If you are thinking about starting a business, there are many things you need to know about the importance of hiring a lawyer. Many entrepreneurs in Florida have exciting and innovative ideas for creating a new business venture or running a business, but they may not have experience choosing a business structure. Also, they may not have experience handling day-to-day issues that impact a business, incorporating a business and obtaining licenses and other necessary documents, and managing other legal issues associated with a new company. When you are considering a startup, you may be searching for information with terms like “lawyer for business startup.” The following are some reasons from articles in The Muse and Entrepreneur about why you might need a business lawyer for your startup. Choosing Your Business Structure When you are thinking about starting a new business, one of the first things you will need to do is decide on the best structure for your business. While you might be using the term “startup” to describe your business, as an article in Forbes makes clear, a “startup” is not a business structure. Rather, it is a term that is typically used to describe plans for starting a new business that is “working to solve a problem where the solution is not obvious and success is not guaranteed.” Others might describe a startup business in terms of culture as opposed to business structure, in which you engage in “a culture and mentality of innovating on existing ideas to solve critical pain points,” or when people agree to go into business with you with the implicit acknowledgement that they will “forgo stability in exchange for the promise of tremendous growth and the excitement of making immediate impact.” Accordingly, if you are thinking about a startup, you should begin working with a business lawyer to determine what type of business structure is best for you. The following are among the most common options for businesses: Sole proprietorship: This is the simplest type of business structure, and it is the most common for individuals who plan to go into business solo. If you are thinking about a startup and want to own the business yourself—and to hire employees who will not necessarily have a stake in the business—then a sole proprietorship usually is best. With a sole proprietorship, any expenses and income go through your personal tax return. For legal purposes, you and your business are, in effect, the same entity. This means you are responsible personally for any of the company’s liabilities. Partnership: You can choose between a general partnership where all partners have limited liability (an LLP) or a limited partnership (LP) in which a general partner has unlimited liability and all other partners have limited liability. This is a low-cost type of business structure that is relatively simple, and all profits and losses go through your personal tax return. Partnerships typically are best when two—or only a few—people want to go into business together. Corporation: There are a number of different types of corporations, including the common S-corp and the C-corp. Corporations are much more complicated than sole proprietorships or partnerships, and they cost more to create and to run. Corporations always are separate legal entities, which means that individuals are not personally accountable for the corporation’s liabilities (in most situations), and there is the possibility of higher rewards. Corporations also offer flexibility for companies that may grow substantially. Limited liability company (LLC): An LLC has some benefits of a corporation (liability protection) but without double taxation since earnings and losses pass through to the owners through individual income tax returns. LLCs are also relatively flexible and typically are best for businesses that are just starting out. LLCs can be especially popular for startups. Managing Situations That Require Legal Counsel In addition to choosing a business structure, there may be many legal issues that you have not yet even considered. The following kinds of legal issues may need attention when you are starting out with your startup: State and federal laws: There are numerous Florida state and federal laws that govern businesses in a variety of ways, including taxation. It is important to make sure that you engage in appropriate tax planning, and that you pay careful attention to the state and federal laws that may govern your startup. Managing risk: Whenever you create a startup that involves engagement with third parties (people beyond your business partners, such as employees or suppliers) and members of the public (such as customers), it is important to ensure that you know your rights and responsibilities under state and federal law. For example, you will need to be aware of rights and responsibilities under the Fair Labor Standards Act (FLSA), Title VII of the Civil Rights Act of 1964, and various other laws. Creating a business agreement: Whether you are forming a partnership and need to create a partnership agreement or need assistance with bylaws, it is important to work with a lawyer to ensure that you have methods in place for handling business disputes, unexpected situations, and the possibility of dissolution. Incorporation: If you need to incorporate your business, you will need help from a lawyer to ensure that you provide the necessary documentation for your startup. Employment contracts and hiring employees: When you hire employees, it is essential to understand an employer’s rights and responsibilities, as well as to understand the rights that employees have under state and federal law. We can help you to draft employment contracts, to develop an employee handbook, and to help you manage best practices for hiring. Business contracts: Developing enforceable business contracts with suppliers and other entities can be complicated, but a Florida business attorney can assist you. Contact a Business Law Attorney in Florida Are you thinking about options for a startup? It is extremely important to have an experienced Florida business law attorney to assist you from the early stages of your business. Not only can a lawyer help you to choose…
Buying a business can be exciting, especially when you are purchasing a business that already has been operating for years and has a strong client base. At the same time, however, buying a business can have its limitations. When you are thinking about purchasing a business, it is important to think about protecting yourself from potential liabilities that you could incur as a result of the purchase. In particular, you should think carefully about what you are getting if you are buying a business that has debts. We frequently work with clients who ask: If I buy a business do I inherit the debt? The answer to that question depends on a couple of different factors, including the type of purchase you make. We want to provide you with more information about business sales and situations in which the buyer may be taking on the debt associated with the business. Options for Debt in a Business Sale Generally speaking, when a business has debts and is up for sale, one of the following will occur when the business is sold: Buyer will assume the business debt’ Seller will pay the debt prior to the closing of the sale; Seller will negotiate with the lender to reduce the debt prior to selling the business; Debts will be deducted from the proceeds of the sale of the business. Asset Sales and Business Debts Business owners often make the decision to sell the business because they have debts and want to find a way to get rid of the debt. Some of those business owners assume that simply selling the business means that they are selling all of the business assets and debts to the buyer. However, if you are the buyer, it is important to learn more about where that debt will go if you move forward with a purchase of the business. The first type of sale we want to discuss is known as an asset sale. As an article in The Balance explains, an asset sale means that you are selling the various assets of the business. Assets can include both tangible assets (like a commercial building, inventory, and equipment) as well as intangible assets (such as a client or customer list, as well as goodwill developed through a long-term relationship with customers and the community). If you are purchasing either a sole proprietorship or a partnership, an asset sale is the only way to buy the business. Yet other types of business structures also may be able to be sold through an asset sale. Just because it is called an asset sale does not mean that you are purchasing only physical assets. In some situations, a business buyer in an asset sale also can be purchasing business debt or liabilities of the business. In most situations, the buyer and the seller will negotiate about the assets and liabilities being sold or purchased. For example, the buyer of the business might agree to purchase certain assets for a particular amount of money with the understanding that the buyer is also purchasing certain liabilities. The buyer typically will negotiate with the seller, emphasizing that the debt negatively affects the business and its value, and thus will take into account any liabilities or losses in the total purchase price of the business. Stock Sales and Business Debts The other type of business sale is known as a stock sale or a share sale. In most stock sales, the business debts or liability are included in the sale (and the buyer thus assumes those debts). As we mentioned above, neither a sole proprietorship nor a partnership can be sold like this and would need to be restructured as a corporation to be eligible for a stock sale. Successor Liability and Undisclosed Debt The above scenarios assume that the seller properly disclosed all debts to the buyer when negotiating the sale. However, it is important to be aware of situations in which the seller does not disclose certain liabilities or debts. Through a legal doctrine known as successor liability, the business buyer ultimately may be liable for certain debts of the business even if the buyer did not agree to take on those debts in the purchase contract or agreement. In some cases, the buyer may be able to raise the issue of fraud. Contact a Business Lawyer in Florida If you are buying a business with debt, you should work with a Florida business lawyer on the sale to ensure that you get a fair deal on the purchase. Contact BrewerLong for more information about your options when buying a business in Florida.
When you have a business partnership (or an LLC that is treated as a partnership for federal income tax purposes), profits and losses typically need to be divided or allocated to the partners. This is typically done in a way that corresponds with each of the partners’ percentages of business ownership. If you want to divide or distribute profits in a way that does not correspond with the partners’ percentage interests in your business, then you need to look into something known as a special allocation. You need to be very careful with partnership special allocations of profits and losses for purposes of taxation and the Internal Revenue Service (IRS). Since special allocations can be used in some cases to avoid taxation, the IRS pays special attention to these situations. If the IRS does not believe that the special allocation is legitimate, it can tax all of the partners according to their percentage interests in the business even if there is another agreement—such as your partnership agreement—that says otherwise. To understand how special allocations work, it is essential to learn more about why they occur and how the IRS determines their legitimacy. It is also important to set up your special allocations with the help of a business attorney. Why Businesses Arrange for a Special Allocation When you form a partnership, you will also create a partnership agreement (an operating agreement for an LLC). In a partnership, profits and losses typically get distributed to owners of the business based on their percentage interests in the partnership. For example, imagine a business that has a partnership structure with four partners: Partner A, Partner B, Partner C, and Partner D. Each partner owns 25 percent of the business, or has a 25 percent interest in the partnership. The U.S. Small Business Administration (SBA) makes clear that profits are passed through to the owners’ personal tax returns. In terms of typical taxation for a partnership, each partner will have profits and losses allocated according to his or her percentage interest in the business and then will pay taxes on those profits and losses. In the above hypothetical example, each of the partners would be allocated profits and losses that correspond to 25 percent of the business’s profits and losses, and then would be taxed on that amount. However, there are some situations in which there may be a need for a special allocation. For example, if Partner A provided all of the startup income for the business, the partnership agreement (or an operating agreement in an LLC) might stipulate that Partner A will be allocated 75 percent of the business profits and losses the first year. This accounts for her initial investment, and the remaining three partners will be allocated equal percentages of the remaining 25 percent of the business profits and losses. IRS Issues with Special Allocations and the “Substantial Economic Effect” Test The above hypothetical scenario is a legitimate reason for a special allocation, but the IRS often looks closely at special allocations because they can be a way for the partners to avoid paying taxes. For example, a special allocation could allocate a larger percentage of profits and losses to a partner who can pay fewer taxes due to his or her tax bracket. Accordingly, the IRS looks at a special allocation to decide whether it has a “substantial economic effect.” If it does, the IRS allows the special allocation. The term “substantial economic effect” is a complicated one to understand. In short the special allocation needs to be in line with the economic circumstances of the partners. Given the complicated nature of special allocations, you should always work with an experienced business lawyer to ensure that the special allocation will pass muster with the IRS. Contact a Business Law Attorney in Florida If you are part of a partnership and you have questions about special allocations, it is extremely important to speak with a Florida business law attorney about how these work. You do not want to allocate profits and losses in such a way that violate rules of taxation. An experienced Florida business lawyer at our firm can speak with you today about your business needs and can begin providing your partnership with information about tax law and special allocations. Contact BrewerLong today for more information about how we can help your business.
Not all contributions to a business are financial. For example, John and Jill might form a business. John contributes $50,000 but Jill does all the work. After two years, the business is now worth $150,000, a three-fold increase in value—all thanks to the sweat of Jill’s brow. Sweat equity is the increase in a business’ value thanks to hard work. If you don’t have the funds to contribute to a business, you can contribute in other ways. But you will want a legal document that protects your right to equity. For help drafting or negotiating a sweat equity agreement, please contact BrewerLong today. Our Florida business attorneys can help you with your agreement today. The Difference Between Sweat Equity and Labor Anyone who works for a business contributes to its value (unless they are terrible at their job). For this reason, a company’s employees might increase the equity of the business. But you don’t need a sweat equity agreement for your employees for one simple reason—they aren’t owners and you don’t intend to make them owners. That’s where the “equity” portion of sweat equity comes in. The term refers to an ownership stake in the business, and a sweat equity agreement is only necessary if you want to grant an ownership stake to someone who doesn’t have capital to buy their way in. When You Need a Sweat Equity Agreement If you are forming a partnership, then you probably need a sweat equity agreement. A partnership is an agreement between at least two people to run a venture jointly. Partnerships bind each partner to each other and make them personally liable for business debts. When you form a partnership, each partner brings something to the arrangement, usually start-up capital as well as their labor. You need a written sweat equity agreement in this situation. You might also need a sweat equity agreement if you are forming a different business structure with someone who wants to earn equity by working. This person might not have any capital to contribute or they have some but want to own more equity than they can buy. If you are unsure about whether you need a sweat equity agreement, meet with an attorney to discuss your case. You need to get these documents nailed down before starting your business, so schedule a consultation. What Goes into a Sweat Equity Agreement? You need an equity agreement that is clear and is written with future contingencies in mind. Generally, an equity agreement should contain the following: The total amount of equity that may be earned. For example, you might want to limit it to 50% if you have a two-person partnership. Larger companies often set the limit much lower. You might also want to set a minimum amount. The rate at which equity accrues. One option is to use the person’s salary or rate of pay to calculate equity. If the person is paid $30,000 a year, then they could have this much equity at the end of the year in lieu of a salary. Conversion rates. Will the sweat convert to equity every month? Every two months? Six months? This can matter if the person is gaining voting rights. Vesting period. You might not want the person to immediately start gaining equity, especially if they are new to the business. You could set a six-month vesting period during which their labor will be compensated in cash and then, after vesting begins, they begin to earn equity. Type of equity. Some companies have different tiers of stock. You should identify the type and the quantity the person is earning. Performance criteria. Be very clear about the responsibilities for each partner, which is vital if a partner tackles several roles at once. You also need a section on separation criteria. Unfortunately, business owners jump around, and you can’t expect someone to stay with the business forever. Sometimes, businesses need to eliminate roles against your wishes. You need to spell out in advance what happens to equity in the event of separation. These are only some of the items that should be in a sweat equity agreement. There are many other helpful terms, depending on your situation. Work closely with a Florida business lawyer to draft a sweat equity agreement that works for you. Should You Offer Equity? You don’t have to offer an ownership stake. Instead, you could make someone an employee and pay a salary or wage. Before deciding to grant someone equity, consider the following: How committed is the person to the business? Have they participated enthusiastically in early discussions of the business? If you suspect a person won’t stick around, you might want to forgo giving them equity. Can the person truly increase the value of the business? If not, then they are probably replaceable and should probably be an ordinary employee. Do see eye to eye? A business will flounder if owners disagree on fundamental issues, like the immediate direction of the company and the preferred rate of expansion. Your answers to these questions will also drive the content of your sweat equity agreement. For example, if you are unsure about someone’s passion or commitment, you might have a lengthy vesting period to protect yourself. Experienced Business Lawyers If you are forming a business, or if you are taking on a new owner, you should carefully cross all your T’s and dot all your I’s. The proper legal documents can help minimize disputes later, which can save your business time and money. Contact BrewerLong today. Our Florida business lawyers have drafted or negotiated many sweat equity agreements. We will identify what you hope to accomplish with this agreement and then tailor it to fit your needs. You can contact us or, call 407-660-2964 for a free introductory phone call.
Businesses take a lot of elbow grease to get up and running. After years of promotion and providing quality work, you might find that you grow so successful that you suddenly are in the cross hairs of some very unsavory people. Many businesses can go decades without confronting serious legal issues, but many eventually find themselves the targets of attacks on their reputations. When an individual is lied about and suffers injury, they might have a legal claim for defamation. Businesses that are lied about also have legal rights, and in Florida they can bring a lawsuit for business disparagement. Also called commercial disparagement, business disparagement cases are complicated and very difficult to bring successfully, requiring detailed evidence of what was said about your business and how it has harmed you. For more information, please contact a business law attorney to begin building your case. What is Business Disparagement? You can’t bring a lawsuit for business disparagement simply because you are unhappy about what a competitor or a member of the public has said about you. Instead, you need to prove the following elements: The statement was false. The person making the statement intends for you to suffer financial loss and your business does suffer loss. The person making the statement knew it was false or did not have any concern whether it was true. For example, a competitor might claim that you hire illegal immigrants as workers, which makes you the focus of negative press stories. Customers might also leave you, costing you money. If the competitor made the claim knowing this would hurt you financially, and if the statement is false, then you might have a legal claim. Defenses to Commercial Disparagement Based on the elements listed above, you can tell when you will not have a commercial disparagement case. For example, if the statements made about your business are true, you don’t have a case. Only false statements are actionable. Also, an opinion is probably protected as well. Someone can write on a Yelp review, “I thought the food was terrible” and that is not disparagement because it is an opinion not a statement of fact. By contrast, if someone claims to have found an insect in their food when there wasn’t one, then this is an obvious lie. Second, your business actually has to suffer financial losses. Many negative things are said about businesses all the time and the public just overlook them. A negative statement might hurt your feelings as a business owner, but you need to suffer real losses to bring a lawsuit. The person making the statement also had to intend for you to lose or business or have known that the statement would reasonably cause you to lose business. Third, the person making the statements either must know they were a lie or couldn’t be bothered to check their veracity. This requirement protects someone who tries to confirm the statement before publishing it, such as a journalist who does research to confirm the truth. Even if the statement is false, the journalist didn’t know it was false or recklessly publish it, so the defendant probably has a defense. How Much Compensation Can a Business Receive? If your business has been disparaged, you can bring a lawsuit for compensation. This money should make up for your losses and put you in the position you would have been in had the false statements never been made. Keep careful record of lost sales or lost business contracts. Typically, you need detailed proof of the amount of money that you have lost, otherwise you will receive only nominal damages. You might also be able to receive money for loss of your reputation. Work with an attorney for help documenting everything. Has a Competitor Lied about You? Contact a Business Lawyer Today The marketplace is cutthroat, and competitors sometimes make false statements that they later regret. They can try to get an unfair advantage by outright lying about your business in the hopes of persuading people to not do business with you. If you have been victimized by commercial disparagement, contact BrewerLong today. Our Florida business lawyers have years of experience in this area of law and know how to bring a successful claim. For a free introductory phone call, please reach out to us at 407-660-2964.
Trademarks, like other intellectual property, are very valuable. Today, much of a business’ value is in intellectual property, as opposed to goods or other physical assets. Many business owners consider trademarks the most valuable form of intellectual property, because they represent your brand. One day, you might face difficulty with someone illegally using your mark. It’s a good idea to understand the statute of limitations for trademark infringements, so you know how to protect your rights. WHAT EXACTLY IS A TRADEMARK? A trademark is a word, phrase, or symbol which lets consumers know the source of a product or service. Usually, it’s a brand name or logo. Your trademark is valuable because, without it, your customers wouldn’t know the source of your products or services. When someone uses your trademark without permission, they are illegally trying to gain the benefit of association with your company. WHAT HAPPENS IF SOMEONE STEALS MY TRADEMARK? If someone uses your trademark without your permission, they could be harming your business. After all, if your customers have come to depend on your quality, a counterfeiter could be ruining your reputation. Illegal use of a trademark is called “infringement,” and you can sue to protect your rights. If you win, you can receive compensation from the infringing party. You can also block them from using your trademark in the future. DO I NEED TO REGISTER MY TRADEMARK? Businesses have rights in trademarks, whether they are registered or unregistered. But, it’s a good idea to register trademarks with the United States Patent and Trademark Office (USPTO) for added protection. Registering with the USPTO gives you national protection in your trademark. It also means you automatically have the right to sue in federal court. If someone is infringing on your trademark, you should contact a Florida intellectual property lawyer to protect yourself. WHAT ARE STATUTES OF LIMITATIONS? You will find statutes of limitations throughout the law. They set out how much time a person or business has to sue if someone has violated their rights. Courts have an interest in deciding cases with fresh evidence, and they don’t want injured parties taking forever to bring a lawsuit. Statutes of limitations operate to make sure injured parties file lawsuits promptly. If you wait too long to sue, a judge will throw your case out of court. This means no lawsuit, no compensation, and potentially more infringement. WHAT IS THE TRADEMARK INFRINGEMENT STATUTE OF LIMITATIONS? Most trademark cases fall under federal law, specifically the Lanham Act. Suing under the Lanham Act allows a business to get into federal court, which has advantages, like the possibility of high monetary damages. You can also tack on state law claims. Interestingly, the Lanham Act does not specify a statute of limitations for trademark infringements. This means that judges must determine an appropriate amount of time to give injured parties to sue. They do this by applying a concept called “laches.” Laches is an equitable concept. It prevents lawsuits when it wouldn’t be fair to ask the defendant to defend themselves, because too much time has passed. When deciding whether to apply laches, federal courts look to similar state law claims and check their statutes of limitation. For example, one district court looked at state unfair competition claims as an analog to trademark infringement. A Florida unfair competition claim has a four-year statute of limitations, so a court will expect an injured party to file a lawsuit within that window of time. Under this analysis, the clock will start running once you have a valid claim for infringement. “Valid claim” means when there is a likelihood of confusion in the marketplace caused by the similar trademark—which might be later than when you first discover the mark. HOW TO BUILD A CASE FOR TRADEMARK INFRINGEMENT As soon as you notice infringement, you should document the unauthorized use of your trademark and contact a Florida intellectual property attorney. For example, if you see a trademark very similar to yours used on a product, buy the product and keep the receipt to show the date you purchased it. If you see a trademark on a website, print off the website and make sure the date is visible. Your attorney will want to see the extent of the use, which can help in an investigation. You should also move quickly. Technically, as discussed above, the statute of limitations period doesn’t start until consumers may be experiencing confusion about the two trademarks. If your competitor has no market presence, there probably is no confusion yet. However, you need an attorney’s advice about the correct time to sue. One of the worst mistakes you can make is to delay taking legal action because you don’t think someone is harming your company. It’s better to be safe than sorry. “More than ever, the value of a business is in its Trademarks-its name, brands, and logos. Just like taking steps to protect your home or office from theft, business owners must protect their businesses from trademark infringement.” BrewerLong Attorney Ashley Brewer CONTACT A FLORIDA INTELLECTUAL PROPERTY ATTORNEY NOW You’ve worked hard to increase the value of your brand, and your trademarks are a key part. If you learn that another business is using a similar mark as yours, you might need to sue to stop its use. Contact BrewerLong today. Our Florida business lawyers have decades of combined experience in this area of law, and we are anxious to help you protect your business. You can reach us today for a free introductory phone call by dialing 407-660-2964.
When a business or an individual has an idea that they want to protect from being used by others without their permission, it is best to seek legal protection of that intellectual property. By seeking property rights over your intellectual property — property that is a creation of the mind, such as an invention, symbol, or even a name. You establish rightful ownership and prevent the unlawful use of your property. What’s more, establishing intellectual property rights can help to fuel the economy and stimulate further innovation. There are four main types of intellectual property protections, reviewed below. Work with an experienced intellectual property attorney to learn more about steps to take to secure the necessary protection for your intellectual property. Four Types of Intellectual Property Protections There are four types of intellectual property rights and protections (although multiple types of intellectual property itself). Securing the correct protection for your property is important, which is why consulting with a lawyer is a must. The four categories of intellectual property protections include: Trade Secrets Trade secrets refer to specific, private information that is important to a business because it gives the business a competitive advantage in its marketplace. If a trade secret is acquired by another company, it could harm the original holder. Examples of trade secrets include recipes for certain foods and beverages (like Mrs. Fields’ cookies or Sprite), new inventions, software, processes, and even different marketing strategies. When a person or business holds a trade secret protection, others cannot copy or steal the idea. In order to establish information as a “trade secret,” and to incur the legal protections associated with trade secrets, businesses must actively behave in a manner that demonstrates their desire to protect the information. Trade secrets are protected without official registration; however, an owner of a trade secret whose rights are breached–i.e. someone steals their trade secret–may ask a court to ask against that individual and prevent them from using the trade secret. Patents As defined by the U.S. Patent and Trademark Office (USPTO), a patent is a type of limited-duration protection that can be used to protect inventions (or discoveries) that are new, non-obvious, and useful, such a new process, machine, article of manufacture, or composition of matter. When a property owner holds a patent, others are prevented, under law, from offering for sale, making, or using the product. Copyrights Copyrights and patents are not the same things, although they are often confused. A copyright is a type of intellectual property protection that protects original works of authorship, which might include literary works, music, art, and more. Today, copyrights also protect computer software and architecture. Copyright protections are automatic; once you create something, it is yours. However, if your rights under copyright protections are infringed and you wish to file a lawsuit, then registration of your copyright will be necessary. Trademarks Finally, the fourth type of intellectual property protection is a trademark protection. Remember, patents are used to protect inventions and discoveries and copyrights are used to protect expressions of ideas and creations, like art and writing. Trademarks, then, refer to phrases, words, or symbols that distinguish the source of a product or services of one party from another. For example, the Nike symbol–which nearly all could easily recognize and identify–is a type of trademark. While patents and copyrights can expire, trademark rights come from the use of the trademark, and therefore can be held indefinitely. Like a copyright, registration of a trademark is not required, but registering can offer additional advantages. Consult with an Intellectual Property Attorney to Learn More Understanding the different types of intellectual property and the four categories of intellectual property protections can be confusing, and actually registering for those protections can be overwhelming. Indeed, businesses often have more to worry about that the particulars of a patent or other intellectual property protection requirement. When you call our intellectual property attorneys at the offices of BrewerLong, we will handle all of the elements associated with your intellectual property protection, ranging from identifying the type of intellectual property protection you need to be managing all documentation and paperwork to secure that protection. We can also help your business to take action if you believe that another party has breached your intellectual property rights. To schedule a consultation with our lawyers, please call us directly or send us a message. Our Florida business lawyers are ready to start advising your business on its intellectual property rights today.
All businesses rely on contracts with other parties in order to operate smoothly and efficiently, as well as to grow and protect business interests. From contracts with sellers to employees, other businesses to third parties, contracts are essential to business operations. While contracts are legally-binding agreements that require all parties named in a contract to act in accordance with the provisions of the contract, sometimes, contracts are breached. When a breach of contract occurs, a business may maintain the right to bring forth a tortious interference claim against a third party whose actions caused the breach. If you think that you have a claim for tortious interference, Florida business dispute lawyers at the office at BrewerLong can provide you with aggressive representation and advise you of your rights and options. Call our law firm today to get started. What Is Tortious Interference? As defined by the Legal Information Institute of Cornell Law School, tortious interference refers to a type of common law tort that allows a party to bring forth a claim for damages against another that has “wrongfully interfered with the plaintiff’s contractual or business relationships.” A such, there are actually two types of tortious interference claims: tortious interference with a contract, and tortious interference with a business relationship. A tortious interference claim is not a criminal act, and a party named in a suit will face no criminal penalties; rather, if the plaintiff’s tortious interference suit is successful, the defendant will have to pay damages to the plaintiff. Examples of Tortious Interference When one party (a defendant in a tortious interference case) intentionally interrupts, disrupts, or interferes with the contractual relationship that one party holds with another, a claim for tortious interference may exist. A few examples of tortious interference include: A vendor offering unreasonably low prices to a buyer, resulting in the buyer breaching a contract with another business; A third-party blackmailing a business or another party; and Refusing to perform a duty or obligation (such as the delivery of goods) that impairs the plaintiff’s (business’s) ability to satisfy its own contractual obligation. The above are just a handful of tortious interference examples; tortious interference occurs any time that a third party interferes with the relationship or contract that exists between two other parties. What Are the Elements of a Tortious Interference Case? In order to bring forth a successful tortious interference Florida case, each of the elements of tortious interference must be established. Our lawyers will guide you through each element and be responsible for gathering evidence to satisfy each. These elements include: A contractual business relationship or an advantageous business relationship existed between the plaintiff and another party; The defendant (third party) knew of the contact or the relationship; The defendant acted intentionally to disrupt the relationship or/and induce one party to breach the contract with the other; The defendant’s actions were unjustified; and The plaintiff suffered damages as a direct result of the interference. Further, it is critical that the plaintiff can establish causation – that the breach of contract or disruption of advantageous business relationship would not have occurred but for the intentional and unjustifiable interference of the third party. Damages Available through a Tortious Interference Claim Following tortious interference, Florida businesses who have been affected maintain the right to seek damages from the defendant. These damages will be economic in nature and are intended to compensate the plaintiff for the losses suffered that would not have been incurred but for the defendant’s tortious interference. Damages are calculated based on actual losses, and therefore vary on a case-by-case basis. Statute of Limitations If you think that you may have a tortious interference claim, Florida law requires that you bring forth your suit within four years from the date of cause of action. However, it is best to bring forth your claim as soon as possible, as evidence can be destroyed, and facts can be blurred after too much time has passed. How Can a Business Attorney Help? If you believe that your business has a tortious interference claim, working with a skilled attorney is absolutely essential. An attorney can review your case, advise your business of its rights and what steps to take, gather evidence on your behalf, analyze contract language and any breaches of contract, negotiate a settlement, and more. Failing to work with a skilled attorney is an oversight that your business cannot afford. To schedule a consultation with our Florida business and tortious interference lawyers at the law offices of BrewerLong, please call our legal team directly or send us a message. We have the experience and skill set that your company requires.
Businesses profit, gain, and grow as a result of the exchange of monies, ideas, products, services, or a combination of the above with other parties. Often times, these exchanges are specified in contractual terms – i.e. a seller provides a product to a buyer in exchange for monetary compensation. While the terms of a contract and an exchange are typically carried out in a manner that is just and fair, if not beneficial, for all parties involved in the exchange, sometimes unjust enrichment occurs. When one party believes that they have an unjust enrichment claim, they maintain the right to seek remedy from the other party in a civil action. Our unjust enrichment lawyers in Florida at the law office of BrewerLong can assist you in understanding the elements of an unjust enrichment claim and how to bring forth a successful claim. What Is Unjust Enrichment in Florida? When one party benefits at the expense of another, they may have a claim for unjust enrichment. Florida unjust enrichment occurs when one party “confers a benefit upon” another party without “receiving the proper restitution required by law,” as defined by the Legal Information Institute of Cornell Law School. It is important that unjust enrichment is distinguished from a gift, which is where one party gives something to another without the expectation of restitution or compensation. When a gift is given, the party who receives the gift has no legal obligation to give something in return. According to the same source cited above, unjust enrichment typically occurs when one party fulfills their obligations in a contract and the other party fails to fulfill their obligation. For example, if a contract exists between Party A and Party B that specifies that Party A will deliver goods to Party B, and in exchange, Party B will pay Party A a specified sum, unjust enrichment occurs when Party A delivers the goods, but Party B fails to offer Party A the amount of money stated in the contract. However, a contract does not have to exist for an unjust enrichment claim to be brought forth. Proving Unjust Enrichment – Florida Civil Law An unjust enrichment action is not a type of criminal claim, and therefore, there are rarely criminal consequences imposed on a party who benefits at the expense of another. Instead, unjust enrichment is a type of civil action, and therefore, a party who files an unjust enrichment claim does so for the purpose of recovering civil damages (restitution in the form of monetary damages). In order to win a claim of unjust enrichment, the plaintiff, who has the burden of proof, must demonstrate that the defendant benefited–was “unjustly enriched” –at the plaintiff’s expense. The elements that must be established to prove this include: The plaintiff conferred a benefit on the defendant; The defendant either accepted the benefit voluntarily without coercion or requested the benefit; The defendant did not pay or otherwise offer the plaintiff compensation for the benefit conferred; and The flow of benefit to the defendant without recompense to the plaintiff is deemed inequitable. Again, an unjust enrichment claim does not exist if the plaintiff bestowed the benefit on the defendant as a gift. Another bar to an unjust enrichment claim exists in the event that the defendant did not have a choice or option to reject the benefit. Unjust Enrichment Florida Statute of Limitations If you believe that you have an unjust enrichment claim in Florida, it is important that you consult with a qualified attorney as soon as possible and that you bring forth your action within the statute of limitations. The statute of limitations for an action of unjust enrichment in Florida is four years. Speak with a Knowledgeable Lawyer Today If you provide a benefit, service, or product to another party, you maintain the right to be compensated fairly and equitably for that benefit. If you are wrongfully denied the benefit that you deserve, you may have an unjust enrichment claim. Our unjust enrichment Florida lawyers at the office of BrewerLong are prepared to build your case and represent you in your claim for restitution. Please contact us online or by phone to schedule a consultation and learn more about how we can be of service.
Establishing and operating a business is something that not only demands hard work, intellect, and creativity. Also, it requires adherence to various laws, business regulations, and best practices. For many businesses, establishing a fictitious name is one such step that a business may take in order to protect their best interests. Establishing a fictitious name, though, is a legal process that a business must take care in performing. At the law offices of BrewerLong, our Florida business lawyers can guide you through fictitious names in Florida, as well as how to cancel a fictitious name in Florida. Please contact our lawyers today to learn more. What Is a Fictitious Name? As found in Florida Statutes Section 865.09, a “fictitious name” is defined as any name under which a person transacts business in this state, other than the person’s legal name. For businesses, operating under a fictitious name is very common, and is known as “doing business as,” or DBA, another name. For example, if Jane Doe establishes a bakery, rather than operating as “Jane Doe,” she may decide to operate as “Sweets and Treats.” This means that Jane Doe is doing business as “Sweets and Treats,” and that she has established a fictitious name as such. Registering for a Fictitious Name in Florida Most businesses, even sole proprietors, want to establish a fictitious name – this is a common practice. In order to establish a fictitious name in Florida, registration with the Florida Division of Corporations is required. The process for registration is straightforward, and can be done online or by mail. All of the instructions for fictitious name registration can be obtained online. How to Cancel a Fictitious Name in Florida For a range of reasons, a business owner may wish to change or cancel their fictitious name at some point, perhaps because they wish to do business in their actual legal name, because they want to change the name to something else, or because they are dissolving their business. In any case, it is important that the business owner understand the requirements for properly canceling a fictitious name in the state. In order to change or cancel a fictitious name, use the Fictitious Name Registration application (accessible online). According to the Florida Division of Corporations, completing sections one through four of the application can simultaneously cancel and re-register a fictitious name. These sections include questions about the fictitious name of the business, the business’ mailing address, the FEI number of the business, the registrant’s name and address, and a signature. For cancellations only, only section four of the form must be completed. This section clearly states that the registrant is canceling the fictitious name – the registrant must provide the date that the fictitious name was originally registered and the assigned registration number. In addition to the cancelation form, a fee of $50 must be paid. Additional fees may be paid for a certificate of status or a certified copy. Working with a Lawyer When Establishing or Canceling a Fictitious Name If your business wants to establish or cancel a fictitious name in Florida, working with a lawyer is strongly recommended. The benefits of working with an attorney are numerous, including: Ensuring that you register for a name that is not already in use; Ensuring that all paperwork related to the registration of a fictitious name is filled out accurately and in full; Managing all filing of paperwork and the payment of applicable fees; Guiding your business through the benefits of fictitious name change or cancelation; and Managing the re-registration/renewal of a fictitious name. As a business owner, there are numerous things that you must deal with on a daily basis to ensure the smooth operation of your company. When you hire a skilled attorney to manage things such as fictitious name registration and cancellation, you have one less thing to worry about that demands your personal attention. This allows you to focus your efforts on other important elements of running your company and provides peace of mind that legal elements are being handled properly. Call Our Florida Business Lawyers Today Most business owners choose to register a fictitious name rather than do business in their own, personal legal name. However, there may come a point when a business wishes to cancel or change their fictitious name. Whether you need assistance in registering for, canceling, or changing your business’ fictitious name, our business lawyers in Florida are ready to assist you. We have been providing legal services to businesses throughout the state for years and are knowledgeable in all areas of business law and the many requirements that businesses in our state are bound by. To schedule a consultation with our Florida business lawyers, please call us directly or send us a message. We help to protect your best interests.