Business and Tax Lawyer Blog

It’s time for a change - - You’ve just left your corporate job of 10 years and you want to buy a business, use the skills you’ve honed in the old company (or happily developed on your too few days off from work) and finally be your own boss. Your dream company has come across your path and it’s simply be too good to pass up - - and if you wait too long, someone else will get it first. So what now? Now you Slow Down….Your dream can become a nightmare if you do not think through the deal and research the business prior to purchase.

How do you avoid losing the opportunity of a lifetime to someone else? You negotiate and enter into a WRITTEN conditional Purchase and Sale Agreement – contingent on you receiving a set period of time in which to review the transaction and back out if you wish. Your review and research time (called a “Due Diligence” period) will permit you to look into issues important to your ability to live your dream; including for example:

1. What About the Seller. Who is the Seller and how will the Seller’s current style of operations and reputation affect your ability to market the business and sell the product or service in the future?

2. What About the Premises in Which the Business is Located. What is the status of the real estate in which the business is operating? If it’s a lease, is the lease assignable? If assignable, what are the terms of the lease and do those terms fit your business plan? If the real estate is owned by the Seller, does the Seller have the right to sell the property “free and clear?” Would the real estate be included in the business sale price or will you need to negotiate a lease to remain in the same location?

3. What About any Claims Against the Business. What type of debt is the business facing and will it become your debt on sale? Are there any judgments, liens or outstanding taxes (for example, real estate taxes or tax liens, employee related taxes, intangible property taxes or IRS tax liens)? Are there any debts on the property or inventory you are purchasing (mortgage liens or UCC filings)?

4. About the Status of the Assets You Will Be Buying. What are you buying? Are you buying the stock of the Company and taking over the corporation that owns the business? Or are you buying the assets, contracts, furniture, fixtures, equipment and goodwill of the business from the Selling Company. If it’s the latter, then will you buy it individually as a sole proprietorship or as an entity (Partnership, LLC, C Corp, S Corp, Joint Venture)? There are risk and tax considerations which should be addressed in determining the structure or entity under which you operate the business. Are all of the vender contacts necessary to run the business assignable to you on the same or better terms than offered to the Seller?

5. About your Ability to Fund the Transaction. Some of the answers to the questions listed above may impact your ability to obtain financing from an institutional lender. Unless you are able to handle the purchase price without a loan, you will want to establish the securing of satisfactory Purchase Money financing as a contingency on the contract.

Continue reading " Living the Dream - Buying a Business " »

The sale of a business involves many elements- all of which should be reduced to writing. A contract should be clearly negotiated and executed by both Purchaser and Seller. The terms of the deal should be clear – including such items as:

The names of the Sellers and Purchasers;

A clear description of what is being sold (i.e., shares of stock or membership interest in a business or merely the assets of a business - - such as leases, furniture, fixtures, inventory, equipment, vendor sale or purchase agreements, databases, etc.);

The date the sale will be effective (and a time limitation on how long the contract can remain in effect before a party can claim default);

The total sales price;

Any financing structures;

The treatment of any deposit (identifying any portion that is non-refundable);

Statements as to condition of the premises and any assets at turn-over;

The treatment of any trademark or fictitious name ownership as to business names or logos associated with the business;

Any agreed upon contingent matters that must occur prior to closing on the business; and

Standard elements including such items as the State in which any contract disputes will be handled, the parties’ agreement as to attorney fees and costs in the event of a dispute and whether mediation or arbitration will be the agreed upon method of resolving contract disputes.

Continue reading " Living the Dream - Selling a Business (part three - Document the transaction) " »

You’re hired as an independent contractor to come in and help revamp and reinvigorate a flagging business. As part of your new business plan, you suggest changing the business’ name and logo. Both parties agree to this suggestion, but neither party discusses ownership of the new name and logo, and nothing is memorialized in writing.

Trademark law applies to names, words, symbols, or some other device whose sole purpose is to identify a merchant or manufacturer in order to distinguish those goods sold or manufactured by others.

So, do you, the hired consultant from whom the glorious ideas spawned, have a claim of rights to the name and logo? In a word - no. In the absence of an agreement to the contrary, when it comes to trademark law, not much importance is placed on who created the name. Trademark law only cares about who is using the name and logo, and particularly who used it first. US Patent and Trademark Office’s definition of a Trademark.

Therefore, regardless of the fact you created the name and logo, you would not be able to register the trademark, as you were not the first to use it in the stream of commerce. Furthermore, as you were paid to revamp the business’ image, arguably changing the name and logo could be considered part of that work.

Continue reading " What's in a Name?...Use it or Lose it! " »

There is an old (very old) joke about the two happiest days for a boat owner - - the day he buys his boat and the day he sells his boat. Being a business owner may elicit some of the same emotions. When a business owner decides to sell his business, the most natural inclination is to find a purchaser and sell-sell-sell - the faster the better. However, the act of selling comes with some risk if the Seller linked any portion of the sales price to fees received after the closing - - for example, commissions on sales, percentages of gross revenues or net revenues, or Note payments for a security instrument held by the Seller as part of the business sale. Each of these situations works for the Seller only if the business purchaser keeps the business running and sales moving.

For this reason, Sellers should take steps prior to closing to confirm that their purchaser has the background, expertise and financing to run the business well. These “steps” are referred to as “due diligence.” From a Seller’s perspective, due diligence may involve checking the purchaser’s credit and financial statements, confirming that the purchase price financing is approved and confirming that nothing in the purchaser’s background will diminish the value of the business after the sale. This due diligence process may be established as a pre-condition of closing - - basically, a contract contingency permitting the Seller a period of time in which to “approve” the purchaser and, if not satisfied with the results of the investigation, to permit Seller to back out of the sale without penalty.

Continue reading " Living the Dream - Selling a Business (part two - Due Diligence) " »

In a blog posted late last week, we discussed that the Florida Supreme Court announced, through its clerk of Court, that it has no Constitutional authority to interfere with pending foreclosure actions because of alleged attorney misconduct.

Attorney General, Bill McCollum, is now stepping in and investigating several foreclosure firms for possible fraudulent activity. He has subpoenaed certain Lender Processing Documents (LPS) including network agreements with law firms.

Back in September, Congressman, Alan Grayson, asked Chief Justice Canady to suspend foreclosure actions until McCollum had a chance to investigate fraudulent allegations against particular foreclosure law firms. It is rumored that McCollum is currently investigating: The Law Offices of David J. Stern, Florida Default Law Group, Shapiro & Fishman, and the Law Offices of Marshall C. Watson.

In addition to the network agreements, LPS training manuals and policies have been subpoenaed. The review of these documents will most likely take time. Therefore, any type of resolution probably will not be reached any time soon. To learn more about the article, visit McCollum subpoenas LPS documents.

Continue reading " McCollum Stepping In: Subpoenas Documents " »

Apparently, the biggest and most technically savvy company can have trouble getting through the trademark process. The United States Patent and Trademark Office denied Google's trademark application for the mark "Nexus One," which is the name of Google's newest touch screen phone. While some posts on the matter questioned how Google could "miss" finding the prior filing, it is possible that Google saw the registration, but felt they had viable claims to support their application.

The USPTO replied to Google's application with an office action indicating the proposed mark may present a likelihood of confusion with a previously registered mark.  The previously registered mark belongs to Integra Telecom Inc., which had registered the mark "Nexus" in 2008 in connection with telecommunication services.  In explaining the refusal, the USPTO noted that "Nexus One" and "Nexus" are confusingly similar. 

The office also noted that a likelihood of confusion may also arise when one mark is completely encompassed within another mark, as in the case here (i.e., the registered word "Nexus" inside the applied for phrase "Nexus One").  In the trademark application process, the examining attorney responds to the applicant through an office action, which is a letter indicating whether there are any objections to registration.  Thereafter, an applicant has six months to respond or else the application will be considered abandoned.   Google confirmed in the summer of 2010 that it planned to respond to the office action and would submit further evidence in support of its application.

Continue reading " Google Denied "Nexus One" Trademark " »

The next tax day may be far away, but thinking about tax day now can help you save later. Two options to consider are:

1. Bunch deductible expenses. Certain deductions have thresholds. For example, you can only write off medical expenses to the extent that they are 7.5% of your adjusted gross income. Miscellaneous expenses are subject to a 2% adjusted gross income floor. If you are coming close to qualifying for the medical deduction, consider bunching those expenses together.

2. Take advantage of green credits. Certain energy efficient products qualify for a tax deduction of 30% of the cost up to $1,500. Among these products are energy efficient air conditioners, biolers, furnaces, roofing, doors, water heaters and insulation. Some energy efficient hybrid cars also qualify for credits up to $3,400 of the purchase price. However, 2010 is the last year to take advantage of the hybrid write-off. See Department of Energy - Consumer Energy Tax Incentives for more information.

Taxes can seem complicated and it is hard to know your best options. Contact Wood, Atter & Wolf, P.A. to discuss with a tax attorney the tax options that are best suited for your needs.

Recently, the Florida Supreme Court was asked to suspend Florida foreclosure cases until Attorney General, Bill McCollum, had a chance to investigate several allegations of fraud against particular foreclosure firms.

The allegations assert that key documents are being forged in identifying mortgage ownership and many mistakes are being made by these firms due to the high volume of cases they are taking on. However, the Florida Supreme Court responded with a letter, through the Clerk of the Court, Thomas Hall, that they have no Constitutional right to interfere with cases because of attorney misconduct allegations.

One of the many duties the Clerk of the Florida Supreme Court is responsible for is releasing orders and opinions of the Court to the public. You can see more of the Clerk's duties at Florida State's Court System.The Florida Supreme Court has the authority to regulate attorney misconduct but cannot suspend cases simply because fraudulent acitivity is alleged.

Currently, GMAC, now owned by Ally Bank, will not continue with eviction or foreclosure proceedings in 23 states, for the time being, because a former employee admitted to forging documents and committing several frauds. JP Morgan, based out of New York, is asking courts to suspend final orders in pending cases because several employees admitted that they had not reviewed documents and material they should have been reviewing prior to moving forward with foreclosure proceedings.

Find out more about the issue at Florida Supreme Court can’t halt foreclosures.

Continue reading " Florida Supreme Court Will Not Prevent Foreclosure Filings From Moving Forward " »

Once you have decided to sell your business, your first step will probably be to determine an acceptable sales price. That pricing will be based on what the market will bear - - possibly as determined by a knowledgeable business broker or possibly as developed in the course of negotiations between you and your purchaser.

After the sales price is agreed upon, the purchaser must then determine how to come up with that purchase price. Options for financing may include (i) payment from cash in hand by the purchaser, (ii) institutional financing, (iii) investor financing or (iv) seller financing. With regard to you, the seller, holding a note and security interest in the business assets to finance the sale of the business, your personal financial strength should determine what type of financial terms may be acceptable. If you have sufficient retirement revenue set up apart from the sale, you may find it acceptable to take a portion of the purchase proceeds in payments over a period of time.

If you are counting on the sale of the business to fund your retirement lifestyle, taking a note and security interest as part of the sales price may not be a good idea. If the business continues as hoped, there may be potential tax advantages to spreading the sales price over time; however, the risk to your retirement security remains high. Specifically, if the new owner runs the business into the ground, you may have no business left to operate and your purchaser will likely default on the loan to you.

Continue reading " Living the Dream - Selling a Business (part one - financing options) " »

As many of you are aware, the National Football League's Player's Association ("NFLPA") and team owners have been unsuccessful in negotiating the terms of the upcoming Collective Bargaining Agreement ("CBA"). The current CBA is set to expire after the 2010 NFL season unless both sides agree to an extension of the current CBA terms.

The prospect of being without NFL football in 2011 is becoming a very real possibility. Earlier this month, reports indicate that team owners have asked lenders for an extended grace period on outstanding loans or, in the alternative, have debt deferred altogether to a later date in the future. This may be a sign that team owners are not expecting typical NFL season revenues in 2011 and therefore, cannot make regular payments on their debt. In addition, the NFLPA has advised its union members to save income and make other financial preparations in the event there is a lockout next season. This does not bode well for NFL fans, players, or the owners.

Pension and health plans, salary cap ceilings, and rookie signing bonuses are just a few of the topics on which both sides are far from reaching an agreement. Many deals occur in the final hours of negotiation, but both sides have asserted that they are not budging. As the window of time shrinks, expect negotiations to heat up. To learn more, visit NFL notebook: Players Union: Owners set for no games in 2011.

Continue reading " Will we have NFL football in 2011? " »

It’s time for a change - - You’ve owned your business for years, created it from scratch, weathered the bad times, grown during the good times and now you want to try something new -- 54 holes of golf a week or fishing whenever you please. So what now? When considering selling your business, there are four important steps you will want to take:

1. Decide what financial terms will be acceptable to you;

2. If you will receive any funds from the continued operation of the business after the sale, do your due diligence on the purchaser – both the reputation and the business experience;

3. Determine any contingencies that may be appropriate (i.e., things that must occur before you will be required to finalize the sale); and

4. All transaction details and contingency items should be carefully drafted into a written document executed by all parties to the transaction.

Continue reading " Living the Dream - Selling a Business (the Prequel) " »

Investors who bought Washington Mutual Inc. shares in three different offerings between 2005-2008 have been authorized to bring a class action suit against former WMI directors, officers, underwriters and auditors.

A Seattle federal district judge granted certification to the class last week and ordered the shareholders and the defendants to go to mediation. In order for a class action suit to be filed, certain requirements must be met.

Different jurisidictions have different rules but most jurisdictions require that there are several affected plaintiffs, that it would be judicially efficient to litigate one claim instead of several, and the defendant(s) wrongful actions must have been similar in nature.

Currently, WMI is in Chapter 11 bankruptcy and trying to devise a plan to reorganize its business. Directors, officers and other particular entities owe duties to its shareholders and in many instances are considered fiduciaries to the company.

In particular, the duty of care and loyalty are commonly breached and litigated upon. Directors and officers owe a duty of care to shareholders. Basically, they have to make decisions that a reasonable, prudent business person would make in the situation. Corporate officers are normally protected from liability by the "business judgment" rule. Summarily, the business judgment rule states that if a business person makes an informed, due diligent business decision, that director or officer will be immune from liability based on that decision. The logic behind the rule is that business persons know best how the business should be operated, not the courts.

The duty of loyalty arises when directors and officers usurp business opportunities that should have been made available to the business first.

To learn more about the lawsuit, visit WaMu Shareholders Win Class Certification in Case Against Former Directors and Officers, Underwriters and Auditor.

If you have questions about director and officer liability, contact an experienced business attorney.

Continue reading " Shareholders of Washington Mutual Inc. are Granted Certification in its Securities Class Action Suit " »

The Florida Consumer Collection Practices Act (FCCPA) prohibits lenders from taking certain actions in trying to collect debts owed to them.

The Act is codified in statutes, § 559.55 to 559.785. Section § 559.72 lists actions that are prohibited and 559.77 provides the civil remedies available to those whose rights have been violated.

For example, 559.72(7) prohibits a lender from willfully making contact with the debtor or his family members to a point that a reasonable person would view that as abuse or harassment. Another example prohibits the practice of pretending to be a law enforcement agent or a representative of any other type of governmental agency.

To view the Act in its entirety, visit Florida Consumer Collection Practices Act.

Federal law also provides a remedy for those that have been wrongfully harassed by lenders trying to collect debts. The Fair Debt Collection Practices Act (FDCPA) can be found in 15 U.S.C. § 1692.

There are very few differences between the two Acts but a claim may be brought under both if the suit is filed in federal court. The FDPCA can be viewed in its entirety at The Fair Debt Collection Practices Act.

Continue reading " Prohibited Lender Practices " »

There is a company called Pellucid Corp that generates an excellent newsletter about the business of golf. This may seem a little “inside the ropes” of the golf industry, but as the PGA of America trainers will tell you – Business is Business. An article in their newsletter equated golf courses with factories and spoke of the difficulties facing 18 hole golf courses during troubled economic times. It noted that one response model would be to increase rounds on the course by reducing the price of rounds. This could increase the number of players – but not necessarily increase revenue. Likewise the cost of operating the course at full capacity would continue to be high. So this was not viewed as having a positive long term effect.

Pellucid suggested that golf course operators find alternative ways to fill historically vacant tee times. In response to protests that “it takes too much time to play,” courses could provide a “short course” or 9-hole round at a reduced price from the standard 18 hole round. In response to protests that the game is “too difficult,” courses could shift tee positions to provide more favorable options for less skilled beginners and other “talent-challenged” players. These changes would permit golf courses to market additional rounds throughout the day to market segments that were not traditionally as active in the game – women, seniors, youth and others.

Continue reading " Business Mantra for Tough Financial Times - "Think Out of the Box" " »

A Federal Court recently sentenced a former DuPont employee to serve 18 months in prison and pay nearly $50,000.00 in fines and restitution for stealing trade secrets. Michael Mitchell worked at DuPont in the sales and marketing department. His primary duty was to market a new material that is several times stronger than Kevlar. Mitchell left the DuPont in 2006 but not without taking several confidential documents containing proprietary information about the new material. He apparently sold and traded the secret documents to his subsequent employers, who were also in the business of distributed Kevlar-like material.

It is unclear exactly how Mitchell was caught, but investigators located the secret documents on Mitchell's personal computer.  It was also revealed that several executives from one of DuPont's competitors once flew to Richmond, VA, where DuPont is headquartered and where Mitchell worked, for the sole reason of meeting with him and obtaining confidential information about DuPont's products.

A trade secret is a process, formula, or pattern that the public is not aware of and cannot reasonably find out.  The information must also confer an economic benefit on the company.  In order to assert rights to a trade secret, the company must take reasonable steps to maintain the secrecy of the information.  As seen in the DuPont situation, it is plain that companies and the authorities may go to great lengths to prevent suspected trade secret theft.

Continue reading " Stiff Penalties For Trade Secret Theft " »

Latisse, an eye-lash enhancing drug, is made by the company Allergan who produces a range of cosmetic medical products and eye drugs. Latisse was invented by a drug maker expanding and isolating the side effect of a particular drug, in this case Lumigan. Lumigan is another Allergan drug with the same underlying drug as Latisse, bimatoprost, and has side effects such as change in eye color and thicker eye lashes.

Latisse was approved in 2008 and has market exclusivity until late 2011. Recently, however, an unnamed drug maker has applied for the U.S. regulatory approval to sell a generic version of the eye-lash enhancing drug before its patent protection expires. In 2012, the patent covering the composition of bimatoprost expires. However, according to an FDA listing, there are other patents in place that cover the method of the drug's use that stretch into 2024.

The application asserted that the applicant believes the current patent is invalid or will not be infringed by the generic. However, even if the challenge is successful, there may not be a generic product on the market for years. Since, under general patent laws, a generic product is automatically stayed for 30-months if a patent owner sues the generic-drug applicant within 45 days of receiving notice of the application. If the suit is not resolved by the end of the 30-month stay, the generic company can launch its product "at risk" and face triple damages if it is not ultimately the prevailing party.

Continue reading " Patent Challenges by Generic Product Manufacturer " »

Having a website for your business can be more important than you think. Not only will internet presence make it easier for customers to place orders, but you may be literally passed by without it. Today, most people say the first thing they do to learn about a new product or service is search the internet. With this in mind, having a website serves multiple purposes. Designating the domain name to include the company's name is an effective and inexpensive way to advertise - especially if the name is commonly searched by customers.

Additionally, a website is open 24 hours a day and 7 days a week.  An internet website is always on, always running, and always opening for business.  Unlike a brick and mortar storefront or office, a website is not constrained by hours of operation and the associated costs of utilities and employees' salaries.  Also, because a website is not anchored to a geographical location, it can be accessible to others in other countries and in other time zones.  This may effectively increase the number of customers learning about your product or service at any given time.

Finally, changes are easy with a website.  Unlike print ads or mailers, which must be reissued and updated at some cost (printing, design and postage) when company or product details change, a website updates almost instantly after changes are made.  This enables updated information to reach consumers quickly and inexpensively without having to issue a new edition or print new postcards.

If you are in the Jacksonville, Florida area and have any questions about what is and is not an acceptable domain name, please contact Wood, Atter & Wolf, P.A. to set up a consultation.

Small and mid-sized business owners have been greatly affected by the ups and downs of the economy and CNNMoney.com published an article suggesting different ways for businesses to get back on track. Financial planners Patrick Collins of Towson, Maryland, who specializes in advising small business owners and Martha Schilling from Upper Dublin, Pennsylvania said if you want to get back on track, you have to take a careful look at what are economic "must-do items" and what are merely "want-to-do items." It may be tough to defer some "want-to" items while you get back on a more solid economic foundation, but trade-offs and deferrals my be essential to your long-term success. For most businesses, three key "must-do" items are the following:

1. As a small or mid-size business owner, pay yourself first. One big mistake many business owners make is that they pay their employees first, and pay themselves with whatever is left over. As a business owner, you should pay yourself the same salary you would pay someone else do to your job. If this creates some red ink, you may have to let someone go. It may not be easy to lay someone off, however, you need to pay your bills as well.

2. Bulk up your "emergency fund" - Small and mid-size business owners with fluctuating income need to have at least 12-18 months worth of living expenses in bank. This amount will help smooth out cash flow and cover unplanned expenses. If you start to see an increase in your business profits, put every extra dollar into your emergency fund.

3. Plan to restart retirement savings. - As soon as you have replenished your emergency fund, go back to making contributions into your 401(k).

To read more on this topic see How to bounce back your small business from financial woes.

Business owners need to have financial plans and strategies in place to stay viable. Contact Wood, Atter & Wolf, P.A. to speak with a business attorney. Legal representation can help you formulate plans to quickly get your business and life back on track.

After a seven year absence, Abercrombie & Fitch brought back its racy A & F Quarterly catalog in the summer of 2010. A & F Quarterly was discontinued in 2003 after complaints about sexually suggestive photographs, but the company never stated these complaints were the specific reason for the U.S. discontinuation.

Abercrombie was one of the hardest hit companies during the recession. Customers stopped buying the company's high-priced flannel shirts and blue jeans and began shopping at its lower-priced competitors, American Eagle Outfitters and Aeropostale. Fortunately, Abercrombie has seen an increase in business during the first half of 2010 due to improved clothing assortments and cost cuts. Howard Tubin, a RBC Capital Markets analyst, rates the company's "Sector Perform" and said he doubts the catalog's return will have a significant impact on earnings. Tubin suggested, however, that the media exposure from the release will be positive for the company. To read more about this topic, see Abercrombie & Fitch Brings Back Racy Catalog. Not everyone is happy with the re-release, however, and conservative groups and news sites rallied in opposition to the publication.

Continue reading " Abercrombie & Fitch, Racy Catalog Returns " »

Recently, many owners of registered trademarks and even owners of nonregistered marks are receiving letters from purported agents of the "Registrar Department of China."

The content of the letter acknowledges the recipient is the owner of a registered trademark in the United States, but says the mark is not being protected in China. The letter is asking the recipient/owner of the trademark to contact the Registrar Department in Shanghai, China immediately to protect its trademark or reserve a domain name incorporating their registered mark.

When contacted, the spokesperson will try and persuade you to take steps necessary to protect your domain name in China by paying for a service that will essentially "register" your mark in China. Furthermore, if you refuse and do not pay for this service, they will claim you will be fined by the Chinese government or that your mark may be taken by some other company in China.

An owner of a US trademark generally only has rights to the trademark in the United States. The United States lacks jurisdiction to enforce our trademark laws against foreign entities. Albeit,the United States has a particular law, instituted back in 1999, that deals with improper use of domain names. The Anticybersquatting Consumer Protection Act ("ACPA") penalizes those who use improper domain names with an intent to commercially gain from using the domain name. However, China has not adopted similar legislation.

Beware of these inquiries; when in doubt, check with an attorney to see if your rights are at risk and, as always, avoid providing personal account information to any skeptical entities. For more information about the emails regarding Chinese domain names, visit Trademark and Domain Name Scams from China.

Continue reading " Beware of China Domain Name Scam " »

Early statistics show that many Florida chartered banks struggled financially this past quarter. Florida chartered banks lost a combined total of $263 million in the second quarter, more than doubling their losses from the previous quarter. The Federal Deposit Insurance Corporation (FDIC), meanwhile, reports that national banks are thriving and are on the rise. What does this mean for Florida citizens and businesses?

It could make small borrowers, frozen out by big lenders in recent months, find it more difficult to take out personal and business loans through local community banks. Further, the loss of local financial institutions may also mean the loss of local jobs.

However, there is another side to this story that has a bit of a silver lining. There are still local, well run, community banks, whose managers took fewer risks in the last few years and by dodging the mortgage crash, may be even more willing to support small business growth today than some national banks. Those banks that took unnecessary risks and have gone under are not around today to compete with the conservative community banks that took fewer risks over the past couple of years. Less competition means more opportunities for surviving banks to expand and prosper. Small businesses should continue to rely on community based institutions as a viable alternative for loans. Small to mid-size business owners who can prepare solid business plans may benefit by developing a relationship with their regional community bank.

For more information about this article, visit Florida Bank Losses Deepen.

Continue reading " Florida Banks Continue to Struggle " »

Have you recently quit or been fired from your job? Did you have health insurance through your employer?

COBRA is a form of insurance that provides "qualified beneficiaries" with health insurance coverage following a "qualified event," such as quitting your job or being terminated.

These determinations are not difficult to understand but do require attention to detail. A qualified beneficiary has 60 days from the time of the qualified event to elect whether or not to continue with COBRA coverage. Let's repeat that - 60 days. If you miss the deadline, you are out of luck.

Once the employee has elected coverage, he or she then has 45 days to pay the first premium. This premiuim payment is going to be much higher than what you are used to because COBRA "plans"can charge up to 102% of the premium rate.

If you file a claim before your first premium is paid, you will most likely have to pay these expenses out of pocket at an uninsured rate and then request reimbursement after the premium is paid. Your employer's plan may state otherwise, so check with your employer prior to taking a "high-expense step" that could wait until COBRA coverage is confirmed and paid. After activation, you should be reimbursed for those expenses according to the plan guidelines if you elected for COBRA coverage.

Employers have an obligation to provide employees notice of their COBRA rights in a timely manner. If you were covered by a health plan while employed, but do not receive a COBRA notice from your former employer after termination - call the HR department and request the notice.

Continue reading " When Fired, How Can I Get Medical Coverage? " »

The IRS' national taxpayer advocate recently said that a provision in the health care reform law could significantly increase tax recordkeeping requirements. This will affect nearly 40 million self-employed workers, small businesses and charities starting in 2012. Each of these entities will be required to issue Form 1099s to every vendor from which they purchase more than $600 worth in goods per year. Currently, Form 1099s are currently only required for payment to independent contractors but not for goods.

According to the IRS, underreported income is a high contributor to the nation's $300 billion "tax gap" - the different between the amount owed to the government and the amount taxpayers actually pay. Nina Olson, an IRS taxpayer advocate, said she is not sure that the information revealed from the new requirement will justify the burden placed on taxpayers. Also, businesses that make "qualified purchases" from more than 250 vendors in a calendar year will be required to file 1099s electronically. Some exceptions to these rules are being considered due to their potential adverse impact on small businesses, which are already struggling to succeed in a difficult economic environment.

For more information on this topic see More reporting for small businesses.

A tax attorney will be able to provide sound guidance on what these new laws mean for the future of your business. Contact Wood, Atter, & Wolf P.A. for legal assistance.

Paul Ceglia, a resident of Allegany County, New York, filed a case in late June 2010 claiming he had a contract with Mark Zuckerber, the founder of Facebook, which gave him a 50% stake in the site and entitles him to 84% ownership in the networking site. Ceglia's complaint prompted Judge Thomas Brown to order a temporary restraining prohibiting Facebook from transferring or selling any of its assets. After being hit with the restraining order, Facebook filed a motion to have the case moved to federal district court in Buffalo, New York. The company stated its belief that the suit is frivolous and its intentions on fighting the suit vigorously. Amongst the company's laundry-lost of objections to the action included that the court's order was issued with proper notice and further that New York's six-year statute of limitations almost certainly bars Ceglia's complaint.

To read more on this story see Facebook's assets frozen. The California-based Facebook responded in August that is suspected that the the contract in question may be a forgery and that it would vigorously fight the claim.

Click here if you would like to see Ceglia's legal filing including the alleged contract.

Continue reading " New York State Court slaps a Temporary Restraining Order on the Social Networking Site, Facebook " »

Employers may receive financial incentives, funded by the state of Florida, by implementing a Drug-Free Workplace. In order to qualify for the incentives, the employer must abide by Florida Statute 112.0455 when testing employees. Florida was one of the first states to enact such a law in 1990.

The Florida statute requires employers to give all applicants and employees a one time notice through a written policy listing numerous matters, including, for example how the employer will drug test (including if reasonable suspicion is suspected), the actions an employer can take based on a positive test by an employee, a statement advising the employee or applicant about the existence of the statutory section, and a general statement about confidentiality.

Financial incentives for drug-free workplaces include reduced premiums for various types of insurance. (Fla. Stat. § 627.0915). The Drug Free Workplace Act provides methods by which employers can fight drug use and provides incentives to employers who maintain a strict policy against the use of drugs.

Continue reading " Florida's Drug-Free Workplace Program and Employee Handbooks " »

XPRT Ventures LLC, a Connecticut-based company, sued eBay, Inc. for at least $3.8 billion when it accused the online auctioneer and retailer of infringing six patents to develop lucrative payment systems. According to the complaint, eBay allegedly stole information that was shared in confidence by the inventors of XPRT's own patents and incorporated certain confidential information into its own payment systems, PayPal Pay Later and PayPal Buyer Credit. Steven Moore, XPRT's attorney stated in an interview that this case involves issues of trade secret theft and sheer patent infringement. In addition to $3.8 billion in monetary damages the Connecticut company is also seeking treble damages, resulting from the "willful and malicious conduct" of eBay and punitive damages and other remedies. eBay affiliates PayPal, Bill Me Later, Shopping.com and StubHub were also names as defendants in the suit. You can read more details of this suit at eBay sued for $3.8 billion in patent infringement case.

Continue reading " Connecticut-based Company, XPRT Ventures LLC, sues eBay and its Affiliates over PayPal Patent " »

Gerdau Ameristeel Corporation, headquartered in Ontario, Canada, was recently bought out by Gerdau S.A., a Brazillian entity. Gerdau Ameristeel was publicly traded on the New York Stock Exchange before the sale, now it will be a wholly owned subsidiary of Gerdau S.A. and will no longer be publicly traded. Gerdau Ameristeel owned the last steel mill in the state of Florida. For more information, visit Court Approves Gerdau Ameristeel deal.

Gerdau Ameristeel has a Baldwin, Florida plant that employs about 300 workers and is a major employer in the Florida town. Gerdau Ameristeel is the second largest minimill steel producer in North America. Its Baldwin facility is part of an integrated network of minimills, steel scrap recycling and distribution lines providing steel to a variety of industries such as construction and cellular and electrical transmissions. Shareholders approved the $1.6 billion deal and an Ontario Superior Court of Justice approved the acquisition last week.

Continue reading " Last Steel Mill in Florida Bought Out " »

Online businesses are a growing trend in today's economy. Overhead costs are low and potential returns are high. In some industries, conducting business online must occur for the business to survive.

But many neglect to check whether they are in compliance with copyright and trademark laws. Infringing upon another's intellectual property rights can be very costly to a business. There are federal and state laws that prohibit infringing upon others registered trademarks and copyrights, including prohibitions against using someone else's protected mark in your web site domain names.

Also, a privacy statement link should be included on your website's homepage. The statement should be clear about the type of security you are providing and what disclaimers you are making.

Continue reading " Starting an Online Business? Don't Forget to Check Infringement Compliance " »

As with any other high-ticket expenditure, considering purchasing a franchise can be a tough decision. There are a number of things to keep in mind in order to avoid surprise.

Franchisees have limited power. There is a misconception that purchasing a franchise is like becoming a partner in the business. This is untrue. Though a franchisee may own the store or restaurant as well as the operations at that location, the franchisor establishes company policy and sets standards for quality control. For example a Burger King franchisee who disagrees with a new pricing structure may suggest alternatives, but is in no position to alter the policy.

Franchisees and franchisors do not necessarily have the same goals. While the franchisee's primary purpose is to meet the needs of consumers, the franchisor's main goal is to recruit more franchisees. Both sides share the common purpose of building the brand, though through different approaches. In this case, the franchisor ensures each franchisee understands the value of the product or service. Also, the franchisor ensures strict compliance with quality control standards. In return, franchisees ensure employees at each location understand their role in the business. Franchisees may also educate the franchisor. Because franchisees interact directly with consumers they are in a position to update the franchisor regarding whether services or products are meeting consumer expectations.

Franchisees have multiple safeguards. The franchisee franchisor relationship is protected by the Federal Trade Commission (FTC). The FTC requires franchisors to follow certain procedural guidelines when limiting a franchisee's earnings. Further protection is provided in the Uniform Franchise Offering Circular (UFOC). The UFOC defines the duties of each party.

The rewards of owning a business are immeasurable.  To learn more about the specifics involved in purchasing a franchise, contact an attorney to arrange a consultation.

Continue reading " Is a Franchise Right for You? " »

Enron litigation continues - resulting in a unanimous US Supreme Court ruling. In a 9-0 vote, the United States Supreme Court curtailed an anti-fraud law that makes it a crime to deprive the public or shareholders of the "intangible right to honest services." In an opinion written by Justice Ruth Bader Ginsburg, the Supreme Court said the anti-fraud law could only be used against bribes and kickbacks. The Court rejected the government's position that the law included self-dealing for no financial gain. As a result of the high court's ruling, part of the convictions against Jeffrey Skilling (former Enron executive) and Conrad Black (former media tycoon of Hollinger International, which once owned the Chicago Sun-Times) were set aside.

Washington defense lawyer Timothy O'Toole said that before the Court's decision the law was considered a general dishonesty-crime law and anything that seemed unethical or sleezy could become a part of a case. With the new ruling, defense lawyers predict that prosecutors may have a harder time winning convictions when money did not change hands or where gifts are not tied to legislative actions. Previously, the law had been a prosecutorial tool that was used to fight corruption, especially among lobbyists. Critics of the Supreme Court's ruling said this tool has now been detrimentally transformed. Daniel Petrocelli, a Los Angeles attorney representing Skilling, said the Court's ruling has paved the way for Skilling's complete exoneration and release from prison. In 2006, Skilling was convicted of 19 counts of fraud, conspiracy and other offenses that prosecutors say helped destroy Enron. To read more details on the Supreme Court's decision see Justices limit scope of anti-fraud law, 9-0.

Continue reading " US Supreme Court Curtails Anti-Fraud Law in 9-0 Vote " »

With Florida unemployment rates at high levels, many displaced employees – executives as well as workers – are examining opportunities to start their own businesses. Deciding on the right structure for that business is an important step in starting the new business off on the right footing.

The proper structure – LLC, corporation, partnership or sole proprietorship – depends on what kind of products or services your business will provide, the owner's appetite for structure and their financial situation. Here are some factors to consider when choosing a business ownership structure:

Complexity – if you are starting your business without a lot of capital and will be essentially operating on a shoestring in the beginning, you may wish to choose a simple structure, like a sole proprietorship or partnership. Corporations and LLCs are more complex corporate structures and more expensive to maintain, requiring careful record keeping and certain operational formalities.

Risk – if you are operating an inherently risky business – for example, trading stock or involved in construction – you will probably want a structure that provides personal liability protection to shield your personal assets from the risk of business claims. A multi-member limited liability company (LLC) or corporation provides this kind of protection. The law in this area (especially with regard to the LLC structure) will be in a state of flux for a period of time due to a 2010 case as to a Florida LLC's ability to shield your business from personal claims. Likewise, a standard corporation will also provide protection from liability.

Taxes – taxes on business profits for partnerships, LLCs and sole proprietorships are all reported the same way: on the personal income tax returns of their owners, who must pay income taxes on all net profits. A corporation may file an S-Corp election to receive the same tax treatment; otherwise corporations pay corporate taxes at special rates on any profit at year's-end.

Raising Capital – a corporate structure allows you to sell shares in your business to raise investment capital. You also may raise capital through bank loans, SBA loans and other government loans as well as from entrepreneurial groups investing in your business.

If you are considering starting your own business and need information on your structure options, contact our Jacksonville, Florida business and tax law firm.

Beginning September 1, 2010, Hampton Golf will be managing Selva Marina Country Club. Memberships to the Club had declined and the owners felt this would be the best move for the Club and its current members.

Selva Marina, founded in 1958, has a rich history in the Northeast Jacksonville area and by no means is Hampton Golf a stranger to managing golf courses. It currently operates nineteen different courses all across the south.

Increased financial commitment to the Club began in 2007 in an effort to revitalize club amenities and to restructure the golf course. Further improvements to the Club can be expectated over the next few years as management seeks to increase memberships. For more information, visit Hampton Golf To Manage Selva Marina.

Continue reading " Selva Marina Country Club Handing Over Management Operations to Hampton Golf " »

There are federal and state laws prohibiting public and private employers from discriminating against employees based on race, color, gender, national origin, age, marital status, handicap or religion.

Most employer-employee relationships are not contractual. In Florida, if employment is agreed upon for an indefinite period of time, an employer may terminate the employee at will as long as the termination is not based on a prohibited basis.

Company handbooks should state policies for terminating employees, but many do not. It is recommended that employers establish clearly that Florida is an employment-at-will state and define the companys' policies on discipline and termination. The company's code of conduct may also be included in its employee handbook, addressing each employee's obligation to act in an appropriate and non-discriminating manner to fellow employees, vendors and customers.

The applicable discrimination laws found in Florida are contained in the Florida Civil Rights Act. If the Florida Human Relations Commission finds cause for bringing a discrimination lawsuit against the employer, it will send notice of a "Right to Sue" to the claimant. Then, the claimant may file a civil suit for damages against the employer.

Likewise, The Equal Employment Opportunity Commission (EEOC) is responsible for federal discrimination claims. Case law suggests that if the EEOC finds cause to bring a lawsuit for federal discrimination claims, separate notice or approval by the Florida Human Relations Commission is not required to bring state law discrimination claims. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex, national origin, and age. The Americans with Disabilities Act of 1990 (ADA), found in Title I and V, prohibits employment discrimination against qualified individuals with disabilities in the private sector, and in state and local governments.

Continue reading " Companies and Discrimination " »

Well, its official. 3G Capital is set to buyout Burger King at $24 a share with the FTC's recent granting of an early termination of the waiting period under the Hat-Scott-Rodino Antitrust Improvements Act of 1976 as amended ("HSR Act"), the transaction is poised to move forward. The tender offer and withdrawal rights are scheduled to expire on October 14, 2010, and certain conditions contained in the tender offer remain open at this time.

The famous Miami based fast food chain announced the news, continuing its favorable impact on the chain's future. 3G is an equity firm that invests in highly traded and well managed companies.

Burger King turned to powerhouses, Morgan Stanley and Goldman Sachs, for financial advising in making the deal.

Experts believe that the deal will allow Burger King to make more debt initiatives and take more risks in an effort to better compete with its number one competitor, McDonalds. Franchise and distributor contracts should not be materially altered or effected by the transition. However, what Burger King has in store for future franchisors remains to be seen. News of the buyout caused a 24% jump in Burger King's stock price in trading immediately after the announcement, confirming market approval of the transaction.

For more information, visit Burger King Acquired by 3G Capital.

Continue reading " Burger King Bought out by 3G Capital " »

Many professionals who have been laid off in recent years have turned valuable skills honed by years inside a corporation into money-making opportunities for themselves by becoming independent contractors. Unfortunately, while many independent contractors rely on verbal agreements, often this leads to lost business and lost revenue. The bottom line - there should always be a written agreement as to the work and the pay.

Items that should be covered in any basic Independent Contractor agreement include:

• The services to be performed (clearly defined)
• Payment for those services and payment terms (fee or hourly rate and any penalties for late payment)
• Reimbursement for expenses (describe the reimbursable expenses, the rate of reimbursal and any necessary approvals)
• Length (or term) of agreement
• Agreement termination rights
• Resolution of disputes and conflicts (including attorney fees and costs, and the state's law you agree to operate under)
• Waivers of liability
• Treatment of confidential information and client lists
• Hold harmless clause
• Execution by all parties

Having a written agreement protects independent contractors in the event of nonpayment, a change in work requirements or a violation of the agreement in any other way. Written agreements also help to establish a person's independent contractor status with the IRS or other government entities, providing Department of Labor protection for both the business owner and the independent contractor.

Independent contractor agreements also offer broad legal protection for both the independent contractor and their client, and help each manage expectations.

If you are an independent contractor – or a business that hires independent contractors on a regular basis – and need assistance with crafting Independent Contract Agreements, contact Wood, Atter & Wolf, P.A., a Jacksonville, Florida business and tax law firm.

What is product branding all about? We all know about trademarks and service marks - - a company develops a word or phrase or design logo that describes their product, they register a trademark with the USPTO and proceed to sell their product under that Mark. That is the basis on which Branding begins. Companies then spend a great deal of time and money “linking” those Marks to some emotion or desire that will motivate the consumer to buy the product or service. They promote the consumer’s belief in their products’ ability to make the purchaser more attractive, more successful, smarter, cooler, more date-worthy, faster, richer and generally more “something.” Branding can be accomplished through television advertising, product appearances in movies, celebrity endorsement, public relations events, print advertising, radio advertising, through the print media and by word of mouth. Most of these branding vehicles are controlled and generated by the owner of the Mark. Successful businesses, both large and small, undertake some level of branding.

Unfortunately, in 2010, some of the best run branding “machines” fell afoul of the one thing they could not control - - the news media and viral internet rants due to SEC investigations, massive product recalls, oil spills and other matters. See The 10 Biggest Brand Disasters of 2010 for more information. The impacted business will likely recover financially from these problems, but it will be a long time before the public’s memory starts to fade.

Continue reading " Branding Takes a Hit in 2010 " »

Prospective employees are asked a wide variety of questions on employment applications. Federal and state law prohibit employers from asking certain questions regarding one's marital status, ethnic background, whether he or she has children, religion, etc. However, in the state of Florida, an employer is permitted to ask whether you have been arrested and/or convicted of a felony.

The Department of Labor, a federal entity, advises that the answer to these questions should not be the sole reason for denying an application.

While it seems rather unfair for employers to be legally entitled to ask whether an applicant has been arrested, an applicant must disclose the arrest if asked on an application. Most employers provide a disclaimer at the end of an application that gives the employer the right to terminate the applicant if any of the information provided is not true or is misleading.

Interestingly enough, if an employee brings a wrongful termination suit against an employer, who was fired for a reason other than false information on the application, even if the employee was not truthful on the employee application, the employee may still assert wrongful termination claims. In that event, the remedies available to the employee may be limited, depending on the facts and circumstances.

An example of the limited remedy - the employee may be denied future wage income and other monetary remedies based on an assumption that had the employer known about the misrepresentation on the application he or she would not have hired the employee. This is a high burden for the employer to prove and is often referred to as the "after-acquired" evidence rule. If the employer can show that the misrepresentation was not minor and was a material nondisclosed fact, the employer will probably be able to avoid liability. As a result, applicants should always be truthful in answering questions. If a question is confusing or you believe it is prohibited by law, ask the employer for clarification or seek an experienced employment law attorney for guidance.

Continue reading " Employee Applications and Telling the Truth " »

The Riverplace shopping center off of San Jose Boulevard in Mandarin was recently bought by Kimco Realty Corporation from Centro Properties Group.

Reports indicate that the center was bought out for $36 million. Kimco is a publicly traded company in the form of a real estate investment trust that has over 1,400 retail stores in 45 different states. In fact, Kimco developed the Avenues Walk off of Phillips Highway and Southside Boulevard.

As to what this will this mean for affected retail stores in the center such as Stein Mart and Petco, Kimco's plans for the shopping center are still undetermined. For more on this sale, see Mandarin shopping center sells for $36M.

The legal implications of this sale - specifically, the impact on existing contracts, or commercial lease agreements, between Centro and the tenants of the center will likely depend on the terms contained in those existing agreements. Prospective tenants should always consider the possibility of such a sale when negotiating their lease agreements. Likewise, existing tenants should consult the terms of their signed lease when it appears that a landlord sale of their business site may occur. This proactive approach to the issue provides tenants the best opportunity to minimize damage to their own businesses due to increased costs or a sudden need to relocate.

Continue reading " Tenant's Lease Rights when Landlords Sell " »