Howard's Herald

Starting a new push to "KISS" Organization

I am in the process of reorganizing my business and myself. Just total information overload and I am having difficulty keeping on top of everything. I am moving a little, back to the future and trying to simplify the organization of all the little bits of information that flash by so I can keep track of what is most important to me.  I have been considering reorganization before I started reading Doug Merrill's book, Getting Organized in the Google Era, which has helped me focus my thoughts on the issue.  I highly recommend the book.  I will be spending some time in this blog discussing issues of organization, trust and my entry and involvement in multi-level marketing.

Commercial Real Estate Radio Discusses Selected Commercial Lease Clauses

On the February 16th show of Commercial Real Estate Radio, .Important Commercial Lease Clauses - Part 1 2/16/2011 - Howard Kline | Internet Radio | Blog Talk Radio., Dan Shasteen and I will focus on specific lease clauses typically contained in commercial leases but that landlords and tenants pay little attention to. These provisions often are considered form but may have significant impact on the rights and obligations of both tenants and landlords. Some of the provisions that we will be discussing include:

• Limitations on use;
• Assignment & Sublease;
• Landlord's default and repair obligations; and 
• Estoppel Certificates

We may be discussing additional provisions depending upon the available time. 

This will be a the first in a series of shows in which we will break down and discuss individual provisions of commercial leases. 

Dan has practiced law for over twenty years in California and Hawaii and is currently licensed to practice in both states. He specializes in corporate and real estate law. Born and raised in Honolulu, Hawaii, he graduated Magna Cum Laude from the University of Washington in Seattle, Washington with distinction in Economics. He obtained his law degree with Honors from Duke University in Durham, North Carolina. Mr. Shasteen has extensive experience in drafting and negotiating retail, commercial and office leases. He has formed over 200 corporations and limited liability companies and has represented Fortune 500 companies in acquiring real estate and other corporations. He lives in Laguna Niguel, California with his wife and three children, two of which are attending college. Dan is former corporate counsel for MONY Life Insurance, Real Estate Division.

The show airs at 12:00 noon, Pacific Time and can be listened to at www.blogtalkradio.com/hfklaw or you can dial in and listen on your phone or participate in the conversation or by calling (619) 393-6492.

 

Regional Adjustment on Mortage Interest Deduction

I am glad someone else thought about this.  The president seems to think that anyone who earns more than $250,000 a year is rich.  And I will admit that if you earn that amount, you should be doing really well, just about anywhere.  And while I am not thrilled about paying more taxes, I recognize the need to do so, so long as our government starts cutting wasteful spending to help balance he federal and state budgets.  With that being said, $250,000 doesn't really get you what it used to and in certain geographic regions of the county with very high costs of living, earning that much money makes you nothing more then a middle class working stiff, trying to get by from day to day.

As part of the president's economic recovery plan, the president and congress are proposing to cut ore reduce the home mortgage interest deduction on taxes for anyone earning over $250,000.00.  I probably shouldn't suggest that this should even be considered, but if it is, I recommend that congress consider adjusting the tide line so as not to penalize those living in high real estate or cost of living areas.  In places like New York, California, Florida, etc., the cost of living and real estate is "still," so high that setting an across the board income limit would unfairly tax citizens of certain regions of the country more than others and further depress the housing markets in those areas.  Congress needs to consider that the same home that might cost $90,000 in Detroit, might cost $450,000 in Southern California and the home buyer in Southern California would necessarily need to earn more money to afford the $450,000 home in California.

The proposal feels more like we are trying to bring people down to the level of other people rather than helping people up to newer and better lives.

Taking Exception to Michael Josephson

I really like listening to Michael Josephson's comments on Character Counts on KNX Radio in Los Angeles.  He really tells the truth and goes to the heart of ethical decision making.  With that being said, after all of those years of listening, I have finally heard a commentary that I do not fully agree with.

Mr. Josephson, in his latest commentary, Ethics Codes Don't Make People Ethical 609.3, hits the single point that we shouldn't expect people to suddenly become ethical upon writing a code of ethics.  It's not so much that I disagree with that point, but his commentary is incomplete or perhaps better said, the commentary is too narrow and misses the broader point.

The broader point is the positive effect a code of ethics has on corporate culture when implmented along with other tools to help foster ethical decision making and conduct.  A code of conduct by itself will have very little effect upon people's ethical or non-ethical conduct.  It's the implementation of hte code that is the key. A code is merely one tool in an ethical arsenal, when used in conjuntion with continuing education, the rewarding of ethical conduct and other similar actions, helps people to make the right choices.  It's a little like "TOM," in sales, Top of Mind.  It's easier to make ethically correct decisions when you are more cognizant of your ethical obligations. When the corporate culture doesn't mention or stress ethical conduct, ethical behaviour fades to the recesses of your mind and it is easier for people to make the wrong decision and succumb to the musings of the devil on their shoulder rather than the angel.

None of us are above temptation and I for one, do not mind a helpful reminder when faced with, what seems to be, irrisistable temptation, to make the wrong decision.  We are all human are need to recognize that fact. 

I don't mind the help and reminder to make the right decision, even when I have the most powerful reminder available; my children.  It is not unusual, when I am faced with temptation that I mught succumb to, for me to think of how I might explain my wrong decision to my children. 

 

Why I Lost my Hair

I usually do not send out jokes or re-publish them.  However, I just received the following letter from my sister-in-law and I had to share it.

 A Mother passing by her son's bedroom was astonished to see that his bed was nicely made and everything was picked up.

Then she saw an envelope that was addressed to 'Mom'. With the worst premonition she opened the envelope with trembling hands and read the letter.

Dear Mom:

It is with great regret and sorrow that I'm writing you. I had to elope with my new girlfriend because I wanted to avoid a scene with Dad and you. I have been finding real passion with Stacy and she is so nice. But I knew you would not approve of her because of all her piercings, tattoos, tight motorcycle clothes and the fact that she is much older than I am. But it's not only the passion...  Mom she's pregnant. Stacy said that we will be very happy. She owns a trailer in the woods and has a stack of firewood for the whole winter. We share a dream of having many more children.

Stacy has opened my eyes to the fact that marijuana doesn't really hurt anyone.  We'll be growing it for ourselves and trading it with the other people that live nearby for cocaine and ecstasy. In the meantime we will pray that science will find a cure for AIDS so Stacy can get better.  She deserves it. Don't worry Mom. I'm 15 and I know how to take care of myself. Someday I'm sure that we will be back to visit so that you can get to know your grandchildren.

Love,
 Your Son Paul
 
 P.S. Mom, none of the above is true. I'm over at Dustin's house. I just wanted to remind you that there are worse things in life than the report card that's in my center desk drawer.
 
 I love you.

Call me when it's safe to come home.

Social Networking Sites - Linkedin - My experience, Part 1

In early 2008, I started accepting work for my law practice from former clients who needed legal work representing commercial landlords.  I wasn't sure that I wanted to establish my law practice again after spending the last 8 years or so, primarily serving as in-house counsel and a few years doing residential and commercial brokerage.  As the year progressed and the economy did not, I began to enjoy doing the legal work that I had been doing for the better part of the last 32 years.  I remembered that I was pretty good at it and liked the connection to my clients.  I also liked making money, which was not a promising concept trying to be a real estate agent.  By December of last year, I realized that, not only was it economically practical to re-establish my law practice, but I wanted to.  At about that time I started coming up with ways to market by practice and started considering social networking sites, which I had very little experience with.

Like most people who use email, I had received invitations from acquaintances, to join Linkedin and heard that it was more of a business social networking site.  But I wasn't getting it. I thought, OK, now that I have received an invitation and joined, now what?  I had no clue what to do with it or how to turn it to my advantage.  So I sat down and started learning in December.  I made some good moves and some mistakes and I am sure that I still haven't gotten it right.  However, I believe that I am on the right track and this posting as well as later planned postings are intended to chronicle my social networking journey.  This journey, by the way has been both business/professional with a fun social twist, which is Ok.

The first place I started was Linkedin.  It is important to understand that I didn't start out all at once.  I signed up and started filling in my profile.  I wasn't sure how much information to put in and what effect certain information would have on my use of Linkedin.  Over the next few days and as I added more detail to my profile, I realized that the more information that I put in, the more doors opened for me to connect to people that I knew but had lost touch with. 

Put as much information into your profile that you can.  List every job and company that you worked for, no mater how long ago.  Include every organization that you have participated in and every school you attended.  Linkedin will identify the companies, organizations and schools and find other people in Linkedin who worked for or with the same companies, organizations and schools.  This will give you a large group of people to search through and identify.  Remember this is only a start.  In one instance, I conncected with someone that I graduated college with, some 36 years ago, whose name I recognized but didn't remember much else.  We reconnected and have had a continuing diologue since.

My next post will go through searching for people that I remembered and in my databases.

LA Times Cuts Local News

Shocking news; The LA Times is no longer going to publish local news.  Even this bit of news is not going to be published. I think that we are witnessing the death of a newspaper.  We will be able to get our local news through other sources and some of the more local papers may even benefit, such as the Orange County Register, which isn't particularly strong on State, National and International News.  Of course, we can also get our news from television and the internet, but this seems sad, nevertheless.  I am not sure that I am interested in the LA Times any longer.  Without local news, I might as well get the New York Times on Sunday.

As reported by Reuters Rambus Stock Plunges , Rambus 
stock plunges after a U.S. District Court ruled that 
it may not enforce patents against Micron (MU.N). 
Referring to Rambus destroying documents that 
would've been material to Micron, the court said 
Rambus impugned the "very integrity of the litigation 
process." The stock tumbled 41 percent to $11.03 
while Micron shares were down 3.5 percent to $3.29. 
From a legal perspective and as former in-house 
counsel, this is a very important matter. Corporate 
systems and procedures must be set up and enforced 
to preserve and protect data and documentation over
a reasonable period of time. The failure to do so 
will effect the ability of companies to enforce 
their legal rights

Email Rule No. 1

Never write anything in an email that you wouldn't want a judge or jury to read.

Small Business Sox 404 Waiver, Still in Play?

On April 4th, I discussed Chairman Cox's position that the SEC should not completely waive SOX 404 compliance for smaller businesses, notwithstanding the recommendation of the most recent recommendations of the SEC Small Business Advisory Committee on Smaller Public Companies. Yesterday, Broc Romanek discussed, the Advisory Committee's current position in light of statements made by Chairman Cox.  In Broc's April 17th, posting he reports that "some," commissioners.  According to Broc and The Financial Executives Blog, the Advisory Committee continues to "support a small business exemption from Section 404 reporting for microcaps and smallcaps "unless and until" appropriate guidance for small companies' management assessments and auditors' attestations on internal control are developed." Of particular note in the amended version of the Advisory Committee's report was their emphasis on the fact that their recommended exemption does not apply to the requirements to maintain internal controls as required by the Foreign Corrupt Practices Act, ("FCPA").  This should serve as an important reminder that if a corporation is doing business overseas, it must comply with the FCPA and the internal control requirements of the FCPA, even if it is a small public company or even if it is a private company.

CEO Compliance Record Keeping

Last October while attending two conferences in Washington, D.C., the issue of "note taking," by corporate directors and officers came up quite often.  The issue first caused a stir when, while speaking during a Sarbanes-Oxley, Section 404 program that I chaired for the ACC (Association of Corporate Counsel), I recommended that in-house counsel should help their CEO keep notes/minutes of the CEO's activities evidencing the facts supporting his/her certifications as required by the SEC and the Sarbanes-Oxley Act (“SOX”).  You would have thought that I was a heretic making such a recommendation to other attorneys.  Later that week, I almost got lynched when I questioned the recommendation of another, better known lawyer, speaking at the NACD (National Association of Corporate Directors) annual conference.  He "strongly," recommended that corporate directors should not keep or maintain any notes of their meetings with other directors. If that wasn’t enough, he was later misquoted by another speaker, who suggested that corporate directors should never take any notes. In this and later postings, I will explain my position on these issues.  In this post, I will limit myself to record keeping of the CEO for the limited issue of proving the accuracy of the CEO’s annual and quarterly report certifications.

Why should the CEO keep notes and why do I recommend that in-house counsel assist the CEO.

The SEC and SOX require the CEO and CFO of a public company to certify and make certain representations in the company’s annual and quarterly reports. In very brief summary and among other things, the CEO and CFO must represent, in writing that they have reviewed the report that based upon the signing officer’s knowledge, there is no material or misleading statements in the report, that the report fairly represents the financial condition and results of the company, and that the CEO and CFO are responsible for the disclosure controls and internal controls over the financial reporting.  Failure to insure the accuracy of these representations could subject the CEO and/or CFO to civil and/or criminal penalties.

As I understand it, the purpose of these certifications is to outlaw rubber stamping by the CEO and CFO of these critical financial reports that investors often rely upon in which to make their investing decisions. As a result of these certification requirements, the CEO and CFO must take full and personal responsibility for not only the content of the reports but the process instituted by the company to insure that the information contained in the reports are accurate.

The certifications are not a guarantee that the reports are accurate.  However, if the representations are inaccurate and the CEO and CFO have made a real and effective effort to insure the accuracy of their representations, they will certainly minimize and possibility of liability, if and when the inaccuracies are discovered.  As stated by former SEC Chairman Donaldson, what is expected is more than the bare minimum.  The CEO cannot simply rely upon the representations of his/her subordinates that adequate internal controls have been put in place.  Similarly, the CEO cannot represent that there are no inaccurate or misleading statements in the reports is he/she has no knowledge or reasonable belief of such.

I do not believe that any reasonable person really expects perfection, although it should be strived for and can be hoped for. To be certain, no mater how diligent the CEO and CFO are, a mistake is going to happen.  Sometimes the mistake may not even be discovered for years after the report is filed.

What then becomes important, from an in-house perspective, is not only full and complete legal compliance, but the ability to prove it.  My experience has been that the CFO, by the very nature of their practice and experience, is a detailed record keeper.  However, my experience with the CEO, particularly creative and entrepreneurial types, is that they are poor record keepers, opting for action rather than records.  It is here that the company and the CEO need the help of in-house counsel, among others. When something goes awry, because of some error in the reports or failure of the system, it becomes extremely helpful, if not crucial, if there are records of the meetings that the CEO attended, notes or other records of the questions asked and answered at the meetings or instructions given, etc.  This is not the time to minimize the record.

With all that being said, it is important that the notes and records do not contain superfluous material and/or information.  They should contain a record of what the CEO did to insure compliance with the law and the accuracy of his/her representations, only.  The CEO should have the assistance of someone, if not in-house counsel, who is aware of the information necessary to be contained in the notes/minutes and who is able to concisely report only that information that is appropriate to reflect the CEO’s efforts.