Flegal | Floating down stream of consciousness

In all the years that I have been writing this column, I have resisted the urge to write one of those "floating down a stream of consciousness" articles where the columnist bounces from one topic to the next.

But it is July, it is hot, and sometimes things just move a bit too slowly, or a bit too quickly, for me to stay on topic. Today is one of those days.

So with a pre-emptive apology to those who share my skepticism with this sort of column, I shall now float down a stream of consciousness …

As someone with a fairly keen interest in negotiation, I would love to have been a fly on the wall during the nuclear disarmament negotiations with Iran.

Now, the shrieking com­mentary has begun. But unless the shrieker was actually in the room during this process, in my view they are probably not quali­fied to comment on the deal.

Only a precious few will ever understand not only what transpired, but how it transpired. Complicated deals evolve through all sorts of haggling and trad­ing. Everyone but those in the room is effectively an outsider.

Everybody that is, ex­cept perhaps the Israelis, who are alleged to have bugged everything from conference rooms to hotel rooms in efforts to listen in on the discussions.

So despite my level of interest, I intend to be extremely selective about whom I listen to about the outcome of the negotia­tions. Most of the com­menters have their own agendas.

When you add that to the lack of understanding as mentioned above, their opinion is tainted. Most comments are simply based on whether the out­come of the deal helped or hindered the commenter’s personal agenda. ­

Like it or not, only his­tory will accurately judge whether it was a good deal for the U.S.

Speaking of negotia­tions, I was reminded again recently that there is no business transaction with more ups and downs than the purchase or sale of a going concern.

The first thing I tell clients who want to buy or sell a business is to prepare for a roller-coaster ride. Almost always, even in the simplest of deals, issue after issue seems to arise.

Inevitably, there are moments when the client becomes convinced the deal will never close. Usu­ally, it does.

While on the topic buying and selling going concerns, here is a word to the wise for buyers of businesses and their lawyers:

When buying the assets of a seller who has had financial difficulties, be sure to contact the New Hampshire Department of Employment Security and request information about the seller’s unemployment insurance status.

Even in a properly struc­tured asset purchase, where the buyer has disclaimed any and all liabilities of the seller, the department takes the position that it can and will impose any unpaid seller insurance obligations on the buyer.

To make matters worse, it will also foist the seller’s lousy unemployment insur­ance rate on the buyer as well.

To me, it flies in the face of 200 years of established successor liability law. Nonetheless, the depart­ment is doing it, and the avenues for appeal are not pretty.

Unfortunately, the Department of Unemploy­ment Insurance is not the only state agency that has become quite aggressive when it comes to hunting New Hampshire business­es for revenue.

In New Hampshire, when the government needs money, there is only one place for it to go: New Hampshire businesses. Small businesses, with limited resources to defend agency audits and penal­ties, seem to be a favorite target of the regulators.

New Hampshire small businesses are being audited by the Department of Revenue Administra­tion, the Labor Department and the aforementioned Department of Unemploy­ment Security at what seems to be an elevated rate.

The Liquor Commission is making life painful for bars and restaurants. It is becoming very difficult to negotiate reasonable reso­lutions with these agencies. More and more, they push businesses to full hearings. There is less compromise.

I do not advocate that businesses violate the law. I do advocate, however, the use of sound discretion by state agencies.

It seems that the need for revenue is too often trumping the need for fair resolutions. The relation­ship between businesses and state agencies ought to be a working one. Instead, it is becoming adversarial.

We like to think of New Hampshire as a business­friendly state, but the label really doesn’t fit any more. Audits, investigations and penalties generate revenue but do not a friendly busi­ness environment make. New Hampshire is heading in the wrong direction in this regard.

Finally, as a former Repub­lican and current Indepen­dent, I am not surprised by Donald Trump’s status in the early polls. His candidacy is exposing the schism in the Republican party, between the moderate folks who tend to constitute the traditional, establishment segment of the party, and those on the relatively far right.

Trump is throwing raw meat to those Republicans on the far right, and they are eating it up. The notion of Trump running in the general election as a third party candidate should scare the moderate Repub­licans to death.

It would hand the presi­dency to the Democrats. Again. Am I the only one pining for a legitimate third party to stake out the ground between Trump and the Democrats?

There, I feel a bit better.

I hope you enjoyed float­ing with me. Until next month, enjoy the beautiful New Hampshire summer.

Scott Flegal is a business lawyer and mediator. Visit him at www. flegal.com or www.negotiation works.org. Follow him on Twitter at www.twitter.com/hscottflegal and read his blog at scottflegal.com.