I, I owe it all to you and you’ve probably, I haven’t gotten in trouble, but I would still say you saved my bacon many times.

Jeffrey (5m 30s):

Mark (5m 31s):
Well, I appreciate that Jeffrey you’re kind words, but you know, the, the thinking can be instinctively that it’s just boilerplate. So people sign NDAs just as one example without really giving it much side. Well, of course, you know, it’s an NDA, of course, you’re going to keep it confidential, but, but disputes do arise and it takes five minutes for a lawyer to read an NDA typically. And you know, you’re not looking to reinvent the wheel. You’re just looking at, you know, what are the big issues?

Mark (6m 13s):
And as you correctly, point out where any dispute gets resolved, whether there’s an attorney’s fees clause in there or not, those would be kind of hot button issues for me. And I think they it’s helpful for clients. You know, people just I’ve seen cases where entrepreneurs and very, very busy have even had key employees, right? Their agreements, their employment agreements. I really don’t recommend that, But you know, some of the things that I see, I just think if, if people weren’t so busy, they stopped to think about it.

Mark (7m 6s):
You know, an employee’s interests, aren’t the same as a, as a employer’s interests, they perspective company to be acquired their interests. Aren’t the same as a potential purchaser of the business. People have different interests and it’s helpful to just recognize that and protect yourself because the cost of protection upfront is very, very small compared to, you know, getting involved in some business dispute, business disputes and Toria squeak, lengthy expensive.

Mark (7m 53s):
And so, you know, just don’t lose your optimism makes entrepreneurs so successful. It makes, makes it so enjoyable to work with them. But just take a step back and see have your advisor. Sure. Folks like you, folks like me, your, your CPAs and, and use them efficiently, but effectively to protect, protect your interests.

Jeffrey (8m 30s):
I think in general, before we go, the, the rule of thumb is don’t sign anything without checking it. If you’re an employee and executive chief executive officer, a senior officer or a corporation doing a deal, you just, you know, people always say, well, we have these simple things you need to sign. Please take a look at, as soon as I hear simple, I’m thinking, wait a second. Is it really that simple? You know, it’s always, if it’s too good to true, it’s usually too good to be true. And I think you’re right, mark. You’ve always been cautious. And I’ve always said that you’re, you’re a very effective person because you are cautious and a warrior. If somebody is looking for you and wants to know more about these agreements, how would they find you mark

Mark (9m 11s):
The Ridge that M Ferman F U R M a or my direct line is 6 1 7 2 1 8 2 0 2 5.

Jeffrey (9m 26s):
And remind everybody on Radio Entrepreneurs every week we have Mark Furman featuring entrepreneurship and the law, you know, it’s very important. Thank you very much. And we’ll be coming back with more stories on Radio Entrepreneurs.

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