5 Things to Know About Florida Asset Purchase Agreements

Purchasing a new business can be an exciting prospect. However, it is also a complicated one. “The Asset Purchase Agreement is the most important tool for making sure a business buyer not only gets the assets to operate the business but also gets protection against undisclosed surprises that might affect the business’s value.” Business Attorney Trevor Brewer If you are considering a business purchase, it’s a good idea to consult with an experienced mergers and acquisitions lawyer. They can advise you in seeking a business to purchase, negotiating the purchase agreement, and getting your business up and running. In the meantime, here are some basic things you should understand about Florida purchase agreements to buy a business. 1. What Is an Asset Purchase Agreement? An asset purchase agreement is a contract for the sale of a business or specific business assets. These are complex business agreements that can take time to negotiate and finalize. Typically, parties to a business asset purchase agreement in Florida engage attorneys to negotiate on their behalf. 2. What Does the Asset Purchase Process Look Like? When purchasing a new business, there are several steps to complete. Your purchase agreement will typically provide deadlines for completing each of these tasks. Purchase Agreement The first step is to negotiate your asset purchase agreement. This can involve several offers and counteroffers. Your attorney can help you negotiate the finer points of the agreement. We discuss many of these in further detail below.  Earnest Money Typically, the buyer will need to deliver earnest money immediately after signing the asset purchase agreement. Earnest money is typically 5–10% of the purchase price. But the parties can agree in the contract to any fixed amount or percentage. Seller Disclosures Soon after finalizing the agreement, the seller typically must provide disclosures regarding important aspects of the business, such as: Business assets and real property; Intellectual property rights; Stockholders; Subsidiaries; Employees and employee benefit policies; Insurance policies; Outstanding debts; Ongoing legal action; Permits and licenses; Past business performance; and Financial operations. Further, the seller must warrant that the representations are true. Due Diligence Next, the buyer has an opportunity to perform due diligence. This allows the buyer to investigate the claims and disclosures the seller has made. They also have the chance to ask any questions and perform physical inspections of property, equipment, and other assets. Financing If the buyer does not rescind the agreement after receiving the disclosures and completing due diligence, the sale can move forward. If the buyer will be financing the purchase, they will then have some period of time to obtain a loan commitment from their lender. Closing With financing secure, the parties can now schedule a time to close on the purchase agreement. At closing, the buyer will deliver the agreed funds to the buyer. The buyer will deliver any necessary documents, keys, and property to the seller. 3. What Are the Essential Terms of an Asset Purchase Agreement in Florida? Every asset purchase agreement in Florida should specify: The parties to the agreement; The purchase price; What assets are included in the sale; What assets are excluded from the sale; Representations and warranties; and The timeline for completing individual tasks as well as finalizing the agreement. You can find template agreements covering these essential items as well as some boilerplate terms to get you started. However, it’s important to tailor your agreement to your specific needs. Simply filling in the blanks on a generic asset purchase agreement is unlikely to sufficiently protect your interests. 4. What Things Should You Consider Including in Your Business Asset Purchase Agreement? There are a number of important issues you should consider addressing in your asset purchase agreement. Since each business is unique, the terms of your agreement should also be individually crafted to meet your needs. We discuss some common terms below, but your attorney can advise you of additional terms that might be important for you. Non-Compete and Non-Solicitation Agreements If you are buying a business, you will likely want to include non-compete and non-solicitation agreements in the purchase contract. Non-compete agreements must be reasonably limited in time and scope. The agreement should specify: The type of business the seller is restrained from operating; The geographical area of the restriction; and The length of time that the restriction will continue. Florida law presumes that a non-compete restriction against a seller is reasonable if it lasts less than three years. But depending on the circumstances, restrictions lasting as long as seven years may be enforceable. Non-solicitation agreements are also important. They can be drafted to prevent a seller from poaching either your clients or your employees. Without comprehensive and clear non-compete and non-solicitation terms, there are many things the seller can do to undermine your new business. They could start a competing business down the street or lure away your prospective clients, which could ultimately spell the demise of your business. Escrow Hold Back Typically, an asset purchase agreement in Florida will include indemnification provisions. These require the seller to reimburse the buyer for any losses resulting from the seller’s previous operation of the business. For example, if the buyer has to settle a breach of contract claim based on events that occurred while the seller owned the business, the seller would be responsible for the costs of the settlement. When you negotiate your asset purchase agreement, you can request an escrow hold back. This type of provision requires part of the proceeds from the sale to remain in escrow for a particular period of time after the sale is final. If an indemnification claim arises, those funds are then available to compensate the buyer. It helps to guarantee payment from the seller on their indemnification obligations. Seller’s Continued Role in the Business You may want to include terms in your purchase contract relating to the seller’s continued involvement in the business.  In some cases, you may keep the seller on as an employee to operate the business. In that situation,…

Why You Should Hire a Trademark Attorney Instead of Using an Online Service

One of the questions we are asked frequently is, Do I need an attorney for a trademark? The costs of starting a new business can sometimes feel overwhelming. You likely want to do as many things as possible yourself to save money. However, trying to tackle complicated tasks like registering a trademark on your own can be a big mistake. Even taking shortcuts like using an online legal service can leave you with inadequate protection for your intellectual property. While these approaches may save you money in the short term, it can cost you in the long run. “Doing the appropriate research and making the right decisions often make the difference between a successful trademark application and denial.” Business and Branding Attorney Ashley Brewer Before you use an online service like LegalZoom, consider scheduling a introductory phone call with one of our experienced trademark attorneys at BrewerLong. We can talk to you more about the benefits of using an attorney to file your trademark application. Then you can make a more informed decision about whether the services of a trademark attorney would be valuable to your business. Does an Attorney Have to Apply for a Trademark? A person does not have to be a lawyer to apply for a trademark. Anyone can file a trademark application with the U.S. Patent and Trademark Office (USPTO). However, there is more to registering a trademark than simply filling out a form. You need to properly research, identify, and explain your trademark to give it adequate protection. Further, even after you get trademark approval, you will need to monitor your trademark to protect it from infringement. When you file a trademark without an attorney, your application may contain errors that will affect your trademark down the road. In some cases, these errors may mean that your application will be rejected. In other situations, you may not know there is a problem until you try to enforce your trademark later. A trademark attorney can help you avoid these types of errors so your trademark is properly protected. Do I Need a Trademark Attorney? It is always a good idea to hire an attorney to help you with your trademark. Because trademark applications can be complicated, applicants represented by attorneys are 50% more likely to obtain trademark approval than those who file their own trademark applications.  If the USPTO rejects your trademark application, you will need to revise it, refile it, and pay filing fees all over again. Your attorney can help you get it right the first time to avoid delays and extra fees. A lawyer can help you with all aspects of applying for and enforcing your trademark, including: Checking whether your proposed trademark has been registered by another company; Researching whether anyone else is already using your proposed trademark; Advising you on the strength of your trademark; Preparing and submitting your trademark application; Revising your application if necessary; Advising you on steps you need to take to maintain your trademark protection; Monitoring unauthorized use of your trademark; and Enforcing your trademark rights against infringement. Once you register a trademark, the protection it provides does not expire. Nevertheless, you can lose trademark protection by not properly enforcing your rights. The USPTO will not take any steps to enforce your trademark rights. Rather, you are responsible to monitor and enforce those rights. An attorney can advise you on how to do so in light of your individual circumstances. LegalZoom vs. Lawyer Online services such as LegalZoom can provide you basic assistance in filing your trademark. However, they are no substitute for having a lawyer at your side.  Services like LegalZoom take a one-size-fits-all approach to preparing legal documents. Their basic service gives you a step-by-step process, but still leaves you to prepare the application primarily on your own. And even their more advanced service gives you only basic attorney assistance in completing your paperwork and helping with “minor roadblocks.” Indeed, LegalZoom’s disclaimer highlights the many limitations of their services. When you use LegalZoom, your communications are not protected by attorney-client privilege. Additionally, LegalZoom “cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, selection of forms or strategies.” In other words, LegalZoom can get you the right forms and point you in the right direction. But they cannot tailor their services to your specific needs or help you with any serious complications that may arise. A trademark lawyer, on the other hand, can give you personalized service and advice. They will talk to you one on one about your specific needs and goals. They will thoroughly research your trademark to make sure it’s not already in use by someone else. And they can prepare an application that will adequately protect your trademark for the purposes you plan to use it. Further, having an attorney from the outset will make it easier to enforce your trademark against infringement. Your attorney can advise you on how to monitor your trademark. And if you need to file a lawsuit, your attorney will already understand your trademark and its background and be prepared to enforce your intellectual property rights. Getting Started with a Trademark Application If you are ready to start your trademark application, contact the knowledgeable trademark attorneys at BrewerLong. We are dedicated to helping entrepreneurs with all their business’s legal needs. We are prepared to help you protect your intellectual property rights, so you can focus on building your business. Call or contact us today to set up a phone consultation with one of our attorneys.

How to Close Down an LLC

There are different reasons why an LLC, or limited liability company, would close. Sometimes members may wish to retire and have no desire to continue the LLC. Perhaps market growth has slowed significantly, and it is unprofitable to continue operating the LLC. Whatever the reason, correctly dissolving a state-registered entity like an LLC requires multiple steps. Failing to close an LLC properly may lead to unnecessary administrative costs and increased liability. Avoid confusion and a potential lawsuit by learning how to close an LLC in Florida.  The legal obligations of an LLC can continue for years after an LLC is dissolved, and in some cases the LLC’s members can wind up being responsible for those obligations. LLC members should take a thorough approach to dissolving and liquidating the LLC, to avoid costly surprises in the future. Business Attorney Trevor Brewer When Can You Dissolve an LLC? Typically, the operating agreement for your LLC dicatest the circumstances where you can dissolve the LLC. In many cases, the operating agreement will require a vote among members in favor of dissolution.  If no operating agreement exists, Florida law allows you to dissolve an LLC by unanimous written consent of all members. Additionally, Florida law permits dissolution when the following occurs:  No member exists for the LLC for a period of 90 days or more; An entry of judicial dissolution; or The Department of State files a statement of administrative dissolution. You should preserve a record of all documents in the LLC official files. Steps to Close Down an LLC Officially dissolving an LLC requires you to complete critical tasks. Your LLC operating agreement should provide detailed rules on the procedure of dissolution. If you do not have an operating agreement, the dissolution procedure will be governed by the Florida Revised Limited Liability Company Act. Typically, you should expect to complete the following steps. Agreement First, you should schedule a meeting of the members of the LLC to vote on dissolution. Different LLCs have different requirements for dissolution. Some LLC operating agreements require a unanimous vote. Other LLC operating agreements require a majority vote in favor of dissolution.  When reviewing your operating agreement, it’s essential to determine whether specific procedures exist regarding dissolution. The operating agreement may require advance notice of the meeting and a particular time for members to vote. Be sure to record the vote in the official minutes of the dissolution meeting. Give Notice Provide notice to all creditors and claimants of the LLC. Additionally, provide notice to any employees of the LLC. Notice provides creditors the opportunity to file any lawsuits against the LLC. Although not required in Florida, it does encourage a smoother dissolution process. Settling all creditors’ claims first allows for worry-free distribution of remaining assets to members.  In Florida, written notice to creditors must include the following information: Description of the claim that claimant may assert; Whether the LLC admits that it owes the debt; Mailing address;  Deadline for confirmation of the claim; and A statement that distributions from LLC will be made to members after the passing of the period without notice. There may be claimants unknown to the LLC. Filing or publishing your articles of dissolution ensures that these unknown claimants receive notice that the LLC is closing down.  Engage the services of a qualified business attorney to consult on how to provide proper notice to creditors for existing and future claims. The process can be complicated. You will want to take steps to ensure that you don’t miss any creditors and that you limit the liability of your members after completion of distributions. Financial Review Before distributing remaining LLC assets to members, review the LLC’s finances. Be sure to pay all outstanding debts and obligations of the LLC. Additionally, there may be bills and expenses in the future that are presently unknown to the LLC. Therefore, it’s important to reserve some LLC funds to cover these unforeseen expenses. The LLC must pay creditors before it can make distributions to members. If you distribute funds before paying creditors, members may be held personally liable to the LLC’s creditors. Taxes When you dissolve an LLC, you need to close all its tax accounts, including paying all tax obligations on the state and federal level. Additionally, if your LLC has employees, it’s essential that all payroll withholding and sales taxes are correct.  Filing a final tax return on the federal and state level must be completed before dissolving a Florida LLC. LLC members must also be prepared to show any gains and losses on their tax returns. Since LLCs operate as pass-through entities, members are personally responsible for paying these taxes. Once all these steps are complete, contact the IRS to close your EIN (employer identification number). Wrap Up Business Florida law provides that upon dissolution of an LLC in Florida, the LLC must cease operations in any other states where it conducted business. You also need to be sure to pay any remaining taxes in all those states. Each state requires different filing and fees to cease operations properly. The experienced team of business attorneys at BrewerLong is prepared to assist clients through this process. Dispose of Assets The final step in a Florida LLC dissolution is distribution. Once all creditor claims and tax obligations have been paid and closed, you can distribute any remaining assets. Distributions to LLC members should be made according to the terms of the operating agreement. Distribution will generally reflect each member’s interest in the LLC. File Paperwork Florida law requires a filing of the articles of dissolution with the Florida Secretary of State. These articles provide the following information: The name of the LLC; The date of dissolution; Whether dissolution was agreed upon by vote or written consent of members;  A statement that the LLC’s obligations, debts, and liabilities have been settled and paid; A statement that distribution of the LLC’s remaining assets to the remaining members of the LLC is complete; and A statement that the LLC has no…

Do You Need to Hire a Business Lawyer

Every business will need to consult a lawyer at some point. Whether you are forming a new business, operating an established business, or winding up a business, you can benefit from the advice of an experienced business lawyer. Many business owners wait to consult a lawyer until they are actually involved in a legal dispute. This is a big mistake that can cost you thousands of dollars.  Although business attorneys can help with litigation, their role is primarily preemptive. They can help you identify potential problems and take action to protect your business. Hiring a business lawyer is like creating a business strategy or buying insurance—you do it to anticipate problems, not to react to them. Some of our work involves getting businesses and business owners out of difficult legal situations. But we much rather focus our time and effort on helping our clients avoid those situations in the first place. Business Attorney Trevor Brewer Why Hire a Lawyer? The needs of each business are different. Some small businesses may be able to operate with minimal legal assistance. On the other hand, larger or more complex businesses may need daily legal advice.  Whether you need to hire a business lawyer and how much assistance you need depends on both the type of business you operate and the specific issues it is facing. Here are some of the specific situations where you should consider hiring a business lawyer. Buying or Selling a Business Buying or selling a business is a complex process. It’s also likely that there’s a lot of money at stake in the transaction. There are several ways to determine the value of a business, and a lawyer can help you determine whether you are getting a fair deal. Your lawyer can also help you conduct due diligence. On the seller’s side, due diligence may include: Disclosing hidden defects or liabilities as required by law; Organizing important documentation to support your valuation of the business; Collecting organizational, financial, and other records that the new owner will need; and Resolving liens or outstanding obligations that may decrease the business’s value. On the buyer’s side, it may include: Reviewing the company’s records and organizational documents; Coordinating with an accountant to review the company’s finances; Collecting information about outstanding obligations that the buyer will assume; Obtaining lists of the company’s assets, intellectual property, contracts, insurance, employees, etc.; and Checking for legal issues that could lead to litigation. At the very minimum, it is important to have an attorney review your purchase contract to alert you to any questionable or unfavorable terms.  Starting a New Business Many people starting a small business try to save money by using online forms. However, taking this route can be a game of Russian roulette. The DIY approach can be sufficient for those who get lucky and never face serious conflicts down the line with business partners, employees, suppliers, customers, etc. But for others, it can end up costing them many times more than what they would have spent hiring a business lawyer in the first place. Some important start-up tasks a lawyer can help you with include: Choosing a business name; Determining the appropriate business entity for your needs; Drafting articles of organization; Registering your business with the state; Obtaining tax ID information for your business; Drafting an operating agreement; Drafting partnership or shareholder agreements; Obtaining appropriate insurance; Identifying licensing and permit requirements for your business; and Reviewing leases or other real estate transactions. Getting these tasks right from the start can help your business operate more smoothly and avoid disputes down the line. Protecting Intellectual Property An attorney can also advise you about the best way to protect your intellectual property. This may include filing for a patent, trademark, or copyright. Your attorney can help you understand when each type of filing might be appropriate. Intellectual property also includes trade secrets, such as secret recipes, algorithms, sales methods, training procedures, and any other internal process unique to your business. Your attorney can suggest appropriate methods to guard these secrets, such as nondisclosure agreements. Establishing Employment Procedures If you have employees, hiring a business lawyer can help ensure you comply with all state and federal employment laws. Your attorney can advise you on things such as: Wage and hour requirements; Workers’ compensation and unemployment insurance; Tax withholding; Employment eligibility verification; Discrimination and harassment; Employee benefits; Workplace safety; Required notices;  Record keeping; and Employment policies. It is easy to run afoul of employment laws if you don’t know what the requirements are.  Establishing Compliance Practices In addition to employment requirements, there are various state and federal laws that regulate different types of businesses. Industries that are heavily regulated include: Financial services, Health and pharmaceutical services, Credit services, Restaurants and bars, Utilities, Marketing, Automotive services, and Sales. An attorney can help you understand the laws that apply to your business and establish procedures to ensure compliance. Signing Contracts Any time your business contemplates entering into a contract, you should consult a business lawyer. Common business contracts include: Contracts with customers, Contracts with suppliers, Employment or independent contractor agreements, Confidentiality agreements, Insurance contracts,  Purchase agreements, and Property and equipment leases. Your lawyer can negotiate with other parties so that you can get favorable terms. They can also help you understand any risks or liabilities the contract may expose you to. Addressing Business Disputes It is essential to hire a business lawyer if you become involved in any type of business litigation. Common reasons for business lawsuits include: Partnership or shareholder disputes, Contract disputes, Property disputes, Personal injury, Employment disputes, and Intellectual property infringement. If you need to enforce your rights, a lawyer can advise you of your options. They can also handle all aspects of the litigation, including filing, discovery, negotiation, and court appearances. If you receive a legal complaint stating that someone has filed a lawsuit against you, you should contact a lawyer right away. You have only a limited amount of time to respond to a lawsuit,…

Buying a Business in Florida 5 things to know

If you are considering buying a Florida business, it is important that you do your research. The seller may be required to disclose certain information. However, it is ultimately up to you as the buyer to do your due diligence and make sure the business is a sound investment. Buying a business in Florida can be a complicated endeavor. It is highly advisable that you consult with an attorney who focuses on business acquisitions to protect your interests. But to get you started, here are 5 things you should consider before you buy a business in Florida. Before closing on the purchase of a business, business buyers must have confidence that they have asked every reasonable question about the business and they have gotten a satisfactory answer for those questions. Business Attorney Trevor Brewer 1. What Is Included in the Sale of the Business? When buying a business in Florida, you should make sure everything you will need to operate the business is included in the sale. Perhaps you just want to buy assets, equipment, and inventory that will allow you to start your own new business. Or perhaps it’s actually the name or other intellectual property of the business you are most interested in.  Whatever your intentions, be sure to negotiate for everything you will need. It’s important to discuss your needs with an attorney and have them look over the purchase contract. This way you won’t be taken by surprise later. 2. How Successful Is the Business? In researching the right business to buy, it is necessary that you have a full picture of the business’s past success and income potential.  Perhaps you are hoping to step into a thriving business and earn immediate income, or perhaps you are hoping to get a deal on a struggling business with the hope of turning it around. Whatever your goals, there are several things you will want to know. The Reason the Owner Is Selling This may be something you need to dig into a bit. It could be that the owner just wants to retire or move onto a different business venture. But it could be that the business has other problems such as: It isn’t as profitable as it appears; It will need to incur a large expense in the near future; Running it is unusually difficult;  The demand for the product or service has decreased; or A new competitor in the area has been luring away business. Ask around town or talk to employees or vendors to see if you can learn what’s going on behind the scenes. Whether the Owner Has Been Making a Living If the owner has to rely on other sources of income to make ends meet, this business may not be as solid as it appears. Ask the owner to let your accountant review their financial records. If you feel like the owner isn’t being transparent about the business’s history, that could be a red flag.  How the Business’s Income Is Affected by Seasonality Most businesses have certain times of the year that are busier than others. But for some businesses, seasonality can be extreme. Is the business located in a tourist area where the population changes seasonally? Does it cater to an activity that is more popular during some parts of the year? Seasonality is not necessarily good or bad, but it is something you want to be aware of before you buy a business in Florida. Will you make enough money during the busy season to make up for the off-season? Does operating a business in this way make sense with your lifestyle? Whether Demand for the Business Is Growing, Shrinking, or Staying the Same When buying a Florida business, you need to take a critical look at the local market. Does demand for the product seem pretty stable, or can you see it changing in the near future? Consider things such as: Whether local demographics are shifting; Whether other businesses in the area are opening or closing; How advancing technology may affect the relevance of the product or service;  How likely changing trends are to affect demand for the product or service; and How steady earnings have been over the past several years. Be realistic about the prospects for your business. You want to make sure that there is going to be continuing demand for the business before you invest in it. 3. What Obligations Will You Be Taking on? If you are purchasing a new business, it may come with obligations as well as assets. You may be subject to any number of liabilities, such as: Existing contracts, Pending lawsuits, Loans, Debts, Unpaid taxes, Warranties, Judgments, or  Liens. Be sure to get a comprehensive list of all these liabilities before you buy a business in Florida. An experienced lawyer can be invaluable in helping you identify and understand existing obligations. 4. Is the Asking Price Reasonable? There are various ways to value a business. The most common include: Market approach: comparing what similar businesses are selling for; Income approach: using the business’s past and future income to extrapolate its value; and Asset approach: determining the value of the business’s assets. You should seriously consider obtaining a professional business appraisal before agreeing to a purchase price. 5. What Kind of Licensing or Permits Do You Need? All businesses require some form of registration, licensing, or permits. Depending on the type of business and where it is located, these may include: A general business permit; DBA (doing business as) registration; Business entity registration; Professional and occupational licenses; Building and zoning permits; Health permits; Liquor licenses and food permits; Tax registration and ID numbers; and Environmental permits. It is important to compile a full checklist of which specific permits you will need and their ongoing cost before buying a Florida business. Talk to an Attorney Before buying a business in Florida, talk to the experienced business acquisition attorneys at BrewerLong. We understand how complex this process can be, and we can…

How to Get Out of a Business Partnership

When you started your business partnership, everything was going great. You and your partner had a great working relationship and envisioned the same goals for your business. However, now it appears you and your partner are moving in different directions, and you may be considering getting out of your business partnership. “Ending a business partnership can be as challenging and emotionally difficult as ending a marriage. The best outcomes are possible when both parties to a partnership can negotiate toward an amicable separation. Unfortunately, it’s not always possible.” Business Attorney Michael Long Learn the signs indicating it may be time to leave your partnership. Then read on to learn how to legally get out of a business partnership. It may be possible to preserve the business—and your relationship with your partner. Signs It’s Time to Leave Your Partnership Partnerships can be challenging to endure if you are always at odds with your partner. You may have started your business with a harmonious relationship, but lately, things have soured. It may be difficult to determine when it’s time to leave your partnership. If you haven’t already, review your partnership agreement to determine if your partner is upholding their responsibilities. Additionally, the following topics provide insight into whether it may be time to get out of your business partnership.  Someone Isn’t Carrying Their Weight  If you consistently feel that you are carrying the burden of keeping the partnership afloat, it may be time to end your business partnership. In a partnership, both partners should have equal responsibilities. It may be time to reevaluate your partnership if you are continually working and strategizing a successful path for your business while your partner reaps the benefits of your efforts. Disagreements  Disagreements in planning business strategies are universal. Learning how to compromise and work effectively with your partner provides a clear path forward. Collaborating on a business strategy regarding finances, personnel, and customer service prevent issues that halt productivity. However, if you and your partner are never in agreement and can’t seem to resolve your conflict, it may be time to legally get out of your business partnership. Different Work Ethic When you started your business partnership, you and your partner may have each possessed a strong work ethic. Driven by the excitement of a new business, you both worked around the clock to ensure success. However, business growth is not always immediate. In the meantime, you may feel that your partner has lost the drive they once possessed. Furthermore, you continue to work diligently, staying focused on the ultimate goal of your business.  You may consider discussing your concerns with your partner. But if your conversations have failed to create change and your frustrations continue, it may be time to leave your business partnership.  Steps to End a Business Partnership  There are several steps you need to take to end a business partnership. Review Your Partnership Agreement  Once you’ve decided to leave your business partnership, review your partnership agreement. The agreement may provide a procedure to leave or end the partnership. If your partnership agreement includes these procedures, review them carefully. Consult with an experienced business attorney to ensure you properly adhere to the agreement’s procedures. An attorney can assist you in avoiding opportunities for future legal conflict. Heeding the advice of a business attorney is likely to end the partnership more smoothly. Inform Your Partner of Your Intent to Leave  If the relationship between you and your partner has soured, informing your partner of your intent to leave may be a difficult conversation.  Prepare for the conversation and prevent retaliatory acts by doing the following:  Put a hold on all credit cards associated with the partnership; Move cash to an account that doesn’t permit immediate withdrawals; and  Cap lines of credit on the partnership. While it may seem excessive, this action may preserve the value of your business partnership. Upon dissolution, there may be proceeds remaining to divide between you and your ex-partner.  Consider All Alternatives  If you wish to continue the business without your partner, consider buying out your partner’s interest. Evaluate the financial and operating consequences of a buy-out. Buying out your partner may result in an entity shift from partnership to sole proprietorship. Consider the tax implications of that transformation. In a possible buy-out, be prepared to negotiate your interest and the value of the partnership. Engaging the services of a business attorney unrelated to the business partnership is important.  Tips to End the Partnership Well  Ending your business partnership is never an easy decision. As you navigate your business partnership’s demise, there are various tips for how to move forward smoothly. Limiting the possibility for conflict between you and your partner ensures the business you created may continue to succeed. Additionally, it may be possible to preserve the relationship with your ex-partner without permanent harm. Calm Communication  It’s crucial to communicate with your partner when you are calm and rational. Avoid, to the best of your ability, personal feelings of anger, resentment, or frustration in any conversations. The ability to separate your own feelings from business decisions reduces opportunities for conflict. Determine Priorities  Before any discussions with your partner, determine your priorities. If you wish to buy out your partner’s interest and continue the business, prioritize how best to achieve this goal. Consult with an attorney to identify any unforeseen obstacles or considerations. Presenting your partner with your plan creates a starting point for conversations regarding the future, or end, of the business partnership.  Create a Dissolution Plan  If dissolving the business partnership is the only way forward, create a plan, preferably with your partner, for dissolution.  Determine a timeline for when the formal dissolution will occur.  Hire a professional to appraise the value of your business. Knowing the value of your partnership allows for more productive negotiations during the dissolution process.  Determine the resolution of payments and any obligations. This includes tax obligations as well as payments to vendors, contractors, and employees.  Why Hire a Lawyer Deciding when…

What-You-Need-to-Know-About-Florida-Trademarks

Operating a business encompasses a lot of things and nearly every aspect requires attention. One of the most important is how potential customers view and recognize your business. A trademark is one way to set your business apart from others. Multiple benefits exist upon deciding to undertake a Florida trademark registration. Companies must always be aware of imitators seeking to engage with potential customers and benefit from your hard work. These imitators can detrimentally affect your business’s reputation by producing subpar products or services. Florida trademark registration is a vital step to protect the future of your business. A company’s names, logos, and designs do more than just identify that company–they add value to the company and its products. Protecting these trademarks is just as important as protecting the company’s cash deposits, equipment, and other tangible assets, if not more so. Florida Trademark Attorney Ashley Brewer What Is a Trademark?  According to the United States Patent and Trademark Office (USPTO), a trademark is “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” Once registered, trademarks never expire. Trademarks rights arise from actual use. They arise from the date of first use for goods and services. Therefore, as long it is in constant use for products and services, a trademark can last forever. Factors to Consider in Choosing a Trademark  Factors to consider when choosing a Florida trademark include the following: Strength of Mark Trademarks range from weakest to strongest depending on how distinctive they are. Trademarks including words or symbols that are unusual or unrelated to the product they represent are more likely to receive trademark protection. For example, Google is distinctive because the word “Google” has no meaning apart from the company’s name. Likewise, Apple has trademark protection for its name and symbol because apples have nothing to do with computers. On the other hand, it would be difficult to trademark the word “ice cream” in connection with your ice cream business. Ice cream is a generic word identifying your product.  Commonality of Mark Whether a Florida trademark is used commonly by other third parties affects the strength of a mark. For example, the term “gym” and “fitness” about a personal gym are likely widespread. Multiple businesses with the same words in the title likely exist. Therefore, it’s important to research similar businesses in your area. Your business name and symbol should be unique to your business. This assures it does not get confused with similar businesses in the area. Long-Term Goals  Examining the long-term goals of your business is also important. For example, let’s say you name your business, “Orlando Press.” Your business begins to grow exponentially, and you wish to expand nationwide. However, you now feel your Florida trademark pigeonholes you to business within Florida state limits. If you can see your business changing in a way that may affect the desirability of your trademark down the road, you should take that into account. Trademark Search Undertaking an extensive trademark search through the national database is vital to the trademark process. The trademark process is relatively straightforward. However, significant delays can occur if you discover your trademark already exists. A trademark database provides information regarding what businesses were first to use a particular mark. The first business to use a trademark has priority over others. Additionally, if you use someone else’s trademark in your business, they may be able to bring a trademark infringement claim against you. Florida Trademark vs. Federal Trademark  There are a few differences to be aware of between registering your trademark in Florida and registering it with the federal government. Florida Trademark Registration Trademark registration in Florida is governed by the “Registration and Protection Acts.”  Registering in Florida does not afford you the same level of protection as a federal registration. While Florida trademark registration prevents others from using your name or design, those protections are limited to use within the state. In Florida, trademark rights exist from the first use of goods and services in commerce. Trademark registration in Florida is valid for only five years. Trademarks may be renewed so long as renewal fees are paid six months before the five-year expiration.  Federal Trademark Registration Federal trademark registration is governed by the USPTO. As long as federal registration renewals are current, registration for a trademark can also theoretically last forever. In contrast to Florida registration, federal registration of a trademark is required every ten years. Renewal fees must be paid six months before each ten-year expiration. Additionally, between the fifth and sixth year, one must file a Declaration of Use. Between the ninth and tenth year, you must submit a Combined Declaration of Use and Application of Renewal. Missing deadlines may result in your registration’s expiration.   Why Should I Trademark? Recognition Trademarks are an essential part of any business. A business’s name and symbol are the definitive ways it is distinguished from other similar companies.  Trademarks make it easy for customers to find you and your business. A trademark symbol captures customer attention and makes your business stand out. Protection Federal trademark registration creates a legal presumption of ownership over that mark nationwide. A Florida state trademark creates that same legal presumption of ownership statewide.  Registering your trademark gives your business the exclusive right to use the trademark connected with the goods and services identified in your registration. Other businesses are prohibited from using your trademark for financial gain. If you discover unlawful use of your trademark, you may file a lawsuit against that person or business.  Value A trademark is an added value to your business. As your business value grows, so does the value of your trademark. Trademarks may also help pave the way for entry into other industries. Trademarks can be bought or sold. They are an asset to any company. They can also be used as a security interest to secure a business loan.  Permanence As provided above, so long as trademark registration remains…

Hiring-Independent-Contractors-vs-Employees

Whether a worker is an independent contractor or an employee impacts company expenses to employ the individual. Additionally, a worker’s classification affects the individual’s rights in the workplace. Correctly classifying worker status is an essential element of Florida employment law.  Growing companies, particularly when they are starting out, often want to minimize their own labor expenses by engaging independent contractors. However, this can backfire, particularly if an independent contract is actually an employee for legal purposes. Florida Employment Attorney Kristi Benson What Is the Difference Between an Independent Contractor and an Employee? The Florida Department of Revenue aids in assessing employee or independent contractor classification. The following nine determining factors aid in the classification: The extent of control the business exercises over the work;  Whether the employee engages in a distinct business;  Whether completion of work is supervised or independent; The level of skill required;  Whether the employer or the worker supplies equipment and tools;  The length of employment;  Whether the job is part of the regular business of the employer; Whether parties believe they are creating an employer/employee relationship; and  Whether the hiring party is a business. Another vital issue in classification questions is whether the individual is financially dependent on the company. An economically dependent individual is likely an employee. On the other hand, a financially independent individual is likely an independent contractor. What Are the Rights of Employees vs. Independent Contractors in Florida?  An employee classification affords workers many federal protections. The Fair Labor Standards Act (FLSA) permits employees to earn federal minimum wage and overtime. Florida sets minimum wage at $8.56 per hour. Federal youth employment standards outline the jobs and number of hours minors are permitted to work. Legally mandated benefits afforded to employees also include workers compensation, unemployment compensation, and military leave.  Additionally, the Family Medical and Leave Act (FMLA) applies to employees.  Employers are subject to record-keeping requirements for all employees. What Are the Benefits of Hiring an Independent Contractor? Hiring an individual as an independent contractor offers businesses multiple benefits.  There is a labor cost reduction in hiring independent contractors in Florida. Companies are not required to pay employment taxes or other benefits. These benefits include retirement, paid time off, workers’ compensation, or overtime pay. The avoidance of these expenses is beneficial for smaller companies with less profit.  Independent contractors provide more flexibility. Businesses typically hire independent contractors on a project basis. Therefore, independent contractors offer more flexibility to businesses. Businesses may scale up or scale down project needs based on customer demand. For example, if your business thrives on project-based production, an independent contractor may be a perfect choice.  Florida independent contractor rules dictate employers have considerably less control over independent contractors. The performance of independent contractors is typically result-based. A standard employee/employer relationship measures performance through everyday observation and monitoring.  Employers are not immediately responsible if an independent contractor is injured while working. Reduced liability exists for claims of wrongful termination, job discrimination, and sexual harassment. Employers may still be liable in certain circumstances as state and federal laws regulate these areas. What Are the Benefits of Hiring an Employee?  The benefits of hiring an employee often outweigh the added expenses to your business.  Generally speaking, employees personally invest in your business. The relationship between an employer and employee may provide increased loyalty, productivity, and engagement. Less employee turnover results in less modifications to a company structure. There are more predictable salary and wage costs to a business. Additionally, investments in training employees provide added benefits to business productivity and success.  In addition to the above points, employers exert more control over employees. Employers determine how, where, and when their employees perform their specified tasks. Increased control allows for uniformity in production and performance by all employees. Further, employers control employee hours of work. For example, an employer may demand that all employees work from 9:00 a.m. to 5:00 p.m.  What Should I Include in My Florida Independent Contractor Agreement?  An independent contractor agreement in Florida can protect you and your business from potential lawsuits or liability. Defining terms of employment and expectations prevents confusion related to worker classification.  You can also use the agreement to support your classification of the worker if a dispute arises later. For example, imagine an independent contractor files for workers’ compensation by claiming they are your employee. However, you have an agreement that outlines responsibilities typical of an independent contractor and states that the person is an independent contractor. You can use this agreement as evidence that the person is an independent contractor and defend against the workers’ comp claim. An independent contractor agreement should include the following key points:  Statement of relationship indicating the worker is an independent contractor; Project description outlining the independent contractor’s responsibilities;  Payment and billing terms;  Project timeline and deadlines; and Non-disclosure terms and confidentiality clauses. Florida’s independent contractor rules do not require independent contractor agreements. However, clearly defining these terms in an independent contractor agreement helps both the contractor and client know what to expect. What Are the Penalties for Misclassification of Independent Contractors?  Florida independent contractor laws charge strict penalties for misclassification of worker status. Unintentional misclassification does not prevent the imposition of penalties. According to the IRS, baseless misclassification of an employee as an independent contractor results in liability for employment taxes for the worker. However, if a reasonable basis exists for the misclassification, relief exists from liability for employment taxes.  Penalties include a $5,000 penalty for each misclassified employee. The IRS may also institute a penalty of 1.5% of the employee’s federal income tax liability and another 20% of the amount of Federal Insurance Constributions Act (FICA) tax that should have been withheld from the employee’s wages. Intentional misclassifications result in penalty increases.  Contact Us Classifying a worker as an employee or independent contractor is a challenging task. Correct classification of workers protects your business from unnecessary penalties and litigation. The attorneys at BrewerLong have extensive experience in the field of employment law. We work…

Why-Ignoring-a-Lawsuit-Summons-Is-a-Bad-Idea-for-Your-Business

As a business owner, receiving a summons for a lawsuit can be a stressful experience. Understanding the proper procedure to defend yourself and your business requires an understanding of legal terms and documents associated with your case. In a civil case, a person files a claim against another. The plaintiff is the party filing the lawsuit. The defendant is the party against whom the lawsuit is filed. Civil lawsuits involve disputes for a monetary award. These types of lawsuits encompass various conflicts, including property damage, non-payment of a debt, and contract disputes. Have you been served with a lawsuit? If so, seeking the counsel of a qualified business law attorney can mean the difference between successfully defending your position and losing a lawsuit. Business owners and officer must always take immediate action when a summons or subpoena has been served. Failure to act promptly could cause serious damage to the company. Business Litigation Attorney Michael Long What Is a Summons? A summons is an official court document requesting action on the part of the defendant. In a civil lawsuit, a summons notifies an individual or a company that they need to defend their position in a case. A summons provides case information, including:  The name of the court issuing the summons;  The name of the party receiving the summons;  The case number; The names of the parties;  A description of the case; and Information for the defendant on response procedure and deadline. In a lawsuit, personal service on the defendant is required for both the summons and complaint. What Is a Subpoena? A subpoena is a document the court uses to compel a person’s appearance at a trial, hearing, or deposition. A subpoena may also direct a person to produce documents or things. Subpoenas are served on individuals or companies referred to as non-party witnesses. A subpoena provides the following information: The court requesting your presence; The case number, party information, and the matter;  The place, date, and time for your appearance;  A statement of the penalty for failure to comply with terms of the subpoena. A subpoena for business records is a demand by the court to turn in specific evidence related to your business. The subpoena will provide the time frame and the particular business documents requested. If you object to the terms of a subpoena, you need to show that valid grounds exist to support the challenge. Grounds to challenge a subpoena include: Improper service; Documents requested are privileged or not relevant; The document request is too vague;  Complying with the subpoena would be too difficult;  The request violates the witness’s privacy rights; and Requiring the witness to respond would violate their Fifth Amendment rights. A subpoena, like a summons, is an official court document. The failure to comply with a subpoena has consequences. The requesting court may find you in contempt and charge a penalty. Penalties come in the form of monetary sanctions, imprisonment, or court orders requiring payment of attorney fees for the filing party.  Why File an Answer?  An answer is a response to the claim filed against you. Once you are served with a summons and complaint, proper notice requirements are satisfied. The summons will provide you with the deadline for filing an answer.  If you do nothing, the party filing the lawsuit may ask the court to grant a default judgment. A default judgment typically gives the filing party everything requested in the lawsuit. If the court grants a default judgment against you, you may be able to ask the court to vacate it in certain circumstances. The most common reason for granting a request to vacate is where the plaintiff failed to satisfy proper notice requirements.  The opportunity to settle your case is always possible. However, settlement negotiations typically do not begin until both parties have responded to the lawsuit. The presentation of evidence permits both parties to assess their respective positions to determine whether appropriate settlement terms exist.  Contact Us Ignoring a lawsuit has serious implications. The knowledgeable legal team at BrewerLong understands the correct procedure and response to defend your position successfully. As a business owner, any diversion away from your operations to respond to a lawsuit means your business suffers. However, the consequences of failing to respond to a lawsuit may sink a thriving business. Our attorneys are available to explain all your legal options regarding your lawsuit. Since 2008, we have maintained an independent, relationship-focused law firm delivering legal services and client experiences of the highest caliber. Time is of the essence, so contact us today.

Is-It-a-Contract-When-Emails,-Text-Messages,-and-Oral-Discussions-Become-Enforceable

Contract disputes may arise when one party didn’t even realize an enforceable contract existed. In Florida, some contracts must be in writing to be valid and enforceable. Some oral contracts are also enforceable. However, evolving technology adds to the confusion regarding valid contracts. Many wonder whether agreements made over email or text message are legally binding. Consulting with an experienced business law attorney assists in answering complex questions related to contracts and contract validity. Today, business is often done quickly and informally over emails, text messages, and other forms of electronic communication. This makes it much harder and much more important to understand when an enforceable contract has been formed. Florida Business Attorney Trevor Brewer What Is a Contract? A contract is a legally binding agreement between two or more parties to do something. Upon formation, a contract requires all parties to agree to perform their duties under the terms of the contract. Failure to perform constitutes a breach. The non-breaching party can sue the non-performing party to either enforce the agreement or obtain monetary damages.  Elements of a Contract  There are three essential elements of any valid contract: offer, acceptance, and consideration. Generally speaking, if these three elements exist, the contract is likely valid and enforceable.  Offer An offer is a written or spoken statement by one individual to another. In other words, the offer expresses an intention to be bound by the terms upon acceptance by another. The Offeror is the person making the offer. The Offeree is the person bound to whom the offer is made.  Although it appears very straightforward, disputes arise between parties as to the existence of an actual offer. One party may believe they made an offer, whereas the other party believes it was just a discussion.  Within the statement itself, the presence of additional factors may indicate whether the statement is an offer. An offer made in jest is not considered valid. For example, a party stating they will sell their company for a $1 will likely not be serious. However, an offer expressing the willingness of the offering party to be held to the terms is valid. Additionally, a statement is more likely to be considered an offer if it is specific with definite terms and conditions.  Acceptance The recipient of an offer must accept, if at all, while the offer is still open. Consider the example of an offer that provides, “I will pay you $1,200 for your car if you accept within four days.” If the receiver of the offer fails to accept within four days, the offer will no longer be valid. The receiver of the offer cannot accept the offer after seven days have passed.  A counter-offer is not an acceptance of the original offer. However, if the original Offeror accepts the terms of the counter-offer, that creates a valid contract. Acceptance comes in many forms. Reasonableness is the more general standard for determining whether acceptance is valid. Additionally, the “mailbox rule” provides that written acceptance of an offer is valid once placed into the mailbox. For example, the Offeror submits an offer. The Offeree mails acceptance of the offer and puts it in the mailbox. After the Offeree places the acceptance in the mailbox, the Offeror withdraws the offer before receiving the acceptance. In this situation, pursuant to the mailbox rule, the Offeree can enforce the terms of the contract despite the Offeror’s attempted withdrawal.  Consideration Consideration is the third element of a valid contract. It is also referred to as “the benefit of the bargain.” Consideration is a legal concept describing something of value exchanged for something else. The presence of consideration distinguishes an offer from a gift. For example, if someone said, “I am going to give you this jacket for nothing,” this exchange would likely be a gift. By contrast, if someone said, “I will give you this jacket for $20, and the other party agreed to pay, this would constitute a valid contract. The exchange of something of value, here the jacket, for another thing of value, $20, fulfills the consideration requirement.  When Is a Contract Enforceable? The presence of the elements mentioned above supports a valid argument for the existence of a contract. However, the form of a contract may affect its validity.  Is a Verbal Agreement Legally Binding?  A verbal contract is one formed in the absence of a writing. In Florida, specific contracts must be in writing. If made verbally, they are unenforceable. Contracts required to be in writing are the following:  Property transactions;  Goods transactions with a value over $500; Marital settlement agreements and premarital agreements; and,  Contracts with a completion date longer than 12 months. However, verbal contracts that pertain to other types of agreements can be legally binding if they contain all the necessary elements of a contract. Is an Email Agreement Legally Binding?  Today, the majority of communications are online. This fact leaves many wondering whether email communications can be considered a contract. Florida has adopted the Uniform Electronic Transaction Action (UETA). The UETA provides that electronic communications are sufficient to satisfy any statute requiring a contract to be in writing. Therefore, an email is sufficient to form a contract as long as the required elements of a contract are present. Additionally, in Florida, a binding contract can be found even without written signatures. Simply signing an email with your name is often sufficient. If a person uses contractual terms in the course of multiple email communications, a valid contract may be found. You may avoid inadvertent contracts via email by stating that your negotiations are “subject to contract” and that you don’t intend the communications to be binding. Are Text Messages Legally Binding?  Subject to the UETA, a contract can arise though any electronic medium, not just email communications. Therefore, although a chain of text messages may seem casual and, therefore, unenforceable, the UETA says otherwise. If a chain of text messages includes necessary contractual language, the text messages are legally binding.  It’s important…