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Business Lawyer – Formations, Business Transactions and Business Litigation

Business Formations and Transactions

Mark Cohen is a full-service Boulder business and commercial lawyer, and litigator.  When a client seeks guidance concerning formation or acquisition of a business, a business lawyer’s first task is to understand the client’s business, and short-term and long-term goals. With this information and specialized knowledge of the various types of ownership, Mark then advises the client on what type of entity to form — a “C” corporation, an “S” corporation, a limited liability company (LLC), a limited partnership, a limited liability partnership, or some other entity.

Once the client determines the form in which it will do business, Mark will identify and draft or review the appropriate documents. But his role does not end there.  Mark helps his business clients with the many business law issues that arise when any new business opens its doors.  Especially important for a newly established LLC, Mark offers ongoing support so the business will not inadvertently lose the limited liability status.

Mark’s considerable experience supports his belief that all legal documents should be clear, concise, and to the extent possible written in plain English, rather than “Legalese”.
Read: Plain English – The Basics.  He has extensive experience drafting and reviewing:

  • Articles of Incorporation
  • Articles of Organization for an LLC
  • Asset Purchase Agreements
  • Buy-Sell Agreements
  • Confidentiality Agreements
  • Contracts
  • Corporate Bylaws
  • Commercial Leases
  • Deeds of Trust
  • Distribution Agreements
  • Employment Agreements
  • Employment Policies
  • Equipment Leases
  • Franchise Circulars and Documents
  • Guarantees
  • Intellectual Property Licenses
  • Indemnification Agreements
  • Independent Contractor Agreements
  • Joint Venture Agreements
  • Letters of Intent
  • LLC Operating Agreements
  • Medical Facility Leases
  • Memorandums of Understanding
  • Noncompete Agreements
  • Office Leases
  • Partnership Agreements
  • Promissory Notes
  • Purchase Contracts
  • Purchase Order Terms
  • Releases
  • Sales Representative Agreements
  • Sales Terms & Conditions
  • Security Agreements
  • Sexual Harassment Policies
  • Settlement Agreements
  • Shareholder Agreements
  • Software Licenses
  • Subscription Agreements
  • Supplier Agreements
  • Termination Agreements
  • UCC Documents
  • Warranties
  • Website Terms of Use
  • Workplace Violence Policies
  • Other documents often associated with the formation, acquisition, or operation of a business

His role does not end after a client forms or acquires a business; he seeks to establish long-term relationships with his business clients, including those outside the Boulder/Denver area. He endeavors to actively assist clients in drafting and reviewing legal documents because he knows first-hand that Benjamin Franklin was correct when he wrote, “An ounce of prevention is worth a pound of cure.” 

READ: Ten Things to Consider Before Signing a Contract 

Read Mark’s Satirical Article – How to Draft a Bad Contract, praised by Harvard Professor Steven Pinker as “Simply brilliant.”

Mark advises business clients in these areas:

  • Arbitration, Mediation, and Alternative Dispute Resolution
  • Business Planning
  • Business Law
  • Business Litigation
  • Business Set Up
  • Business Torts
  • Collections
  • Commercial Law
  • Commercial Leasing
  • Commercial Transactions
  • Confidentiality Agreements
  • Consumer Protection Laws / Advertising
  • Contract Law Issues
  • Deceptive Trade Practices
  • Employment Law Issues
  • Fiduciary Duties
  • Incorporation
  • Insurance Needs
  • Internet Law and Website Issues
  • Intellectual Property (Trademarks, Trade Secrets, Copyrights)
  • Liens
  • Real Estate Law and Transactions
  • Real Estate Litigation
  • Regulatory Matters
  • Sales and Use Tax Issues
  • Secured Transactions
  • Shareholder Disputes and Derivative Actions
  • Start Ups
  • Unfair Competition
  • Uniform Commercial Code (UCC) Issues

Business Litigation

Business disputes and business litigation are almost always the result of poor drafting or an incomplete negotiation. Often the lawsuit could have been avoided had the parties realized the importance of proper drafting of the transaction documents.

When business litigation appears possible it is important to consult an experienced trial lawyer right away. Your lawyer can explain the litigation process, assist in obtaining critical evidence, and provide invaluable guidance so that if the dispute ends in litigation your organization is in the best possible position.

A party to a dispute that fails to consult a lawyer until after litigation has begun may find that important deadlines have passed, that critical evidence has been lost or destroyed, that opportunities have been lost, or that the party has inadvertently made damaging admissions. 

As an Air Force Judge Advocate, a civilian prosecutor, and as a lawyer in private practice, Mark has tried more than 100 civil and criminal jury trials and litigated many more, with impressive results. In 2012, Mr. Cohen won a $4.2M award in a case filed on behalf of a Fort Collins software company that included claims for breach of contract and interference with contract; that judgment included nearly two million dollars in punitive damages. (That case was tried to a judge, not a jury).
If you or your company become a party to a lawsuit, Mark will represent you with honesty, professionalism, tenacity, and efficiency, and will teach you how to better protect yourself or your company in the future.   
Read more about his approach to Litigation and Trials.

Litigation is expensive — it consumes financial and emotional resources.  For this reason it should ordinarily be a last resort.  Mark works hard to help his clients achieve effective resolutions.  However, when business litigation is unavoidable, he has the skill and experience to be a highly effective advocate for his clients. Mark’s litigation experience includes:

  • Alternative Dispute Resolution  (arbitration/mediation)
  • Administrative Actions
  • Breach of Contract Litigation
  • Breach of Fiduciary Duty Claims
  • Business Torts
  • Confidentiality Agreements
  • Copyright and Trademark Litigation
  • Collections Law
  • Collections Litigation
  • Commercial Litigation
  • Corporate Litigation
  • Franchise Disputes
  • Fraud Claims
  • Interference with Contract
  • Noncompete Agreements
  • Probate Litigation
  • Property and Lease Disputes
  • Replevin (recovery of property)
  • Serious Injury Cases
  • Shareholder and Derivative Litigation
  • Trademark Litigation
  • Unfair Competition
  • Unjust Enrichment
  • Warranty Litigation

Contracts and Contract Litigation

Mark is a transaction and litigation specialist.  He believes the distinction between transactional and litigation work made at many firms, is often artificial. Contract litigation is almost always the result of poor drafting or an incomplete negotiation.  Usually the problem can be traced to a document that is ambiguous, inconsistent, or that fails to define a term or address an important issue altogether. Often the lawsuit could have been avoided had the parties realized the importance of proper drafting of the transaction documents.

Mark has litigated dozens of these types of cases and is a respected trial lawyer, but he is also an accomplished writer who understands that words matter.  He served six years on the Board of Editors of The Colorado Lawyer  in multiple roles including chairperson, and now serves as the editor for the Contract Law column.  Mark believes in plain English – writing that is clear, concise, and readily understood by the target audience.  As a contract lawyer, he believes the use of plain English in business and law lowers costs, improves productivity, increases credibility, and reduces misunderstandings.

Mark also authored an article on equipment leasing that was the cover story in an issue of Rocky Mountain Construction.  He is an expert on equipment leasing law. 

The goal is to draft concise, well-written documents in order to reduce the risk of subsequent litigation and to  strengthen the client’s position if litigation does arise.  To learn more about Mark’s approach to drafting legal documents and litigating contract disputes, please visit the Contract Law and Litigation page.  To read more about his  approach to litigation and trials in general, please visit the Litigation and Trials page.

As an Air Force Judge Advocate, a civilian prosecutor, and as a lawyer in private practice, Mark has tried more than 100 civil and criminal jury trials and litigated many more, with impressive results. In 2012, Mark won a $4.2M award in a case filed on behalf of a Fort Collins software company that included claims for breach of contract and interference with contract; that judgment included nearly $2M in punitive damages. (That case was tried to a judge, not a jury).
If you or your company become a party to a lawsuit, Mark will represent you with honesty, professionalism, tenacity, and efficiency.  And he will teach you how to better protect yourself or your company in the future. Read more about his approach to Litigation and Trials.

Employer Representation

Most businesses have employees.  Thus, a lawyer advising a business must have a strong knowledge of federal employment law and Colorado employment law. Mark represents employers in a variety of circumstances, developing and reviewing:

  • Personnel Manuals
  • Privacy Policies
  • Internet Use Policies
  • Sexual Harassment Policies
  • Discrimination Policies
  • Employment Agreements
  • Independent Contractor Agreements
  • Non-compete Agreements
  • Non-solicitation Agreements
  • Confidentiality and Non-Disclosure Agreements
  • Compensation Agreements
  • Workplace Violence Policies
  • Severance Agreements & Releases

He advises employers on issues such as the Americans With Disabilities Act (ADA), the Employee Polygraph Protection Act, the Family and Medical Leave Act (FMLA), the Uniformed Services Employment and Reemployment Rights Act (USERRA), wage and hour laws, employee privacy, and unemployment claims.  Additionally, he advises employers on issues such as termination of employment, negligent hiring, supervision, and retention of employees.  He also advises and represents employers, in claims brought by former employees and in contested unemployment hearings.

Additionally, 
Mark Cohen is a member of the Board of Directors of DART, Inc., a nonprofit organization that teaches workplace violence prevention. He is the author of Elements of an Effective Workplace Violence Program, published in the July 2004 issue of The Colorado Lawyer. He has expertise in drafting workplace violence policies and in reviewing existing policies.  Mark also wrote Chapter 20 (workplace violence) of The Practitioner’s Guide to Colorado Employment Law published by CLE in Colorado, Inc.

Franchises and Distributorships

Franchising, as one form of ownership, offers many opportunities for entrepreneurs, but there are no guarantees. The person considering franchising a business or purchasing a franchise must conduct extensive research and engage in serious reflection. 

Franchising law is a complex web of statutes, rules, and common law doctrines.  The franchise lawyer must be thoroughly familiar with the Federal Trade Commission’s rules, but must also know contract law, trademark law, and business law.

For the potential franchisor, proper drafting of the franchise offering documents is critical; failure to comply with legal requirements may subject the franchisor to civil suits and even criminal penalties. For the potential franchisee, about to invest money in a franchise, the franchise agreement may be one of the most important documents he/she will ever sign.

Mark drafts and reviews franchise agreements, franchise disclosure documents (circulars), distributorship agreements, and similar documents.  He advises both franchisors and franchisees and is familiar with the Federal Trade Commission’s Revised Franchise and Business Opportunity Rule.

Medical and Health Care Professionals

Health care professionals choose their careers because they feel a calling.  They want to use their knowledge to help others, and most would prefer not to have to devote much time to the legal aspects of their practices.   Still, the reality is that medicine and mental health services are highly regulated fields, and the complexity of the regulatory environment grows every year.  

Many Colorado health care professionals appreciate having a relationship with a trusted lawyer who can assist with the legal aspects of establishing and maintaining a professional practice.

Mark represents and assists physicians and health care professionals with all legal aspects of their professional practices, including:  

  • Choice of Entity
  • Licensure Requirements
  • Commercial Leases and Lease Negotiations
  • Employment Agreements
  • Insurance Requirements
  • Insurance Disputes
  • Colorado Medical Practice Act
  • Health Care Availability Act
  • Noncompete Agreements
  • Practice Group Contracts
  • Negotiations
  • Confidentiality Agreements
  • Privilege Issues
  • Reporting Requirements
  • Sales of Practices
  • Subpoenas of Records
  • HIPAA Compliance

Many of the legal issues that physicians face also confront other licensed professionals such as mental health professionals, dentists, chiropractors, optometrists, and physical therapists.

Creditors' Rights / Commercial Collection Litigation

The freedom to contract plays a vital role in the American economic system, but for any business few things are more disappointing than providing a great product or service only to have the purchaser or client let you down by failing to pay as agreed.  Mark has broad experience representing a variety of creditors in Colorado courts, with expertise in:

  • Collection Litigation
  • Collections Law
  • Deficiency Lawsuits
  • Replevin Actions
  • Prejudgment Attachment
  • Garnishments
  • Mechanic’s Liens
  • Lien Foreclosures
  • Writs of Execution
  • Consumer Law
  • Post-Judgment Discovery
  • Charging Orders
  • Fair Creditor Reporting Act
  • Fair Debt Collection Practices Act
  • Uniform Commercial Code Remedies
  • Deceptive Trade Practices
  • Corporate Veil Litigation
  • Enforcement of Foreign Judgments
  • Complaints to Avoid Discharge
  • Representation of Creditors in Bankruptcy (including Chapter 7, Chapter 11, Chapter 12, and Chapter 13)
  • Adversary Actions in Bankruptcy
Mark’s experience in this arena is impressive.  While practicing law in Nebraska during the farm crisis of the late 1980’s and early 1990’sMark represented a major credit corporation in collection, replevin, and bankruptcy matters throughout Nebraska.  Today he serves as counsel to a distributorship in Brighton, Colorado, that sells and leases heavy machinery used in commercial construction projects.  He represented  this distributorship in more than 20 district court actions, with an impressive record of collecting the sums owed to the client and defeating claims against the client.
 

Filing suit to collect a debt is not to be taken lightly, and before filing any action Mark strives to make certain clients understand the costs and risks of litigation.  Although he generally represent creditors and debtors on an hourly basis, a hybrid fee arrangement could be considered in some cases.

When representing business clients Mark is committed to educating clients about how to prevent collection disputes from arising in the first place, and learning from them when if or when they do arise.

Success in collection litigation begins with thoughtful drafting of the contract or lease that may one day be “Plaintiff’s Exhibit 1” if it becomes necessary to file suit to collect the debt.

Mark Cohen is the author of Grounds for Disregarding the Corporate Entity and Piercing the Corporate Veil,a 114-page article published in the prestigious Proof of Facts series. (45 POF3d1).

Mr. Cohen (with co-author Sierra Swearingen) recently wrote an article for Causes of Action on what is required to establish liability of a corporate director or officer for the corporation’s wrongful conduct. Mark’s knowledge of this area of the law has helped clients recover money from the directors, officers, and shareholders of judgment proof corporations and limited liability companies.

He represents creditors in contract and warranty litigation throughout Colorado and is fully competent in the area of preparation and foreclosure of mechanic’s liens.  Colorado also has many other statutory liens that may be available to creditors such as liens for common carriers, hospital liens, landlord’s liens, agistor’s liens, storage facility liens, garage liens, and service liens.

Unfortunately, successful collection litigation and obtaining a judgment, does not guarantee speedy receipt of the funds. Mark can assist with post-judgment collection options, including judgment lien foreclosures, garnishments, executions, charging orders, debtor’s examinations and post-judgment discovery, and representing creditors in bankruptcy court.

Mark has extensive experience in collection disputes involving sand and gravel projects, asphalt projects, concrete projects, rock crushing, screening, road base, and other types of aggregate projects.  He is knowledgeable about the Colorado Department of Transportation (CDOT) contracting process and the statutes governing liens on CDOT projects.