Here is what you, as a business owner, should do today:

1. Identify your proprietary information.
2. Educate your employees about trade secrets and the law.
3. Explain to your employees what information in your organization is proprietary and what not to divulge.

Explain to your employees, and back it up in writing, what they need to do to protect the company’s proprietary information, what the company will do to protect it from release, and/or what the company will do if any is released.

A trade secret may be disclosed in confidence to an employee, with the understanding that the employee will not disclose the information. To the extent that the owner of the information obtains a patent on it, it is no longer a trade secret but is protected by patent law.

If a person misappropriates (wrongfully uses) a trade secret, the owner of the information may obtain damages and, where appropriate, injunctive relief. Basically, trade secrets are misappropriated in two ways:

1. an employee wrongfully uses or discloses it or
2. a competitor wrongfully obtains it.

An employee is under duty of loyalty to his/her employer, which includes the nondisclosure of trade secrets to competitors. In addition, it is wrongful for a competitor to obtain vital, secret information from an employee by bribery or other means. The faithless employee also commits a tort by divulging secret trade information.

In the absence of contract restriction, an employee is under no duty, upon termination of his/her employment, to refrain from competing or working for a competitor of his/her former employer, but he/she may not use trade secrets or disclose them to third persons. But the employee is entitled to use skill, knowledge and general information acquired during the employment relationship.

For example, Mr. Gentry has worked for Stevens and Company for 15 years. During that time, Mr. Gentry gained considerable knowledge of a new, proprietary product that the company has been developing. He is not bound by a non-compete agreement. A competitor, sensing that the new product could be a real breakthrough, has offered Mr. Gentry a job at considerably more pay. If Mr. Gentry takes the job, Stevens and Company is entitled to an injunction to prohibit Mr. Gentry and his new employer from using trade secrets developed and owned by Stevens.

Furthermore, it is illegal to obtain another’s trade secrets by any means other than one’s own research or the observation of a legally obtained version of the finished product, unless the owner voluntarily disclosed the information or fails to make reasonable efforts to protect its secrecy.

Title VII of the Civil Rights Act

The most common form of litigation that employers face is employment discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment because of race, color, religion, sex or national origin. Title VII applies to all private-sector employers with 15 or more employees. Smaller employers may be subject to state or local laws. For example, New York state’s Human Rights Law applies to employers of four or more persons.

Until 1991, Title VII, although a significant source of litigation, was of less concern to employers from an exposure standpoint because it permitted neither (1) the right to a jury trial, nor (2) the recovery of punitive damages. But in 1991, Congress amended Title VII to provide both remedies.

Title VII, though most commonly used in the employment termination context, prohibits discrimination in other employment contexts as well, such as hiring (e.g., the interview and selection process), promotion, work environment and retaliation. In the interview process, employers are precluded from asking applicants questions that not only directly request but could indirectly disclose information about an employee’s age, national origin or other protected classification.

The “hostile work environment” context has become the focus of cases involving sexual harassment suits. Such litigation has probably been the leading factor in prompting employers to establish policies against, and procedures for employees to complain about, discrimination. In several recent decisions, the U.S. Supreme Court held that employers might often avoid liability in hostile work environment cases by maintaining policies and complaint procedures and responding promptly to employee complaints.

Thus, it is essential for an employer to develop, implement and enforce a non-discrimination policy and complaint procedure. This type of procedure will not provide a defense in litigation involving “quid pro quo” sexual harassment, that is, an act of sexual harassment committed by a supervisory or managerial employee against a subordinate, combined with a threat of adverse job action or promise of job benefit. But such a policy and procedure will nonetheless encourage employees to initially use internal complaint procedures rather than turning to external judicial or administrative forums in the first instance.

Family and Medical Leave Act (FMLA)

Similarly, maintenance of a policy and procedure is essential for companies with 50 or more employees in ensuring compliance with the Family and Medical Leave Act (FMLA). FMLA provides that eligible employees are entitled to 12 weeks of unpaid leave per year upon the birth or adoption of a child, or the “serious health condition” of an employee or immediate family member. Eligible employees are those who have worked for an employer for at least 12 months, have worked more than 1,250 hours in the prior one-year period, and work at a location where at least 50 employees are employed within 75 miles.

Because FMLA permits leave in intervals of one hour or more, its application and use has become an administrative nightmare for employers, particularly small-business owners, who must accommodate leaves of varying length, often with little or no notice. Moreover, eligible employees, other than “key employees,” are guaranteed return to their former position upon completion of the leave.

FMLA has particularly affected companies with fixed attendance policies, i.e., companies that terminate employment after 15 absences in a calendar year. Because employers often do not initiate the FMLA process for absences of one or two days (nor inquire as to whether an absence is for an FMLA-qualifying reason), care must be taken, in case a termination is triggered by an employee’s absenteeism, that FMLA-qualifying days of absence are not counted. Although employees must notify the employer that an absence is due to an illness of the employee or an immediate family member for the employer’s obligation under FMLA to be triggered, the employee need not use the term “FMLA” in his or her notification. There has been a marked increase in the number of employment terminations challenged under FMLA in 2002. Such suits can be blunted successfully by implementing and following FMLA policy and procedure, part of which requires employees to provide medical certification for their absences.

Fair Labor Standards Act (FLSA)

A third area of increased litigation activity has been overtime wage claims under the Fair Labor Standards Act (FLSA). FLSA does not have a minimum employee requirement, as applies to all employers engaged in commerce. Under FLSA, employees who work more than 40 hours in a week must be paid time and a half their regular hourly rate for all hours worked past 40.

FLSA exempts from the overtime requirement bona fide executive, administrative and professional employees, as well as outside salespersons. A common pitfall in classifying employees as exempt has been a misunderstanding of the significance of the “salary” basis of payment. Although one of the requirements for exempt status is that an employee receives a salary of at least $250 per week, regardless of the number of hours worked, payment of a salary is not sufficient to satisfy the exception. Thus, employers have often classified employees with titles such as assistant manager, administrative assistant or sales manager as exempt, based on receipt of a “salary,” when these employees are not exempt and are entitled to overtime. This potential problem, which often arises in a suit filed after an employee has been terminated from employment, and/or may become the subject to an investigation by the U.S. Department of Labor or a state labor agency, can be avoided by conducting an internal audit of all job titles deemed exempt to ensure that they satisfy the statutory exemption.

Another more recent source of employee claims under FLSA has involved a failure to pay minimum wage in situations where small companies, particularly start-ups in the technology area, have promised employees stock options and bonuses in exchange for an employee’s agreement to work without pay during the start-up period. Because payment of the minimum wage during each payroll period (usually a week) cannot be waived, such arrangements are unlawful, and employees are entitled to payment for the weeks in which no wages were paid, even if the payment of wages was made later and exceeded the minimum wage payment for all previous periods. Unfortunately, FLSA provides for little creativity in methods of payment, and has not been modified to meet current economic conditions and changes. In conclusion, although current federal employment laws do pose a minefield for the unwary employer, consulting with a human resources professional or attorney when designing policies and procedures, combined with an internal audit of current practices, can often prevent exposure to litigation under the Civil Rights Act, FMLA and FLSA.

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Jerry Goldberg, a labor and employment attorney in the New York office of Greenberg Traurig, wrotethe substance of this article. For additional information, call 212-801-9200, email goldbergj@gtlaw.com or visit www.gtlaw.com.

Answer: It depends on whether the counterparty to the contract justifiably relied on the employee having the authority to bind the company to the agreement.

An employee, whether or not he or she is an officer, may commit the company to an obligation if you hold him or her out as authorized to make that type of obligation. For example, a supplier can regard a company purchasing agent as having the authority to place orders. This is referred to as “apparent authority.”

An employee with what is referred to as “apparent authority” may also bind your company. Apparent authority is when the employee carries a title that implies the ability to bind the company, such as manager or vice president. So, irrespective of your internal understanding with that employee, an employee’s title may make you liable for acts he or she takes without your direct or personal authorization.

In addition, the CEO or president of a company is presumed to have authority to enter into most contracts in the ordinary course of business on behalf of the business. It’s called “implied authority,” and an officer or employee in a particular area may have it as well, such as the vice president of marketing or the advertising director.

Since an employee or officer with actual, apparent or implied authority can bind your firm to a contract, you should establish internal controls on contracts above certain dollar amounts. The controls may be in the form of approvals or review by other executives or department heads. Another option is to require two signatures on checks and contracts for large purchases above a certain dollar amount. In addition to educating your staff as to controls in place, you should periodically advise company suppliers in writing of these requirements by including directly on your Purchase Order the approval(s) and/or requirements for valid orders. This can provide meaningful recourse for removing yourself from unauthorized obligations made by employees.

People search the Internet and you want them to find you and your products. Your customers search and you’d like them to find you. But someone has your URL or more particularly, your business or product name in a URL he or she now owns.

What can you do?

First, understand the law. Just because the name of your business or product or service is in someone else’s URL does not necessarily mean that he or she is infringing on your rights. A URL is a location, first and foremost, like a piece of real estate. It is not a product or service (in most cases). What is sold at the URL is the product or service.

If someone had bought apple.com before Apple did, the computer company would not necessarily have had a claim nor would it have been harmed. After all, Apple could always have used applecomputer.com, for example. The way the law has developed, this “case” would pivot on the intent of the party and how the owner put the URL to use.

If the presumptive owner of apple.com had provided goods or services under the name Apple, such as Apple Tree Service or Apple Children’s Clothing, he or she would have been exercising a legitimate right to use the URL for this purpose. The owner would not have been infringing on Apple computers in any way. But if the owner had attempted to use the domain in a manner that simply profited (or attempted to profit) from Apple’s brand, such as by setting up a website that would profit from the traffic that would come from Apple’s brand or marketing efforts, or by buying and holding the valuable URL in hopes of simply selling it to Apple for an inflated price, Apple would have recourse under the law.

If someone owns or is using a URL that contains the name of your business or one of your products or services, there’s a low-cost and efficient means for seeking justice, i.e., gaining ownership of the domain. It’s an alternative to the court system; you can use it against any URL owner anywhere in the world. The total costs should not exceed $2,600 (at the very most), and you don’t have to travel or hire an attorney.

ICANN and UDRP

The Internet Corporation for Assigned Names and Numbers (ICANN) developed the Uniform Domain Name Dispute Resolution Policy (UDRP) for resolution of disputes over registration of Internet domain names. UDRP currently applies to all .biz, .com, .info, .name, .net, and .org domains, and some country code top-level domains.

What you may not be aware of is that when you or ANY person or entity (“registrant”) in the world purchases a domain name, the registrant represents and warrants, among other things, that registering the name “will not infringe upon or otherwise violate the rights of any third party.” The registrant also agrees to participate in an arbitration-like proceeding if any third party asserts such a claim. In such a proceeding, called a UDRP proceeding, the claimant must establish three elements to succeed:

1. The domain name in question is identical or confusingly similar to a trademark or service mark in which the complainant has rights.
2. The registrant does not have any rights or legitimate interests in the domain name.
3. The registrant registered the domain name and is using it in “bad faith.”

The registrant will fail the “legitimate interest” and “bad faith” tests if the primary economic motive was to profit, in some way, from the brand recognition or goodwill of another. More particularly, in a UDRP proceeding, the “judge” (UDRP panel) will consider several non-exclusive factors to assess bad faith, such as:

• Whether the registrant registered the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark.
• Whether the registrant registered the domain name to prevent the owner of the trademark or service mark from using the domain. For more on trademarks and trade names see “Patents, Copyrights, Trademarks and Trade Names” in the September/October 2010 issue of this publication.
• Whether the domain name owner has engaged in a pattern of such conduct.
• Whether the registrant registered the domain name primarily for the purpose of disrupting the business of a competitor, or whether by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website by creating a likelihood of confusion with the complainant’s mark.

If a claimant loses a UDRP proceeding, in many jurisdictions it may still bring a lawsuit against the domain name registrant under local law. If the claimant wins, ICANN simply instructs the defendant’s Internet Domain Registrar to transfer ownership of the subject URL to you. Then you can move it to your registrar if you wish.

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David L. Perkins, Jr. wrote this article. Luna M. Samman provided her expertise. She’s an associate in the Intellectual Property Practice of Dickstein Shapiro LLP and you can reach her at sammanl@dicksteinshapiro.com or at 202-420-4860.

Many court verdicts today pivot on the quality and quantity of electronic evidence: emails, website visits, document downloads and electronic transfers of confidential information. Just as the scent of a fox weakens over time for bloodhounds of the four-legged type, digital trails disappear over time for bloodhounds of the binary type.

We live in the information age. We work in a service economy. For most companies today, intellectual assets make up a significant portion of the asset base.

• Customer and prospect databases
• Pricing models and estimation programs
• Drawings and designs
• Proprietary processes and formulas

They can take years and big dollars to develop but can be transferred to competing hands in a matter of seconds.

Dr. Gavin Manes, digital forensics expert and CEO of Avansic, says employee theft of confidential data is shockingly common. “Electronic data [are] difficult to protect because virtually every employee uses a computer, has ready access to confidential data, and has multiple options for transferring and/or making a copy of proprietary data,” he explains. “But there are some basic things employers can do to reduce the risk of breach.” Particularly:

1. Have every employee acknowledge in writing that:
   • Certain intellectual assets are proprietary and confidential, and are the sole and exclusive property of the business, though the employee may use — and even modify, improve or develop — such from time to time.
   • None of the company’s intellectual property may be copied, transferred or used in any way or for any reason, except as directed by the company in the service of company objectives.
   • Departing employees shall not retain any copies of any of the company’s data or electronic assets of any type, in any form or format, without the prior written consent of the company.
   • Employees who violate any of these policies can expect the company to defend and protect itself to the fullest extent of the law.
   • All data on company computers used by the employee are and shall be the exclusive property of the employer.
2. Do not let employees use their own computer(s) for work purposes. They should be issued or assigned a company computer.
3. Issue company cell phones and company-owned cell numbers to employees who have regular contact with customers and prospects so that when they leave the company, they won’t retain the contact information on the phones.
4. If you suspect a breach, immediately collect and secure the digital evidence. Doing so will require an expert in digital forensics.
5. If a theft occurs, don’t be afraid to exercise your legal obligations to the fullest extent necessary to protect yourself.

Yes, the risk is real. Yes, your employees will agree to confidentiality and non-disclosure agreement provisions like this. Resistance by one might be your first sign of a problem.

Where can you find help drafting such an agreement? Find an expert in digital forensics. Talk to your legal counsel, get a referral from your accountant or trade association, or contact Avansic (avansic.com), experts in e-discovery and digital forensics.

The result: less research and development and fewer new inventions, ideas and products. Intellectual-property laws also protect consumers from confusion, deception and harm.

Patents:

A patent is a grant by the federal government of a monopoly right to an inventor to make, use or sell an invention to the absolute exclusion of others for the period of the patent, currently 17 years from the date of approval or 20 years from the date of filing, whichever is longer. The owner of the patent also may profit by licensing to others a right to use the patent. Once the original patent term expires, it may not be renewed, the invention enters the “public domain,” and anyone then can use it.

The Patent Act specifies the types of inventions that may be patented: any new and useful process, machine, manufacture or composition of matter or any new and useful improvement thereof. To be patentable, it must be novel, have utility and not be obvious. Naturally occurring substances or “discoveries” are not patentable because the invention must be made or modified by humans.

Copyrights:

A copyright is a form of protection provided by federal law that protects an original expression of an idea. It extends to authors of original works such as literary works, musical works, dramatic works, pictures, graphic and sculptural works, motion pictures and sound recordings. Applications for copyright are filed with the Register of Copyrights, Copyright Office, Library of Congress. A copyright is actually a bundle of separable rights, including the rights to reproduce, distribute, adapt, perform or display a work. For example, an artist who sells a painting might give up the right to display that work, but none of his other rights. The owner of the painting does not automatically buy the remaining bundle of rights when he or she purchases the painting. The owner of the copyright has the exclusive right to use or reproduce the work or license such rights to others. The doctrine of “fair use” allows for limited use of any copyright in ways that facilitate criticism, comment, news reporting, teaching, scholarship, or research, but this is a very limited exception and often fails as a defense to copyright infringement.

Registration is not required for protection because copyright law protection begins as soon as the work is fixed in a tangible medium. There is no truth to the myth that you must send yourself a sealed envelope by registered mail to get a “do it yourself” copyright. Copyright registration is advisable, because it expands the remedies for infringement. Regardless of whether a federal registration is obtained, it is wise (though not required) to place a notice of copyright on all publicly distributed copies so as to give reasonable notice of the claim of copyright. A copyright notice typically consists of an encircled C, the author’s name and the year the work was created, e.g., © The Business Owner, 2003

The copyright law has been revised several times, resulting in different life spans of a work depending on when it was created and which law applies to it. Recently the Supreme Court upheld extension of copyright terms, meaning that many works from as far back as 1928 are still protected by copyright. It is wise to contact an intellectual-property attorney before making use of artwork or literature, since it is not easy to determine what’s in the public domain.

Trademarks:

A trademark is any word, symbol or device (even colors or smells) that identifies and distinguishes the source of a product or service. There are four types of marks: trademarks (used to identify goods, like cookies or clothing), service marks (used to identify services, like an insurance agency or car repair center), certification marks (indicating compliance with certain standards, like the Good Housekeeping seal of approval) and collective marks, which indicate membership in an organization, like The Boy Scouts of America. The federal government protects organizations and consumers by making it illegal for a person or organization to “palm off” or “pass off” goods from one source as goods from another, or “cash in” on the good will, good name or reputation of another.

To be federally protected, a mark must be distinctive so that it identifies the origin of the goods or services. Marks that are fanciful or arbitrary satisfy the distinctiveness requirement, whereas generic or descriptive designations do not. To obtain federal protection, the mark must be registered with the Patent and Trademark Office. Registration serves to notify all that the registrant has exclusive rights to use the mark, and permits the registrant to use federal courts to enforce the mark.

Trade Names:

A trade name is any name used to identify a business and its assets. The difference between a trademark and trade name is that the first distinguishes a particular product as coming from a particular source, even if that source is unknown. (For example, a consumer may be able to easily distinguish OREO cookies from Hydrox, without knowing what company makes either one of those cookies. A trade name, on the other hand, is the name a business uses to identify itself, like McDonald’s Corporation. Sometimes a company will use its trade name as a trademark on products or services (Coca-Cola or McDonald’s are good examples), but that’s not always the case. A holding company might be organized to own trademarks and service marks for tax reasons. Although a trade name may not be federally registered, trade names are protected and any person who attempts to “palm off” his goods as the goods of another is liable for damages.

• Valid Incorporation. The corporation must be set up correctly, according to laws of the state it is incorporated in. This typically means filing articles of incorporation in duplicate with the secretary of state. This is, in effect, an application for a corporate charter. If accepted, the state will issue a certificate of incorporation. Then the board of directors named in the application must meet to adopt bylaws, elect officers and transact such other business as may come before the meeting.
• Conduct Business on a Corporate Basis. This entails following requirements of the state the business is incorporated in. This typically means holding regular directors meetings, maintaining a corporate book with minutes of meetings, keeping corporate funds separate from funds of stockholders, and maintaining financial records on the business. For closely held corporations, the requirements may be relaxed. Check the laws of the state your legal entity is incorporated in and see Closely Held Corporation below.
• Provide Adequate Financial Basis for the Business. This typically means shareholders invest sufficient capital to meet reasonably anticipated requirements of the business. But once the business is initially capitalized, investors are not obligated to contribute additional dollars, even if the entity has financial trouble.
• No Illegal Activity. If the business is used to commit fraud, officers and directors can be held personally liable.

In addition, when executing agreements for the corporation, officers and directors must clearly sign in the name of the corporation — as corporate representatives and not individuals. The corporation also must file its own tax return, separate and distinct from individual return(s) of the owner(s).

Closely Held Corporation

Most companies are closely held, meaning that they have few shareholders, and shareholders serve as directors and officers. The result is a flattened corporate structure like the following:

Figure 1. Management Structure of Typical Closely Held Corporations

The result is that many statutory requirements of corporations — such as annual meetings of shareholders, elections of directors and appointment of officers — are simply formalities. Therefore, most small companies do not even bother. But failure to “act like” a corporation and adhere to legal requirements may result in forfeiture of limited-liability status. Fortunately, many states have enacted laws that relax nonessential governance requirements for closely held corporations. Such laws permit operation without a board of directors, broad use of shareholder agreements, waiver of annual meetings, and execution of documents by a single person acting in more than one capacity, such as chairman of the board and president.

To operate under these relaxed rules, some states require that the corporation both qualify as a closely held corporation (typically fewer than 50 shareholders) and elect “statutory close corporate” status. To avoid potential loss of the corporate veil, it’s critical that you understand the laws of the state your company is incorporated in and abide by them.

Answer: Whenever there are minority owners, you have potential problems. As the principal owner and decision maker in your company, conflicts of interest can arise on whose interests you best serve – yours or the corporation’s. As a board member, you are supposed to watch out for the interests of all owners, not your own. The best ways to protect yourself from conflict-of-interest claims are:
• Refrain from voting on any company matter that personally affects you. For example, allow your other board members to approve your compensation,
benefits, etc.
• Deal with your business on an arm’s-length basis, that is, as if you were dealing with an independent, unrelated person. Don’t treat the business as if it were your personal source of money, benefits, etc.

To protect yourself, put an indemnification clause in your company’s bylaws. You might also consider buying indemnification insurance.

If you are one of these people who treat written agreements as some sort of sacred script that, once written, can be touched only by high priests (i.e., lawyers), stop taking them so darn seriously. Sure, agreements are important and, once signed, they document binding commitments. But feel free to work with them and rewrite them so they serve you better.

It is always good to keep agreements short and easy to read and understand, but allow some room to include summary language as to what clients want to accomplish, how you will help and why they are selecting you. Also add how clients will benefit if the goals are accomplished. Be careful, though, that your additions do not create additional promises, obligations or guarantees on your part.

If you are unsure about changes, talk to your lawyer. If he/she doesn’t support your effort to improve the salesmanship of your agreements, consider finding a new lawyer. Shorter, friendlier and more simply written contracts that also reinforce client benefits will result in more signatures, clients and sales.

Our system works pretty well, but it’s not perfect. One example is when a debtor becomes unable to repay – temporarily or permanently. What if the debtor is a business that has promise and employs many but, if forced to pay as originally agreed, would have to close? Should the creditors hold the fate of the employees entirely in their hands? Or what if the debtor is an individual who could never earn enough to repay? Should the individual face a lifetime of insolvency – in effect forever losing his or her freedom to peacefully exist and have normal debtor-creditor relationships?

U.S. bankruptcy law was created by Congress under its Constitutional authority to “establish … uniform laws on the subject of Bankruptcy throughout the United States.” The purpose was to protect the debtors, creditors and related parties (such as employees and communities) in these extreme cases. Bankruptcy proceedings are supervised by and litigated in the U.S. Bankruptcy Courts, part of the U.S. District Courts.

There are two basic types of bankruptcy proceedings. A filing under Chapter 7 is called liquidation. It is the most common type of bankruptcy proceeding. Liquidation involves the appointment of a trustee who collects the property of the debtor, sells it and distributes the proceeds to the creditors. Bankruptcy proceedings under Chapters 11, 12 and 13 involve the rehabilitation of the debtor to allow him, her or it to attempt to “get back on their feet” so that they can use future earnings to pay off creditors, pay taxes, provide jobs, etc.

In almost all cases, a trustee is appointed to supervise the assets of the debtor. A bankruptcy proceeding can either be entered into voluntarily by a debtor or forced by creditors. And various provisions of bankruptcy law establish the priority of creditors’ interests (i.e., the process for determining who gets what, when).

After a bankruptcy proceeding is filed, creditors – for the most part – may not seek to collect payment or seize assets of the debtor outside of the proceedings (i.e., without the approval of the bankruptcy court). And the debtor is not allowed to transfer property that has been declared part of the estate subject to the proceedings. Furthermore, transactions that occur – such as transfers of property, secured interests and liens – before a bankruptcy filing may be subject to reversal or invalidation to protect the original creditors.

And so, as described here, bankruptcy law is logical and unemotional, and provides a valuable service to debtors, creditors and our greater society. But to the people involved, such as the business owner “losing his business,” it is emotional, painful and perhaps even humiliating. If you are in this position, understand that:

• Bankruptcy exists to bring order and fairness.
• The decision to seek bankruptcy “protection” can be a rational, mature and even compassionate choice.
• If your business is failing, or is having financial difficulty, it can be less a reflection on you than on the situation you’re in.
• Good people can “go bankrupt.” It does not mean that you are less of a human being.
• Of course, maybe in hindsight, you could have, or would have, done things differently, but you did not have the benefit of hindsight before.
• If you’ve been holding on to a belief that you are incredibly smart or perfect, maybe it’s time to come to grips with the fact that you are human, just like the rest of us!
• This too shall pass and, likely, you’ll end up in a much better place (even though you can’t see it now).

If you think you may be facing bankruptcy or could become “unable to keep the doors open,” you need to talk to your banker, accountant, legal advisor and, if you have one, an experienced and trusted “business expert.” The best thing you can do for yourself and for your business is to face reality, get some help and some objective points of view, gather information and options, and come up with the most rational means for dealing with the crisis.

You also need to deal with your considerable stress in healthy ways. That is, engage in activities that reduce your stress and enhance your ability to manage it and its potentially debilitating side effects. For example, exercise and “talking it through with your advisors” are obviously healthier than keeping your problems to yourself and drinking too much.

Yes, your business may be failing, and you might even be facing personal financial failure, and it may all seem out of your control, but you do have control of your response. You can choose to deal with it in a way you can feel proud of, with dignity, honesty, humility, fairness and diligence. What more could anyone ask of you? What more should you really ask of yourself?