Trademarks, like other intellectual property, are very valuable. Today, much of a business’ value is tied up in intellectual property as opposed to goods or other physical assets. When someone uses your trademark without permission, they are illegally trying to gain the benefit of being associated with your company. 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, and you can block them from using your trademark in the future. Businesses have rights in trademarks whether they are registered or unregistered. (Though you should certainly register trademarks for added protection.) But if someone is infringing, you should contact a Florida intellectual property lawyer to protect yourself. What are Statutes of Limitations Anyway? You will find statutes of limitations throughout the law. Basically, they set out how much time a person or business has to sue if their rights have been violated. Courts have an interest in deciding cases with fresh evidence, and they don’t want injured parties taking forever and sitting around instead of bringing a lawsuit. Statutes of limitations operate to make sure that injured parties file lawsuits promptly. If you wait too long to sue, then a judge will throw your case out of court. This means no lawsuit, no compensation, and potentially more infringement of your trademark. What is the Trademark Infringement Statute of Limitations? Most trademark cases are brought under federal law, specifically the Lanham Act. Suing under the federal law allows a business to get into federal court, which has some definite advantages. You can also tack on state law claims if you want. Most interestingly, the Lanham Act does not have a statute of limitations written into it. 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.” This is an equitable concept that will prevent a lawsuit where it would be unfair to require a defendant to mount a defense given the amount of time that has passed. For example, it is completely unfair to let a business create a product, market it extensively, and build a business around the product only to have a competitor come in and file a lawsuit which could destroy the business. When deciding whether to apply laches, federal courts look to similar state law claims and check their statute of limitations. For example, one district court has looked at state unfair competition claims as an analogue 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 the law, the clock will start running once you have a valid claim for infringement. This means that 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, then buy the product and keep the receipt to show the date you purchased it. If you see a trademark on a website, then print off the website and note the date. Your attorney will want to see the extent of the use, which can help in an investigation. You also should move quickly. Technically, as explained above, the statute of limitations period does not start until your claim for infringement has ripened because consumers might be confused by your competitor’s mark. This means that if your competitor has no market presence, then there probably is no confusion yet. However, you need an attorney’s advice about when is the correct time to sue. One of the worst mistakes you can make is to delay taking legal action because you don’t think your company is being injured. It is better to be safe than sorry. Contact a Florida Intellectual Property Attorney Now You have 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.
If you are thinking about starting a business in Florida, it is important to understand the distinctions among the different types of business structures. Also, it’s important to learn more about how a limited liability company, or LLC, may be able to benefit you. There are many different types of small businesses and companies in Florida, and those entities use several different types of business structures. There are pros and cons to each type of business structure, and it is important to work with a Florida business law attorney to better determine which type of business is best suited to your needs. At BrewerLong, we are committed to helping business owners in Florida with a wide variety of business law matters. We want to say more about the benefits of an LLC in Florida. What is an LLC? In order to understand the benefits of an LLC, it is important to understand what this business structure is and why it is used. As the U.S. Small Business Administration (SBA) explains, an LLC has some elements of both corporations and partnerships. One of the reasons that many people choose an LLC when starting a business is that, in this type of business structure, owners are not personally liable when an LLC files for bankruptcy or faces a lawsuit. To be clear, the business owner’s personal assets, including bank accounts, house, and other assets, are not at risk because the LLC is at risk. Flexibility of LLCs in Florida In Florida, LLCs are relatively easy to set up under the Florida Revised Limited Liability Company Act, and Florida law does not place any restrictions on the number of members in the LLC. To be sure, a single person can form an LLC in Florida, which is not true in all states. Flexibility of LLCs in Florida also allows business owners to choose whether to manage the business themselves or to hire managers who are not owners of the business. Taxation Benefits Another Benefit of LLCs is that they are “pass-through entities,” which means that all business owners receive profits from the business without the profits facing business taxes. Then, anyone who receives profits from the LLC includes those profits on a personal income tax return. Yet claiming these profits on a personal income tax return is still favorable to the person receiving the profits because those profits are not classified as earned income. Accordingly, the LLC member does not have to pay self-employment tax on those profits. Personal Asset Protection One of the most important benefits of an LLC is the personal asset protection we mentioned above. One or more people can form an LLC in Florida to start a small business without being concerned about whether their personal assets are subject to liability. However, it is important to make clear that asset protection for single-member LLCs may be limited in Florida due to a relatively recent Florida Supreme Court case. In Shaun Olmstead, et. al v. Federal Trade Commission (2010), the Florida Supreme Court ruled that single-member LLCs only are entitled to limited personal asset protection. In that case, the court determined that Florida law “permits a court to order a judgment debtor to surrender all right, title, and interest in the debtor’s single-member limited liability company to satisfy an outstanding judgment.” The case suggests that multiple-member LLCs are not subject to the same limited asset protection. Discuss Your Options with a Florida Business Formation Lawyer If you are thinking about starting a business and have questions about whether an LLC is right for you, you should speak with a Florida business formation attorney as soon as you can. An advocate at our firm can discuss the benefits of an LLC with you and can help you to learn more about the business structure that is best for your needs. Contact BrewerLong for more information.
Are you considering opening a small business in Florida, or starting a company with partners? No matter what type of business you are thinking about, you will most likely need a commercial space from which to run your business. Renting a commercial space can feel daunting, and understanding the terms of a commercial lease can be complicated, particularly if you are new to Florida’s nonresidential landlord-tenant law. To be clear, while residential and commercial leases do have some similarities, these documents also have a lot of differences. When you are drafting and reviewing a commercial lease, it is important to understand the distinctions between residential and nonresidential lease agreements, and to be sure that your lease provides the protections you need. At BrewerLong, we can assist you with all aspects of your company, from initial business formation through dissolving a business. An experienced Florida business lawyer at our firm can speak with you today about drafting and reviewing a commercial lease agreement. Learning More About Distinctions Between Commercial and Residential Leases The first step in learning how to review a commercial lease agreement is to understand the distinctions between commercial and residential leases or, as they are defined under Florida law, nonresidential and residential lease agreements. The following are some important distinctions that you should know: Fewer Legal Protections The same consumer protection laws do not apply to commercial lease agreements. When you enter into a residential lease agreement, there are often a variety of consumer protection laws that prevent a landlord from engaging in certain actions or behaviors with regard to a tenant or the property. Florida law concerning nonresidential lease agreements, similar to other states, does not provide the same level of consumer protection associated with residential lease agreements. Lack of Standardization Many residential lease agreements use standard forms that have language many tenants have come to understand as a result of renting homes or apartments in Florida. Differently, most commercial lease agreements do not rely on standard forms largely because the needs of business tenants and commercial real estate owners vary widely. Accordingly, when you are drafting, negotiating, and signing a commercial lease agreement, it is extremely important to be sure that you understand each and every term in the lease and how it will apply to you. Negotiation While most residential lease agreements do not involve a significant amount of—if any—negotiation between the landlord and the tenant, commercial lease agreements are much different. To be sure, negotiation of terms is typical in commercial lease agreements. You should know that it is common to negotiate terms, such as the amount of rent, how and when rent increases will occur, the length of the lease term, and many other issues. Length of Lease In most situations, residential leases are for a one-year period. This is different for commercial leases, which typically last for more than one year (and may in fact have a lease length of several years). Binding Nature While a residential tenant may be able to include a clause in a lease that allows that tenant to terminate with a particular amount of notice (such as 60 days, for example), most commercial leases are more binding. Further, if you terminate a commercial lease early as a tenant, you may face significant financial costs. Commercial Lease Agreement Checklist When you are negotiating the terms of a commercial lease agreement, what kinds of terms do you want to ensure will be included in the contract? Since the terms of commercial leases vary widely depending upon the needs of both the landlord and the tenant, it is important to make sure that the terms of your commercial lease fit the needs of your business. For example, is the space what you need in order to set up your business? Are you permitted to install signs and other fixtures that are necessary for your company to attract customers? Is the lease term appropriate if you are just starting out and are not yet certain about the best type of space for your business? As you think about the types of lease terms you need, you should consider the following commercial lease agreement checklist: Lease term; Renewal options for the lease; Rent amount; Rent increases, or escalations, including when and how those will be calculated; Inclusion of insurance, property taxes, and other maintenance costs in your lease (or will you need to pay for these things yourself?); Amount of the security deposit; How and when the security deposit will be returned; Details of all of the space you are leasing (including, for example, rest rooms or hallways); Terms for improvements of the space made by the landlord; Modifications that are permitted; Whether and where you can hang signs; Who is responsible for paying for improvements or modifications; Accessibility issues (if you will be employing more than 15 people, the Americans with Disabilities Act (ADA) requires your business to be accessible to persons with disabilities, which may require improvements or modifications like ramps or wider doorways); Whether subleasing is permitted; Option to renew the lease; Termination of lease (e.g., notice requirements, penalties); and How disputes will be handled (e.g., mediation, arbitration). Contact a Business Law Attorney in Florida If you need assistance with a commercial lease, a Florida business law attorney at our firm can assist you. Contact BrewerLong to get started.
There are many reasons that you might decide to close a business. In some situations, the business is not profitable, and you realize that it is time to close the business. On a related note, your business may be filing for Chapter 7 bankruptcy, necessitating its closure. In other cases, however, you may have a dispute with your business partners, or you may simply want out of the business for personal reasons. Depending upon the type of business you have and your current business structure, you may not be able to simply close the business doors without attending to specific closure or dissolution requirements under Florida law. In particular, if you have a partnership, it is essential to know more about how a partnership dissolution agreement works, and what the law requires in dissolving a business partnership. Let our Orlando business lawyers assist you with your partnership agreement. What is a Partnership? If you want to end a partnership, it is extremely important to have a partnership agreement that outlines terms for dissolving the partnership. Yet in order to understand the need for a partnership agreement, you will need to know more about how a partnership work. The U.S. Small Business Administration explains that a partnership is the “simplest structure for two or more people to own a business together.” In general, there are two different kinds of partnerships, including limited partnerships (LPs) and limited liability partnerships (LLPs). In a limited partnership, one of the partners has unlimited liability while the others have limited liability. The partners with limited liability tend to have less control over the business. In a limited liability partnership, all partners have limited liability—both in relation to the business itself, as well as in relation to the actions of the other partners, according to the SBA. A partnership is a “pass-through entity,” which means that profits pass through to owners and are listed on personal income tax returns. However, in a limited partnership, the general partner with unlimited liability is required to pay self-employment taxes. Drafting a Partnership Agreement with an Eye Toward Dissolution As we mentioned, there are numerous reasons that partners pay want to get out of a partnership. Sometimes the partnership will be dissolved, while in other situations one or more partners may buy out the partner who wants to leave the business. When you start the business, it is extremely important to have a partnership agreement that outlines the type of partnership—a limited partnership or limited liability partnership—and the roles and responsibilities of each partner. In a partnership agreement, you can also make clear whether one partner can be bought out, or whether the business will need to dissolve if one partner leaves. This is often known as a “buy-sell agreement.” A partnership agreement can also clarify who is permitted to buy into the business as a new partner, and what will happen if one of the partners needs to leave the business as a result of divorce, death, or another reason. Having a partnership agreement in place from the beginning can make the process of dissolution much clearer, especially if other partners want to remain in the business and to keep it running even if one partner wants to leave. A partnership agreement can also outline the terms for dissolving a partnership altogether, but in some situation’s partnership dissolutions are handled through a separate agreement known as a partnership dissolution agreement. Dissolving a Business Altogether with a Dissolution Agreement When all partners in the business want out of the business—in other words, no partners want to remain, and the business will close—it is time to move onto a partnership dissolution agreement. This is distinct from any clauses in a partnership agreement that outline how one or more partners will be bought out or removed from the partnership while the other partners remain. A partnership dissolution agreement is essential when the business will end and the original partnership agreement did not provide clear information about how to dissolve the business. What should go into a partnership dissolution agreement? You should consider the following: Each partner’s duties with regard to dissolution; Timetable for dissolution process; How business debts will be settled; and Distribution of business assets. You can work with an experienced business lawyer in Florida to draft a statement of dissolution, ensuring that you meet all requirements under Florida law. Contact a Florida Business Lawyer If you need assistance drafting a partnership agreement or a partnership dissolution agreement, an experienced Florida business lawyer can assist you. Contact BrewerLong today to work with a business advocate.
Are you thinking about opening a business? Starting your own business in Florida can be a complicated and daunting process but being a business owner can also be extremely rewarding. While the necessary steps for starting a business can be extensive, an experienced Florida business formation lawyer can assist you. The attorneys at BrewerLong regularly assist clients as they are forming their companies. We can continue to serve your business as you seek a commercial space, negotiate a commercial lease agreement, handle employment law matters, and even if you need to consider dissolving your business. In the meantime, we want to say more about how to start a business in Florida. Develop a Business Plan The first part of starting a business in Florida involves developing a business plan. As you develop your business plan, you will want to consider many of the following: Type of service or product your business will provide; How your business will provide that service or product; Where your business will be located; Type of commercial space you plan to rent; Who will run the business; Whether you will have investors; Whether you need a license or permit to run your business; Financial goals of the business; Estimated timeline for profitability; Who your target customers might be; Who your likely competition will be; How many employees you plan to hire; Tasks for employees; and Marketing for the company. Decide on a Business Structure There are many different types of business structures from which you can choose. The U.S. Small Business Administration (SBA) provides helpful information about each available type of business structure, as well as the pros and cons for each. The following are different types of business structures: Sole proprietorship This is the easiest type of business to form, and as the SBA underscores, it gives the owner complete control of the business. One of the reasons that a sole proprietorship is the easiest type of business to form is because you can automatically have a sole proprietorship if you are engaged in business activities and if you do not specifically form another type of business. Like other businesses, sole proprietors are able to obtain a trade name. However, there are drawbacks to a sole proprietorship. Most significantly, the individual and the business are not separate—the business owner is personally liable for all business debts. To be clear, the assets and liability of the individual business owner and the business itself are not separate from one another. Accordingly, the business owner of a sole proprietorship is personally liable for business debts. Typically, a person chooses a sole proprietorship if she or he is just getting started and wants to “test out” the business before formalizing it through another type of business structure. Partnership There are two different kinds of partnerships: limited partnerships (also known as LPs) and limited liability partnerships (also known as LLPs). Both types of partnerships are similar to one another except for one major difference. In a limited partnership, there is one “general partner with unlimited liability,” who also tends to have more control over the business. The other partner(s) have limited liability and tend to have less control over the business. Limited liability partnerships are businesses in which all partners have limited liability. In a partnership, profits pass through to the partners’ personal income taxes, and limited liability partners are not required to pay self-employment taxes on the profits. Limited liability partners are not personally responsible for debts of the business. Corporation There are different types of corporations, including a “C corp,” an “S corp,” and a “B corp.” C corps are the type of corporation that most people are thinking about when they are imagining a corporation. Owners are protected from personal liability most strongly in a C corp, but there are relatively high financial costs, as well as “extensive record-keeping, operational processes, and reporting.” Corporations are separate entities from the individual business owners, but unlike partnerships, profits made by a corporation are taxed. In some situations, the profits actually get taxed twice. First, the profits are taxed when they are made, and then they are taxed again when they are paid out as dividends to individual shareholders. An “S corp” is a particular type of corporation designed to prevent the “double taxation” we just mentioned but forming one of these can be particularly complicated. A “B corp” is a particular type of for-profit corporation. In terms of taxes, it works just like a “C corp,” but it has a different purpose than a “C Corp.” In short, as the SBA clarifies, a “B corp” is “driven by both mission and profit.” Limited liability company, or LLC An LLC is a common type of business structure that has features of both a partnership and a corporation. In most cases, individual owners are protected from personal liability, and profits are passed through to the owners’ personal income without corporate taxes. At the same time, owners of an LLC do have to pay self-employment tax. Give Your Business a Name and Establish It Legally Florida law has specific requirements for naming corporations, LLCs, and partnerships. In short, you will need to check with the Florida Division of Corporations to determine whether there is an entity that already has the name of your planned business. You will also need to do a trademark search to ensure that the name you have in mind for your business has not been trademarked. Then, you will need to establish your business as a legal entity. An experienced Florida business lawyer can help with these complicated steps. Register Your Company in Florida To register your business, you will need to provide specific information to the Florida Department of State. The particular type of documents you need to submit depend upon the type of business structure you have chosen. Determine Whether You Need a Permit or License If you need any type of permit or license, you will need to get it before you officially open your…
Starting a business takes a lot of time, and so does closing one. We wish it were as easy as turning off the lights and notifying the post office to stop delivering mail but closing a business in Florida requires several steps to protect yourself legally. We are happy to help. To wind down a business, you need to notify certain stakeholders that the business will cease to exist, which protects you from future lawsuits or incurred costs. The steps you take are generally the same whether you are running a large business with 100 employees or are a sole proprietor working out of a home office. As experienced Florida business law attorneys, we have written this article on how to close a business in Florida to give you a general idea of the work involved. Vote to Wind Down, if Necessary If you run a corporation, then your shareholders will need to vote to formally wind down the business. They also need to do this at a formal shareholder meeting. Avoid sending out an email or a form letter asking people to let you know if they want to wind down. Hold an official meeting and keep records of the vote. Don’t skip this step. If you do, you could end up financially and legally liable to customers, employers, the IRS, and other government agencies. For example, a customer could allege that your business was really a sham since you don’t follow required formalities to shut it down. That could put you on the hook financially for business contracts and other debts. If you run a sole proprietorship, you don’t need to vote. But you still should carefully document the date that you have decided to stop operating your business. Notify Employees If you don’t have employees, you can skip this step. However, if you have hired full- or part-time employees, you must do the following: Give them clear notice of when their employment terminates. By shutting the business you are, in effect, laying someone off. Coordinate to pay the final paycheck in a timely manner. Florida has deadlines you need to follow. Make sure to compensate employees for unused vacation time. Deal with retirement accounts. Contact the investment company for more information. A key consideration is timing. As soon as you tell an employee you are closing the business, they might immediately jump to a different job. You might need only a skeletal crew working for you as you wind down. Pay Your Creditors A business that is winding down still needs to pay its creditors back. This means you can’t sell your business or its assets and then skip town with the proceeds. Instead, go through your contracts, both short-term and long-term. Identify how much money you need to pay off your debts and make sure you set an adequate amount aside. If the contract gives you a right to early termination, make sure that you exercise that option. What happens if you don’t have enough money to pay all creditors? Realize that they can come after you if you made a personal guarantee on a loan. (This happens more frequently than you probably imagine.) Talk with a business attorney for more information. You might need to file for bankruptcy to wipe out the debts. Pay Your Taxes Notify the IRS and the Florida Department of Revenue that you are closing your business. If you don’t, they might assume you are hiding business income and they could open an investigation. You also need to make all necessary payroll and other contributions, exactly as you did before the winding down process. If you don’t have the money, then a business bankruptcy might be your only option for handling unpaid tax debt. Close Your Bank Accounts Once all checks and transfers have cleared, you should close your accounts. Don’t close too early or checks will bounce. If you have cash in the account after paying off all debts, you will then distribute it to any shareholders. Notify the State You Are Winding Down The state needs to know that the business has closed. This protects you by preventing someone from fraudulently assuming your business identity and doing business with unwary creditors. Fill out the necessary paperwork and keep a copy for your records. Hang onto Business Records Many of our clients have successfully wound down a business only to have an issue crop up years down the road. Maybe the IRS claims they are owed money, or a creditor sues for additional payment. For these reasons, you must keep all your business records, in order, in a safe place. Speak to a Business Lawyer Today Closing a business in Florida isn’t easy, and it is rife with pitfalls. If you have a question, our Florida business lawyers can answer. Brewer Long has helped many business’ owners wind down, and we can help you too. Contact us today for a free, introductory phone call, 407-660-2964.