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J.E. McPhillips
Business Law, Formations, Transactions and Litigation / Collections
Boulder Business Lawyers: Click on link below to jump to that portion of this page:
Creditors' Rights / Collections / Commercial Collection Litigation 

Business Formations and Transactions
I am a full-service Boulder business lawyer and commercial lawyer and litigator.  When a client seeks guidance concerning formation or acquisition of a business, as a Boulder business lawyer my first task is to understand the client’s business,and short-term and long-term goals. I can then advise 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 a client decides the form in which it will do business, I will identify and draft or review the appropriate documents. But my role does not end there.  I help our business clients with the many business law issues that arise when any new business opens it doors.  I educate my clients so they do not inadvertently lose the limited liability incorporation provides.  
My experience convinces me that all legal documents should be clear, concise, and to the extent possible written in plain English.  I believe in using plain English rather than "Legalese." I love drafting and reviewing legal documents.  Read: Plain English - The Basics.  I have 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
My role does not end after a client forms or acquires a business; I seek to establish long-term relationships with my business clients, including those outside the Boulder/Denver area. I want to actively assist clients in drafting and reviewing legal documents because I know 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."

Due to my diverse experience I can advise business clients on:

  • 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
  • Incorporations
  • 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 Cohen has tried more than one hundred civil and criminal jury trials and litigated many more, with impressive results. In 2012, Mr. Cohen won a 4.2 million dollar 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, I will represent you with honesty, professionalism, tenacity, and efficiency.  And  I will will teach you how to better protect yourself or your company in the future.   Read more about my approach to Litigation and Trials.

Litigation is expensive -- it consumes financial and emotional resources.  For this reason it should ordinarily be a last resort.  I work hard to help our clients achieve effective resolutions.  However, when business litigation is unavoidable, I have the skill and experience to be highly effective advocates for my clients.  My 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
Mine is a Transaction / Litigation law firm.  I believe the distinction between litigation and transactional 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 that fails to 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 Cohen 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,  including one as chairperson and currently serves as the coordinating editor fro the contract law column due to his expertise.  Mr. Cohen 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.   Mr. Cohen now serves as the column editor for the Contract Law column in The Colorado Lawyer magazine.
My goal is to draft concise, well-written documents in order to reduce the risk of subsequent litigation and to  strengthen our client's position if litigation does arise.  To learn more about my approach to drafting legal documents and litigating contract disputes, please visit my Contract Law and Litigation page.  To read more about my approach to litigation and trials in general, please visit my Litigation and Trials page.
Mark Cohen also authored an article on equipment leasing that was the cover story in an issue of Rocky Mountain ConstructionHe is an expert on equipment leasing law.

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. I represent employers in a variety of circumstances. I develop and review: 
  • 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

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

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.  Mr. Cohen 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 a form of ownership, offers 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. 

I draft and review franchise agreements, franchise disclosure documents (circulars), distributorship agreements, and similar documents.  I advise both franchisors and franchisees.  I am familar with the Federal Trade Commission's
Revised Franchise and Business Opportunity Rule

Medical and Health Care ProfessionalsI know that 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 will probably continue to be.  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.

I represent physicians and health care professionals, and can assist them with 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.  We have broad experience representing a variety of creditors in Colorado courts. My expertise in this area includes:

  • 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

I understand that filing suit to collect a debt is not to be taken lightly, and before filing any action I strive to make certain clients understand the costs and risks of litigation.  Although I generally represent creditors and debtors on an hourly basis, we are open to considering hybrid fee arrangements in some cases.

When representing business clients I am committed to educating clients about how to prevent collection disputes from arising and learning from them when they do arise
My experience in this arena is impressive.  While practicing law in Nebraska during the farm crisis of the late 1980’s and early 1990’s, Mark Cohen represented a major credit corporation in collection, replevin, and bankruptcy matters throughout Nebraska.  Today I serve as counsel to a distributorship in Brighton, Colorado, that sells and leases heavy machinery used in commercial construction projects.  I have represented  this distributorship in more than twenty district court actions, with an impressive record of collecting the sums owed to the client and defeating claims against the client.

I understand that 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 POF3d 1). 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. The firm’s knowledge of this area of the law has enabled it to help clients recover money from the directors, officers, and shareholders of judgment proof corporations and limited liability companies.

Mark Cohen gives excellent attention to detail.I represent creditors in contract and warranty litigation throughout Colorado. Our attorneys are 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.

In collection litigation we know that obtaining a judgment is seldom the end of the matter.   We are thoroughly familiar 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. 
The firm has extensive experience in collection disputes involving sand and gravel projects, asphalt projects, concrete projects, rock crushing, screening, road base, and other types of aggregates projects.  We are familiar with the Colorado Department of Transportation (CDOT) contracting process and the statutes governing liens on CDOT projects.
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