Business Risk Management Checklist

Transcription

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2 Serving clients for more than 120 years. Business Risk Management Checklist Table of Contents Introduction A. Corporate Governing Documents and Equity Ownership... 3 B. Government Filings and Permits... 5 C. Intellectual Property... 7 D. Employment and Labor Matters... 9 E. Insurance Matters F. Real Estate G. Record Keeping H. Finance (including equipment leases) I. Operations J. Succession Planning K. Litigation/Disputes Additional Considerations for Medical/Healthcare Providers L. General M. Federal Stark Law and Anti-Kickback Statute Compliance N. HIPAA Compliance O. State Law Compliance Piercing the Corporate Veil Serving clients for more than 120 years. 120 South Riverside Plaza, Suite 1200 Chicago, Illinois Copyright 2014, Arnstein & Lehr LLP, All Rights Reserved

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4 1 Introduction We are consistently working with our business clients to help identify and mitigate the risks that their businesses face. These risks present themselves in all shapes and sizes and can come from both inside and outside of a business. We created this checklist to help businesses identify some of the more common areas of legal risks so that a business can make a decision as to whether and how it wants to address any of those risks. After you have reviewed this checklist, we suggest that you meet with your attorney to discuss your responses and your attorney s observations and recommendations based on your responses. Once a consensus is reached as to those areas of risk that you would like to be addressed, you and your attorney can discuss the appropriate steps to take to mitigate the legal risks presented in those areas. Now for the legal warnings and disclaimers. In order to preserve the confidentiality of your responses, which could otherwise be discoverable by an adverse party in litigation or in a governmental investigation, it is important that you do not disclose your responses to any other person or entity. Distribution within your business or to your family should be limited to those persons who have a legitimate business need to know and review the responses. Your responses should be kept confidential and in a secure location. Please be aware that no review can be expected to identify all legal risks or matters which may require attention. We have limited our checklist to those areas which, in our experience, commonly need to be reviewed and addressed. We are not addressing certain areas which would require an excess amount of time on your part to compile information or documents, including, without limitation, a review of all business contracts and agreements or a review to determine if your business is in compliance with laws such as those relating to tax, zoning, environmental or employment matters. Accordingly, our checklist should not be considered as a full audit of all business issues and the extent of our review and suggestions is limited to those issues which we have become aware of in connection with your responses. We would, of course, be pleased as part of our engagement following this limited review to review any issue or area where you have a concern.

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6 3 A. Corporate Governing Documents and Equity Ownership 1. Does your Company have a Corporate Minute Book? a. Are there up to date signed director/manager minutes/consents in the Minute Book? b. Are there up to date signed shareholder/member minutes/consents in the Minute Book? c. Does the Minute Book contain Articles of Incorporation or Articles of Organization and, if a corporation, By-Laws? d. Does the Minute Book contain copies of the FEIN, S Corporation acceptance, and other federal or state qualifications to do business filings? 2. If a corporation, do the Articles of Incorporation contain limitations of liability for directors? 3. If a corporation, have the By-Laws been reviewed for compliance with current law within the last 3 years? 4. If an LLC, has the Operating Agreement been reviewed for compliance with current law within the last 3 years? 5. Are the stock records up to date? a. Are all original stock certificates accounted for? b. Are all cancelled certificates signed by former stockholders? 6. Are all LLC equity interests in certificate form? If yes: a. Are all original certificates accounted for? b. Are all cancelled certificates signed by former members? 7. Were all sales of securities in compliance with applicable securities laws?

7 4 8. Did the Board of Directors/Managers properly authorize all sales of securities? 9. If necessary, were the existing shareholders/ members offered shares which were sold? 10. Were stock/membership certificates issued to shareholders/members? 11. Did the Company receive full payment for the sale of shares/membership interests? 12. Do the stock/membership certificates have appropriate legends? 13. Do you have any Ownership/Buy-Sell/Shareholder Agreements? If so, does it have appropriate provisions for: a. Valuation methodology of owner s interests in the event of sale, death or disability. b. Payment terms for payment of owner s interests in the event of sale, death or disability. c. Circumstances under which an owner can be required to sell his/her interest in the Company. d. What constitutes deadlock among owners. e. What happens when there is a deadlock among owners? 14. Has the Company entered into any security agreements or guarantees? Have the shareholders/members guaranteed any Company liabilities? 15. Does the Company have annual audits/reviews performed by an accountant/outside auditor?

8 5 B. Government Filings and Permits 1. Does the Company have offices, employees, inventory or other assets in other states? 2. Are there sales to Customers in Minnesota or New Jersey which may require an annual business activity filing? 3. Is the Company in good standing in the state of organization? 4. Is the Company in good standing in those states where it is qualified to do business? 5. Does the Company have the required City/County registrations or business licensing? 6. If foreign ownership (shareholders who are not US citizens), has the Company filed for foreign ownership with US Department of Commerce? 7. Has the Company filed all required annual reports in the state of Organization and where qualified to do business? 8. If the Company uses any assumed names, have assumed name certificates been filed in all applicable jurisdictions? 9. If the Company is a secured party or a lessor, has it filed UCC statements which remain in effect and have not expired?

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10 7 C. Intellectual Property 1. Does the Company have any trademarks? a. Have trademark registrations been filed? b. Have periodic update filings been made to continue the effectiveness of trademarks? c. Are appropriate TM, SM or symbols being used on all materials in a consistent manner? 2. Does the Company have any copyrights? a. Have copyright registrations been filed? b. Is the proper copyright notice being inserted on all copyrightable materials? 3. Does the Company have any patents? a. Have patent registrations been filed? 4. Does the Company have any trade secrets? a. Is that information commonly known in the industry? b. Does the Company receive economic value from that information? 5. Does the Company have any intellectual property/ trade secret/confidential information that should be protected? If yes: a. Is access to such information limited to those who need access? b. Is such information kept in a secure manner/ location? c. Does the Company have written procedures to protect such information? d. Does the Company have in place procedures to protect its trade secrets?

11 8 6. Does the Company require employees to sign Invention Ownership Agreements? a. Have Illinois employees received the written notice regarding Company invention ownership rights as required by the Illinois Employee Patent Act? 7. Does the Company require employees to sign Confidentiality/Non-Use Agreements? a. Are prospective vendors required to sign Confidentiality/Non-Use Agreements before being provided access to confidential information? b. Have independent contractors and vendors signed appropriate Confidentiality/Non-Use/ Invention Ownership rights agreements? 8. Does the Company have a procedure to avoid infringing on other s intellectual property? 9. Does the Company have a program to identify third parties who are infringing on the Company s intellectual property rights (including setting up confusingly similar website addresses?) 10. Does the Company have appropriate licenses for all third party intellectual property used by the Company (particularly, all computer software)? a. Is the Company in compliance with all licenses?

12 9 D. Employment and Labor Matters 1. Does the Company have an Employee Handbook? a. If yes, has it been reviewed and updated within the last year? 2. Is the Company obtaining all required employee employment documentation (e.g. W-2, I-9)? 3. Is the Company complying with all employment related requirements such as wage and hour compliance? 4. Does the Company retain any independent contractors and is the Company confident that independent contractor status is defendable? 5. Is the Company complying with all union agreements? a. Is the Company a party to any multi-employer pension plans (union s welfare plans)? 6. If yes, is the Plan is underfunded and is the Company aware of its potential exposure if the Company had a partial (such as due to a reduction of union employees) or complete withdrawal from such plan? 7. Are employees being properly classified as exempt vs. non-exempt? 8. Does the Company have any employees in other states? 9. Does the Company have appropriate employment/labor policies for: a. Record retention? b. Employment interview practices and employment applications? c. Complaint reporting (e.g. sexual harassment, discrimination)?

13 10 d. Hiring/disciplining/firing? e. FLMA compliance? f. Does the Company have a published at will employment policy? g. Does the Company require any background/drug use screening? h. Does the Company have on-going drug testing or screening programs? If so, does it obtain sufficient consent forms? i. Does the Company have sufficient procedures/ records to defend a wrongful discharge or discrimination allegation? j. Is the Company aware of the consequences of a reduction in force (both under federal and state law and under the multi-employer pension plan)? k. Do all employees know the Company s policy regarding and internet use? l. Employee departures (exit interview, letter reminding employee of post-closing termination obligation such as confidentiality, non-solicitation, etc )? 10. Does the Company have the following: a. Non-Competition Agreements? b. Non-Solicitation Agreements? c. Severance Agreements? 11. Does the Company use employment applications? a. If so, has the employment application form been reviewed by an attorney within the last year? 12. Is the Company involved in internet sales? 13. Does the Company have a progressive discipline policy?

14 11 E. Insurance Matters 1. Does the Company meet with its insurance agent at least once a year to review coverage? 2. Does the Company need any of the following insurance policies (and if so, does it have policies): a. Property damage insurance? b. Intellectual property infringement insurance? c. Liability insurance? d. Workers compensation insurance? e. Vehicle insurance? f. Employment practices liability insurance? g. Key man insurance? h. Crime and embezzlement insurance? i. Health/medical insurance? j. Life Insurance? k. Errors and omissions insurance? l. Products liability insurance? m. Business interruption insurance? n. Director and officer liability insurance? o. Glass insurance? 3. Are all who believe they are covered by insurance meeting all requirements for the coverage such as minimum number of hours worked (particularly with respect to health and medical insurance)?

15 12 4. Are all COBRA notices being sent? 5. Are there third parties who should obtain insurance covering the Company (e.g., lessees)? a. If so, has the Company received annual insurance certificates and verified continued insurance? 6. Do you have adequate personal insurance to protect against creditors who might seek to attach your Company interest?

16 13 F. Real Estate 1. Are there written leases? 2. If rights to extend the term of the lease, is the Company familiar with the timing and manner to extend the term? 3. Has the Company considered appealing its property tax assessment? 4. Is the Company aware who has the responsibility of repair and upkeep of real estate/equipment? 5. If the Company is a landlord, does it have a security deposit and adequate insurance? 6. Have all real estate taxes been paid? 7. If there are leases with affiliated entities, are the financial terms appropriate?

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18 15 G. Record Keeping 1. Does the Company have a document retention policy? If so, is it followed? 2. Does the Company have an off-site record keeping location? 3. Does the Company have a checklist for all necessary periodic tax, labor, filings?

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20 17 H. Finance (including equipment leases) 1. Is the Company familiar with all financial covenants (both affirmative and negative covenants in loan and lease agreements)? 2. Does the Company know what its loan/lease covenants and obligations are? a. If so, is the Company in compliance with all loan/lease covenants and obligations? 3. Does the Company have ample time to secure alternative financing if issues with current lender? 4. Has the Company focused on key loan/ lease provisions such as (i) right to make distributions/dividends (minimum to cover S Corp taxes), (ii) financial covenants, and (iii) early payment premiums? 5. Are all relevant employees aware of restrictions contained in loan/lease agreements? 6. Are personal loans from you or other s to the Company properly documented? Is your loan secured to attempt to provide you with a priority position compared to general creditors? a. Do the bank loan documents permit the Company to make interest or principal payments? b. Are owners loans secured to attempt to provide you with a priority position compared to general creditors?

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22 19 I. Operations 1. Are all of the Company s important contracts in writing? 2. Are there provisions in the Company contracts which limit the Company s liability? 3. Do the Company contracts with its customers contain force majeure provisions which limit the Company s liability if it cannot perform due to some cause outside of its control? 4. Has the Company reviewed its dealership agreements for termination rights? 5. Is the Company familiar with dealership termination laws in those states where dealers exist? 6. Have the dealer and sales representative agreements been reviewed recently (e.g., limited license of Company intellectual property, nonsolicitation of key customers and suppliers, confidentiality/non-use restrictions)? 7. Have the key supplier contracts been recently reviewed? 8. Does the Company have contingency plans if a key vendor ceases to do business with the Company? 9. Does the Company track A/R and have a plan when a customer s A/R reaches a specified level (such as referring the account to collection agency or collection counsel).

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24 21 J. Succession Planning 1. Do you have a current estate plan? a. If so, has your estate plan been reviewed in the prior 2 years (or earlier if you have changed state of residence or if your family or financial circumstances have materially changed)? 2. Do you have a succession plan or exit plan in place for the Company? Is your family aware of this plan? 3. Does the Company have a contingency plan if a key employee or you unexpectedly ceases to work or quits? 4. Do your and your spouse s estate plan take into account the future of the Company? 5. Do you and your spouse have your Company stock/equity ownership in a revocable trust to permit an easier transition in the event of your death or disability? 6. Does your family have a plan for the Company in the event you are unable to continue to operate the Business (short term and long term)? 7. Has your Company been valued recently? 8. Have you considered the estate tax consequences of you and your spouse dying within a short period of each other? 9. Are all shareholders aware of your estate plans?

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26 23 K. Litigation/Disputes 1. Is the Company involved in any litigation? 2. Is the Company involved in any governmental enforcement proceedings or investigations? 3. Are any officers or shareholders of the Company involved in any litigation? 4. Is the Company involved in any disputes with employees, shareholders, suppliers, vendors, etc.?

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28 25 Additional Considerations for Medical/Healthcare Providers L. General Is the practice properly incorporated under the Medical Corporation Act or the Professional Service Corporation Act or properly organized as a professional limited liability company? Does the purpose clause in the Articles of Incorporation (if Corporation) or Articles of Organization (if LLC) reflect the professional nature of the entity? Do the Bylaws (if Corporation) or the operating agreement (if LLC) properly set forth the qualifications of permitted shareholders/directors and disqualification? Do the Articles of Incorporation (if Corporation) or Articles of Organization (if LLC) list each office address at which professional services will be rendered? Is the practice duly registered with the Illinois Department of Financial and Professional Regulation? Is each office address at which professional services are rendered registered with the Illinois Department of Financial and Professional Regulation? Must the practice adopt an assumed name? If required, has the assumed name/fictitious Name Affidavit been filed with the Recorder (if for a Medical Corporation) or with the County Clerk (if for a Professional Service Corporation) in the County in which the principal office is located?

29 26 Are the proper levels of supervision for physician assistants, advanced practical nurses and other nonphysician professional staff being implemented and followed? Do employment and independent contractor agreements clearly address which party is responsible for payment of tail insurance coverage upon termination? Do employment and independent contractor agreements clearly set forth covenants not to compete, non-solicitation covenants and confidentiality covenants?

30 27 M. Federal Stark Law and Anti-Kickback Statute Compliance Has the structure of the practice or any joint ventures or arrangements with the practice been reviewed to ensure compliance? Have the ownership and investment interests between the physicians and the entity (including group practices, hospitals and other services) been reviewed to ensure compliance? Have the compensation arrangements of the practice (such as employment agreements, independent contractor agreements, real estate rental agreements and physician recruitment agreements, among others) been reviewed to ensure compliance?

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32 29 N. HIPAA Compliance Does the practice and its employees know the permitted, authorized and restricted uses and disclosures of Personal Health Information ( PHI )? Does the practice know who are its Business Associates? Are written, compliant, Business Associate Agreements in place? Has the Notice of Privacy Practices been distributed to patients? Are the proper patient consents and authorizations in place? Has the practice s workforce been trained in patient information privacy matters? Does the practice s workforce understand a patient s rights to access and amend his or her PHI? Are standards established for the protection of electronic PHI? Does the practice know how to respond in the event the privacy and confidentiality of unsecured PHI has been breached? Have the appropriate administrative, technical and physical safeguards been put into place to prevent the intentional or unintentional use or disclosure of PHI and electronic PHI?

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34 31 O. State Law Compliance Have the ownership/investment and compensation arrangements been reviewed to determine whether they are compliant with State self-referral laws, confidentiality laws, prohibitions against fee-splitting and restrictions on the corporate practice of medicine?

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36 33 PIERCING THE CORPORATE VEIL Finally, you should be aware that certain practices can assist a creditor of the Company to disregard the Company and to sue you personally for what otherwise are corporate debts. This is called piercing the corporate veil. Please discuss with us if any of the following are applicable (please do not respond in writing to the following): 1. Has the Company commingled its funds with those of other companies or shareholders or officers or visa versa? 2. Are all loans (other than customary employee advances), evidenced by promissory notes and approved by director authorizations? 3. Are any Company assets being used for the personal purposes of an owner, officer, director or employee? 4. Are the officers or directors personally taking advantage of corporate opportunities which could otherwise benefit the Company? 5. Are all corporate formalities being followed including listing the Company s full corporate name and officers signing contracts using officer designations such as Mr. XXXXX, President? 6. Are all dealings between the Company and its directors/ shareholders/officers on an arm-length basis and fair to the Company? 7. Are all companies reasonably capitalized?

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