Atlanta Commercial Law Attorney Guards Against Risk to Protect Your Company’s Profits
Experienced attorney provides advice to boost your bottom line
Companies engage in commercial exchanges for one reason only: profit. But the more complex the transaction, the greater the risk that one element or another will trigger losses that destroy the value of the deal. As your commercial law counsel, Spizzirri Law Offices Company Limited guards against various risks that threaten the profitability of commercial exchanges and the long-term viability of commercial businesses. By taking a proactive approach, we can reduce wasteful expenditures from breach of contract litigation, regulatory discipline, lost trade secrets, and other preventable losses while we help you develop and implement a strategy for sustainable growth and profitability.
Risk Management includes carefully confirming that sufficient insurance coverage exists to protect against claims that can destroy your business. Insurance also covers legal expenses so that broader coverage can mean broader protections against the legal bills associated with legal claims. Policy combinations can include general liability, EPLI, D&O, E&O and even personal guarantee insurance coverage to protect owners who personally guarantee business loans. Key factors can include the ability to choose your own attorney rather than have the insurance company pick an attorney for you, deductibles and numerous other coverage options. Risk Management can also include a thorough review of legal risks associated with regular business operations to identify very high-risk aspects that may be outsourced to lower enterprise risk.
Legal Risk is traditionally expressed in statistical terms as Risk is equal to the product of the probability of a particular event and its associated financial cost (R = p * Cost) similar to an expected value calculation. For example, if the probability of a particular event is 10% and the cost of that event is $1,000,000, then the Risk associated with that loss is traditionally calculated as $100,000 which we express as R1. This Risk would be comparable to a Risk of a different event the probability of which is 80% and the cost associated with that event is $125,000 which we express as R2. In other words, R (10% probability of a $1,000,000 loss) is essentially equivalent to R (80% probability of a $125,000 loss).
These losses are then placed into temporal context and subjected to a discounted cash flow analysis based upon principals associated with the time value of money. The present value of a dollar is expressed as the formula PV = FV / (1+r) t where PV is the present value, FV is the future value, r represents the discount rate and t represents time. Returning to our example above, assume that R1 is predicted to occur in year 2 while R2 is predicted to occur in year 1 and the discount rate is 10%. The associated calculation of the net present value of R1 is expressed as PV = (.10 * $1,000,000) / (1.10)2 or the quotient $100,000 / 1.21 which yields $86,644.63. In contrast, the associated calculation of the net present value of R2 is expressed as PV = (.8 *$125,000) / 1.1 or the quotient of $100,000 / 1.1 which yields $90,909.09. In temporal context, R2 is therefore greater than R1 despite the initial appearance of mathematical equivalency.
In practice, this analysis is complicated because costs are often incurred over a term of years (attorney fees, litigation expenses or judgments) and probability determinations are rather subjective and often based upon speculation of an experienced attorney. Once identified and quantified, the purpose is to reduce, mitigate or eliminate these risks employing an array of tools to manage these risks such as insurance, outsourcing, contract management, regulatory compliance and organizational/transactional structuring. Risks should be identified and quantified as early as possible and compared to the cost associated with mitigation or elimination to strike the appropriate equilibrium. Complete elimination of a risk might require a cost that exceeds the amount of Risk Exposure while doing nothing may be free, but the probability of a catastrophic event is maximized. Striking a balance concerning each risk event is an important component of risk management.
This traditional approach is in a continuous state of evolution and new approaches are being developed. For example, see ISO 31000:2009 Risk Management – Principals and Guidelines.
Comprehensive “reverse due diligence” adds value to your transactions
Our proactive approach begins with a top-to-bottom diagnostic review of your legal function to identify potential problems and areas for improvement. As project management professionals who identify and exploit profit opportunities, we continuously refine strategic and tactical policies with the goal of maximizing enterprise value while mitigating or eliminating risk. The areas we routinely address include:
- Basic planning
- Organizational and Transactional Structuring
- Business communications
- Business financing (Debt and Equity)
- Human Resources
- Intellectual property registration and licensing
- Insurance coverage and high-risk areas
- Regulatory compliance
- Review of commercial transaction agreements
- Review of operating activities and enterprise risk management
- Review and structure of foreign transactions and investments
- Trade secrets and confidential information
Although our work is geared toward preventing litigation, we are adept at resolving disputes in a timely, cost-effective manner if they should arise.
Building value and reinforce relationships with customers and vendors through proactive contract management
Contract management is a comprehensive approach that goes beyond creation and execution. We analyze existing contracts to evaluate the operational and financial performance of each commercial transaction and, by extension, the probable impact that contractual relationships may have on financial performance of your company. A key area of analysis focuses on contract risks and strategies to reduce exposures. Given the rate of technological change and the introduction of disruptive innovation throughout every industry, contract terms inevitably fail to reflect various changes such as procurement or service contracts concerning key components that fail to account for disruptive innovation or technological changes that instigate sudden market pricing changes. Rather than litigate to preserve the past, we often recommend that contracts contemplate periodic renegotiation and reformation of commercial agreements as a better alternative to expensive litigation, because these remedies can preserve transaction value while providing an opportunity to improve vendor and customer relationships instead of destroying them through conflict. Sometimes the solution may be to gradually migrate contractual relationships away from existing parties rather than abruptly ending such relationships.
Relationships with critical vendors should never be exclusive or concentrated. Instead, vendor relationships should be diversified to protect against supply disruptions or terminations that occur with a single source of supply due to fire, theft, natural disasters or bankruptcy. Contract management should include stress testing of key vendor relationships to consider whether alternate vendors can meet the Company’s supply requirements and the possibility of these events should be contemplated by the contractual agreements, pricing, insurance, and disaster planning all of which have legal ramifications that should be planned for in advance and that planning should be reflected in supporting language that is present in all critical commercial agreements. Failing to plan is planning to fail.
Likewise, relationships with critical customers should never be exclusive or too concentrated. If your business has one customer, what will be the result of a sudden bankruptcy by that customer? Do contracts with your ten largest counterparties provide for proper indemnification for exceptional damages such as successor liability for taxes, environmental exposures or product liability? Careful management of the entire diversified portfolios of vendor and customer contracts should also consider whether expense allocations are proper and whether additional revenue opportunities may exist that justify augmentation of existing agreements. Proper contract management encourages our clients to engage in productive dialog with that 20% of customers who generate 80% of revenues to enrich these relationships and to identify, qualify, develop and close new revenue-generating transactions with existing customers. Does your contract management cultivate new growth opportunities putting you in control or are you recycling the same form agreement year-after-year hoping that organic customer growth increases your revenues as a result of outside forces beyond your control?
When litigation appears necessary, we conduct a careful net present value analysis of probable outcomes the litigation expenses of bring legal claims are justified by the expected value of probable collectible judgments in advance of serving any Notice of Breach.
Proactive approach to regulatory compliance reduces risk
An outstanding example of how prevention can boost the commercial success of your business is regulatory compliance. The time and expense of defending your company in enforcement proceedings can be exhaustive, even if your company is not ultimately sanctioned. As your General Counsel, we provide reliable, in-depth guidance concerning the state and federal regulations critical to your business. Where appropriate, we help you to screen law firms that specialize in certain regulatory areas to formulate budgets and manage proactive regulatory compliance engagements.
Advanced preparation can make a critical difference in the outcome of a regulatory investigation. Proactive compliance initiatives ensure that the company complies with regulatory requirements before an investigation rather than learning about these requirements during an investigation. Failure to comply with regulatory requirements over a period of years can result in large fines, litigation or more severe sanctions against the company and its individual owners including both civil and criminal exposures. By getting out in front of a problem, and demonstrating good faith and transparency, we have often reached negotiated solutions that assuaged regulators and protected client’s interests without devastating enforcement consequences.
Let our proactive legal service enhance your company’s commercial value
If you are a small to medium-sized business anywhere in the United States, learn how Spizzirri Law Offices Company Limited can deliver value for your company. For a consultation on the firm’s commercial law services, call 404-458-8311 or contact our Atlanta office online.