An Interview with Chad Silverstein
Improper Classification of Workers: Employee vs. Independent Contractor
Inadequate Employment Contracts
Ignoring State-Specific Employment Laws
Failure to Protect Intellectual Property (IP)
Inadequate Defamation and Privacy Protections
In today’s fast-paced business world, the complexity of legal matters can often be overlooked, leading to significant repercussions for businesses of all sizes. From startup ventures to established corporations, the absence of legal guidance can result in critical errors that affect growth, operations, and sustainability. These mistakes range from issues with contracts and intellectual property to compliance and employment law, each carrying the potential for financial loss and reputational damage. I had the pleasure of interviewing David Fish, Chair of Litigation at Romano Law.
David is a civil and criminal trial attorney, with more than twenty-seven years of employment law and commercial litigation experience. He has managed combat sports athletes around the world for almost twenty years.
In addition to his time as General Counsel for Paradigm Sports Management, David enters his 22nd year as an adjunct professor of law at New York Law School, where he also serves as the faculty advisor to the Sports Law Society. He is the proud coach of the Goshen High School Mock Trial Team — 2023 and 2024 …
David has been named a New York Metro Super Lawyers every year since 2007. He is a Past Chair of the Employment Rights Section of the American Association for Justice, past Co-Chair of the New York State Bar Association Labor & Employment Law Section’s EEO Committee, and a past National Employment Lawyers Association/New York Chapter (NELA/NY) Executive Board member, where he was editor of the NELA/NY Employee Advocate newsletter. David regularly speaks on panels and symposiums on sports law and contract negotiation.
Thank you for joining us. To start, could you share your “origin story” with our readers? How did you begin your career? What challenges did you face in the early days? How did you overcome them? Is there a particular book that made a significant impact on you? Can you share a story or explain why it resonated with you so much?
I hope it doesn’t seem lowbrow to reference a movie rather than a book, but I respond to the message in 2015 film The Martian, starring Matt Damon, and directed by Ridley Scott, and based on a novel by Andy
Weir. The title character is faced with enormous, unfathomable odds. After he licks his wounds a bit, he gets to work.
“You just begin. You do the math. You solve one problem. And you solve the next one. And then the next. And If you solve enough problems, you get to come home.”
Too often, we look at the enormity of a problem and are paralyzed by it. The answer is to take one step properly, and then the next, and then the next. This applies to almost everything in life, and certainly legal challenges.
Do you have a favorite “Life Lesson Quote”? Do you have a story about how that was relevant in your life or your work?
I’ll bore you with another movie. In the movie “Million Dollar Baby,” there is an exchange between the lead characters Maggie Fitzgerald and Frankie Dunn. Maggie is a boxer speaking to her coach, Frankie, between rounds.
Maggie Fitzgerald: She’s tough, I can’t go inside, I can’t get close enough to hit her. Frankie Dunn: You know why that is?
Maggie Fitzgerald: Why?
Frankie Dunn: Cause she’s a better fighter than you are, that’s why. She’s younger, she’s stronger, and she’s more experienced. Now, what are you gonna do about it?
[Next round starts. Maggie knocks her out in few seconds]
We all have reasons or excuses for why we may fail. They can almost always be overcome through hard work and a non-quitting spirit.
How have you used your success to make the world a better place?
I’m not sure it’s using any supposed “success,” but I try to “see” and acknowledge people and their good work and deeds. I enjoy mentoring young people. As part of that, I volunteer my time coaching a high school mock trial team.
Ok, let’s now turn to the central part of our interview. What is the most common legal mistake you see businesses make due to the lack of proper legal counsel, and what are its potential consequences?
In general, it’s very simple: not practicing “preventative law.” We get dental cleanings every six months and an annual physical if we care about our health. We should do the same with our businesses. Spending the time and money protecting your interests early on, and annual check-ins, can save you a tremendous amount of money and your business itself.
Can you share an example where early legal intervention could have significantly altered the outcome of a business dispute or challenge?
Acting as outside general counsel to a growing tech company, I reviewed and updated all employment contracts and service agreements, and presented annual anti-harassment and anti-discrimination training. The company — full of young people working closely together — had virtually no litigation or legal problems.
How do changes in digital technology and online business practices complicate legal issues for businesses without dedicated legal advice?
The biggest thing I see is cyber-crime and the potential compromise of sensitive and confidential information. All employees should be trained in best practices and you should have appropriate cyber security in place. Again — an ounce of prevention is worth a pound of cure.
In your experience, how does the absence of legal counsel impact a business’s approach to contracts and negotiations, and what advice would you give to mitigate these risks?
Always consult with experienced legal counsel or hire an in-house attorney with broad experience.
What legal pitfalls do new businesses often overlook during their initial setup and growth phases, and how can they proactively address these issues?
Consult with an experienced business attorney. Things often overlooked are the various types of insurance that need to be secured, the legal protections for employees that need to be explained and posted, and failure to properly classify and pay workers.
Here is our main question. Could you list and briefly explain “Top 5 Mistakes Businesses Make Without Legal Counsel” based on your experiences and insights? If you can, please share a story or example for each.
1. Improper Classification of Workers: Employee vs. Independent Contractor
a. Many businesses, especially in entertainment, wrongly classify workers as independent contractors rather than employees. This can lead to significant legal and financial
consequences, including back taxes, penalties, and lawsuits.
b. Case Law Examples
Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) changed the standard in California, adopting the ABC test, which made it harder for companies to classify workers as independent contractors.
However, in Vazquez v. Jan-Pro Franchising International, Inc., the California Supreme Court ruled in January 2021 that the Dynamex decision now only applies retroactively. This means that the “ABC” test from Dynamex applies to all cases that were not final as of April 30, 2018, when the decision was issued.
In the entertainment industry, musicians and production assistants are often misclassified, leading to disputes over wage and hour laws, such as overtime and benefits. This could have been avoided with legal counsel understanding labor laws.
2. Inadequate Employment Contracts
a. Businesses sometimes fail to create clear, enforceable employment contracts, especially in film, television, or media production industries. The terms can be ambiguous without legal counsel, leading to disputes over intellectual property, royalties, or compensation.
b. Case Law Example
In Montz v. Pilgrim Films & Television, Inc. (2011), a producer sued NBC for allegedly stealing his idea for a paranormal show. The court ruled in favor of the producer, emphasizing the importance of clear contractual terms on idea submissions. Proper legal guidance could have helped NBC avoid litigation by drafting better agreements.
3. Ignoring State-Specific Employment Laws
a. Different states have specific regulations governing wage and hour rules, harassment policies, and employee rights. Failing to comply can result in penalties and lawsuits. For instance, California has stricter labor laws than many other states, particularly in the entertainment industry.
b. Case Law Example
Ward v. Tilly’s, Inc. (2019) showed how California courts enforce its unique reporting-time pay laws. In this case, the dispute was over whether workers who were required to call in for shifts but were not called to work were entitled to compensation. A business expanding into California without understanding local employment laws might face costly lawsuits.
4. Failure to Protect Intellectual Property (IP)
a. Entertainment businesses are especially prone to this mistake: failing to secure copyrights, trademarks, or patents for their works. This can lead to third parties exploiting their creations without legal recourse, and businesses may neglect the complexities of IP law without legal counsel.
b. Case Law Example
The Walt Disney Co. v. Powell (2000) case highlighted how vital it is for entertainment companies to enforce their intellectual property rights. Disney successfully sued a daycare for using its characters without authorization. Legal counsel would ensure proper licensing and protections are in place to prevent unauthorized use.
5. Inadequate Defamation and Privacy Protections
a. Entertainment businesses, especially those involved in reality TV or documentaries, can face defamation or invasion of privacy claims if they do not obtain proper legal releases or protect individuals’ rights.
b. Case Law Example
Bollea v. Gawker Media, LLC (2016), better known as the Hulk Hogan case, involved Gawker’s publication of a private video without consent, leading to a $140 million judgment against the media company. Legal counsel can help secure proper waivers and minimize the risk of such lawsuits.
You are a person of great influence. If you could inspire a movement that would bring the most amount of good for the greatest number of people, what would that be? You never know what your idea can trigger.
Be honest. Be kind. Be curious.
As we wrap up, how can our readers follow your work?
Read our legal updates at romanolaw.com and follow me on Instagram @mmalawyer. Thank you for these fantastic insights. We greatly appreciate the time you spent on this.
Thank you for these fantastic insights. We greatly appreciate the time you spent on this.
About the Interviewer: Chad Silverstein is a seasoned entrepreneur and Thought Leader with over 25 years of business experience. He has founded, operated, and exited multiple companies and now builds into a handful of high impact CEOs. Chad has launched multiple online communities, including a recent leadership development platform, and also serves as a strategic advisor for Authority Magazine’s thought-leader incubator program.
To learn more and connect with Chad visit: chadsilverstein.io
Dave Fish Of Romano Law On The Top 5 Mistakes Businesses Make Without Legal Counsel was originally published in Authority Magazine on Medium, where people are continuing the conversation by highlighting and responding to this story.