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Asset Protection Attorney: Asset Protection and Charging Orders - What They Are - How They Work

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Information Security Policies: Foundations of Asset Protection

Information security policies, whether corporate policies, business unit policies, or regional entity policies provide the requirements for the protection of information assets. An information security policy is often based on the guidance provided by a frame work standard, such as ISO 17799/27001 or the National Institutes of Standards and Technology's (NIST) Special Publication (SP) 800 series standards. The Standards are effective in providing requirements for the "what" of protection, the measures to be used, the "who " and "when" requirements tend to be organization-specific and are assembled and agreed based on the stakeholders' needs.

Governance, the rules for governing an enterprise are addressed by security-relevant roles and responsibilities defined within the policy. Decision making is a key governance activity performed by individuals acting in roles based on delegated authority for making the decision and oversight to verify the decision was properly made and appropriately implemented. Aside from requirements for protection measures, policies carry a variety of basic concepts throughout the entire document. Accountability, isolation, deterrence, assurance, least privilege and separation of duties, prior granted access, and trust relationships are all concepts with broad application that should be consistently and appropriately applied.

Policies should ensure compliance with applicable statutory, regulatory, and contractual requirements. Auditors and corporate counsel often provide assistance to assure compliance with all requirements. Requirements to resolve stakeholder concerns may be formally or informally presented. Needs for the integrity of systems and services, the availability of assets when needed, and the confidentiality of sensitive information can vary significantly based on cultural norms and the perceptions of the stakeholders.

The criticality of the business processes supported by specific assets presents protection issues that must be recognized and resolved. Risk management requirements for the protection of especially valuable assets or assets at special risk also present important challenges. NIST advocates the categorization of assets for criticality, while asset classification for confidentiality is a long standing best practice.

Requirements for policy may arise from a contractual source or from a partner's request, the Payment Card Industry's Data Security Standard (PCI DSS) requires a policy addressing the Standard's requirements that applies to all assets within the scope of the standard. DSS requirements can be integrated into a single corporate policy but given the stringency of the requirements an enterprise may elect to segregate protection domains with separate dedicated policies so that less stringent requirements are applied to assets outside the scope of the DSS, saving resources and tailoring protection based on the lesser perceived threat/risk to the assets.

Risk assessments are an important source of policy requirements that are specific to the environment and assets to be protected. Risk mitigation measures based on an assessment of risk and the assets at risk allows managers the opportunity to weigh investment against potential damage to reach a level of risk acceptable to the decision makers.

Attacks targeting online applications and their data have become an issue of well-founded concern, policy should focus on risks in this area by specifically addressing the software development lifecycle and measures to ensure bespoke applications are sufficiently robust to withstand common attacks.

Policies should be reviewed and accepted at senior levels, ensuring the policy's authorizing authority has the stature necessary to make policy compliance mandatory. An authorization process to document and approve instances of noncompliance should also be provided. Often a compliance window is granted to allow time for the implementation of the policy by all applicable organizational entities.

Auditors often provide assurance of compliance as a result of their activities. The senior Auditor is also an important stakeholder and reviewer of policy drafts and amendments. Policies should be reviewed on an agreed schedule, often every two or three years. Changes in technology, evolution of business objectives and changes to the organization's goals and processes all act to invalidate and outdate a policy. Keeping the policy fresh and relevant is essential to providing appropriate protection to important assets and supporting mission performance.

ISO 17799/27001 and NIST SP800-53A Revision3 both provide a long list of information protection best practices. There is frequently an inclination to declare one of the documents to be the corporate standard and demand policy comply with the corporate standard. Ignoring cost issues, there are several important things wrong with this approach, first and most importantly, it ignores risk realities. Best practices are the average, where extraordinary risks exist, they are too weak and where risk is significantly below average they are too strong, wasting resources. Policy should be based on reality, not an idealized set of homogenized requirements. Arguably the correct approach is to begin with a standard and bend it to fit the shape of the enterprise. There is one exception to this rule, shops that run an absolutely standard architecture can benefit from the simplicity and straightforward nature of a standardized policy. Governance issues remain and should be dealt with quickly and cleanly as exceptions.

Security guidelines, component configuration standards, and standard operating procedures are based on and build on the information security policy. Care should be exercised that the documents are consistent with each other and are reviewed and exercised for correctness and reliability. Security training is often based on the detailed documents ultimately leading to repeatable processes and a predictable level of protection being realized.

An information security policy is a necessary first step in securing an environment and providing appropriate protection to all information assets. Building consensus around a policy is an effective approach to resolving concerns and resistance to the idea of mandated controls. Listening to and involving stakeholders while ensuring the policy reflects their issues will go a long way in gaining acceptance of the program of protection.

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Asset Protection Attorney: Learn the Ways to Safeguard Assets From Liabilities by Asset Protection

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Asset protection is one of the primary purposes for creating a limited liability company ("LLC"). LLCs provide two types of asset protection: (1) protecting the members from the liabilities of the company (sometimes called protection from "inside liabilities") and (2) protecting the assets of the LLC from the liabilities of the members (sometimes called protection from "outside liabilities").

If an LLC owns a rental house and the tenant sues the LLC because they slipped and fell down the stairs, this is an example of an inside liability. The general rule is that the tenant can sue the LLC, but they cannot go after the assets of the members unless they can pierce the corporate veil of the LLC. Piercing the corporate veil is very difficult to do. The test for a piercing of the corporate veil may vary slightly from state to state, but generally the tenant must prove that the LLC is the alter-ego of the member, and that the member has not treated the LLC as a separate and distinct legal entity. Because the laws protecting the members from an inside liability are similar in every state, the asset protection against inside liabilities is similar regardless of where the LLC is filed.

If a member is a physician and is sued for malpractice, the creditor may attempt to go after the assets of the LLC in order to collect on the judgment. This is an example of an outside liability because a creditor of a member is seeking to get into the LLC through the member. The remedies available to a creditor of a member vary greatly from state to state. In some states, the creditor of a member has a right to foreclose on the members interest and become the owner of it. In other states, the creditor of a member is limited to a charging order. A charging order is a court order which requires the LLC to pay any distributions that otherwise would have been paid to the member directly to the creditor. A charging order is not a good remedy for a creditor because the creditor is only entitled to distributions if the LLC decides to make a distribution; a creditor cannot force a distribution to be made. Therefore, an LLC offers greater asset protection if it is governed by the laws of a jurisdiction that strictly limits the remedies of a creditor.

Most if not all states follow the "internal affairs doctrine" established by the United States Supreme Court. This doctrine says that the internal affairs of a company are governed by the laws of the state where the company is filed, not the laws where the business activities take place or where the members are located. In fact, most states have a statutory provision stating that the internal affairs of an LLC are governed by the laws of the jurisdiction where the LLC was filed. This means that if an LLC is filed in Alaska and a California resident sues another California resident who is a member of the Alaska LLC for a tort committed in California, the issue as to whether the creditor can get information or assets from the LLC is governed by the laws of Alaska and not the laws of California. In other words, the state where an LLC is filed is critical in determining the asset protection provided by the LLC from outside liabilities.

Another issue affecting the asset protection provided by an LLC is confidentiality. In some states, the members and managers of an LLC are required to be disclosed and included in the state records which are available to the public. In other states, the members and managers are not made a part of the public record. Many people feel that they have better asset protection if the identity of the members and managers are not made public.

Having studied the laws of every state in this regard, and having read many scholarly articles on the subject, it is my opinion that Alaska provides the strongest asset protection against outside liabilities because they not only limit the remedies of a creditor of a member to a charging order, but they also prohibit a creditor from obtaining a court order for inquiries, accountings or directions (see Alaska Statutes 10.50.380). Several other states expressly limit the remedies of a creditor to a charging order, which should also be sufficient to prevent a creditor of a member from collecting from an LLC.

When it comes to confidentiality, I believe that the New Mexico LLC is the best option because there is no public disclosure of members and managers and no requirement for the filing of an annual report.

Nevis is a country in the Caribbean that has the best LLC laws in the world. Nevis LLCs offer the strongest asset protection and confidentiality of any jurisdiction. Nevis LLCs can be created and maintained without excessive cost or complexity. Any business or assets can be owned by a Nevis LLC, wherever it is located. If you want the strongest asset protection available, I recommend a Nevis LLC.

If you want the best LLC within the United States, I feel that Alaska is the best option for asset protection purposes and New Mexico is the best for confidentiality of managers and members. Alaska has a convenient online filing system, but New Mexico has lower filing fees and zero annual renewal fees. In conclusion, it is important to note that the laws described in this article are apt to change from time to time. This article is provided for informational purposes and should not be used as legal advice for any specific situation. Readers are advised to seek competent legal counsel in designing and creating limited liability companies or engaging in asset protection planning.

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