BUSINESS LAW FAQ
What is Business Law?
Business Law is a very broad category. It encompasses everything from businesses that want to sell to collecting for goods/services rendered. In other words, it can be so complex that we’re talking about collateralizing and UCC-1 financing statements, but it can be as simple as going to small claims for collections purposes. I’ve handled partnership disputes, the sale of a business gone bad, violations of non-compete agreements, breaches of contract, LLC formations, corporation formations, partnership agreements, buying and selling of businesses, collections, and insurance claims just to name a few. The term Business Law is so all encompassing, the best thing you can do is give me a call if you think you’ve got a Business Law problem. If it’s not something I can help you with, I usually know someone who can.
How much is this going to cost me?
Most business law cases are handled on an hourly basis. Therefore, the cost to you depends on the amount of time I must dedicate to your case. Because business law cases are so diverse, it is best to get an individual estimate.
Do I really need to hire an attorney?
Outside of small claims, a corporation or other entity cannot represent itself. If your corporation, LLC, or other entity needs to sue someone or is being sued you will need an attorney. Not sure if you need an attorney? Call for a FREE consultation.
Will I have to go to trial?
This is impossible to answer in the context of generalizations on the internet. To get a better idea as to whether trial will be necessary, call us.
What is liability minimization?
As your business ages and grows, it will be exposed to ever increasing liability. Simple math tells us that the more times you roll the dice, the more likely it is that your number will come up. Most of the time there are ways to minimize the risk to you and your business. Depending on the situation, an aggressive trial attorney can pierce right through your company and get to your personal assets. Likewise, most folks have no knowledge of the concepts of joint and several liability, vicarious liability, defacto partnerships, defacto corporations, apparent authority, joint venture liability, and several others that can get businesses in trouble. Liability minimization is the way you protect yourself should the unthinkable happen.
What should I do if I’m not getting paid for a job I performed?
If you’re not in construction, most of your rights will be set forth in the documents associated with the job. Documents like invoices, sales agreements, and work orders will help define what you can and can’t do. Sometimes, you are forced into arbitration or mediation. Sometimes, you are entitled to your attorney fees if you win. In any event, you need to call me, send me the relevant documents and we’ll go over your options during a free initial consultation. If you’re in construction, you need to make sure you filed a Notice to Owner. If you’ve timely filed a Notice to Owner, you need to file a Claim of Lien. Once the lien is filed, you can foreclose in order to collect your bill. You can even collect your attorney fees in most cases.
What should I do if I want to sell a portion of my business to someone else?
Clearly, you need to contact an attorney. Simply accepting money from someone without anything in writing is very dangerous. Florida has certain presumptions when it comes to these circumstances. Some of the presumptions might favor you. Some of the presumptions might be more favorable to the buyer. You need a written agreement that defines what is being sold so everyone knows where they stand.
What can I do if a vendor of mine failed to deliver everything I paid for?
In most cases, I will ask that you send the invoice, bill of sale, bill of lading, or other documents associated with the transaction. After I review the documents, we discuss two options. We send a letter and if we get nowhere, we sue. In other situations, we just file a law suit. The letter works less and less these days. More and more, I find myself having to file suit. I’ve started recommending against writing a letter in some instances. The basic lawsuit is breach of contract. It sounds simple enough. After all, you didn’t get what you paid for. However, the defendant always complicates things with excuses. They’ll claim you are lying, you broke the goods, the goods were stolen by someone else, or the most common excuse; there’s nothing wrong with what was delivered.
Can I convert my employees into independent contractors?
It depends. Many businesses want to do this because they want to avoid the liability for worker compensation insurance or unemployment. The fact is, there are numerous elements to determining whether someone is an independent contractor or an employee. There are ways certain workers can be categorized as others will always be considered employees. Call my office and we can discuss your particular situation.
I want to sell my business, what problems/challenges can I expect?
I’ve sold quite a few businesses over the years. One of the things I’ve learned is that both sides need their own attorney. You should not sell a business and rely on a business broker or an attorney chosen by a business broker to represent the buyer and the seller. In almost every case I’ve had where the sale of a business has gone bad, the buyer and seller used the same attorney as a “closing attorney.” There are many other problems you will encounter, like payment plans and how to protect yourself if the buyer goes bankrupt. Non-compete agreements need to be carefully crafted. Forum selection clauses should be included as part of the agreement. Choice of law provisions should be carefully reasoned and included as well. Tax implications, asset transfers, lease assumptions, license requirements, collateralization, personal guarantees, and the financial background of the buyer are all things that need to be carefully considered. There are law firms that almost exclusively handle closings of this kind. My office is not one. We focus on handling one case at a time with customized agreements for every sale. We may not be as cheap as law firms that pump out closings on a daily basis, but I know we produce a more customized product.
What can I do about breaching a non-compete agreement?
The most common solution is injunction. This is where we go to court and a judge orders the other party to stop violating the non-compete agreement. You may wonder why we would have to go to court over something so simple. The answer is, the Court must first determine whether the non-compete is enforceable. Many people think they can draw up a covenant not to compete any way they want. That’s not true. There is statutory law and case law that govern the reasonableness and enforceability of these agreements. That’s why you have to go to court before a court will order someone to stop violating an agreement not to compete. Once the injunction is entered, violation of the injunction is considered contempt of court. The court will ask the person to come before the court and explain why they should not be held in contempt. If the explanation is not reasonable the court can punish the person in the form of monetary sanctions or even jail time.
What can I do if I sold my business with a payment plan and the buyer has stopped paying?
If you’re reading this, I’ll assume you’ve made some attempt to collect the money yourself and haven’t gotten anywhere. In most cases, when the buyer stops paying for a business, they are in financial trouble. You need to contact an attorney right away to explore your options. If the buyer is financially stable, you can sue them. If it appears they are financially unstable, you need to discuss your options under the sales agreement. Often times, a good attorney will collateralize the business as part of a business sale. This means, the business is collateral and you can take it back if the buyer does not pay you.
What can I do if I bought a business from someone else and they are not holding up their end of the bargain?
Unfortunately, I get this type of case a lot. When someone sells their business, they generally make a whole bunch of promises in the documents signed at the closing of the sale. They promise that they own all the assets they are selling. Sometimes they don’t. They promise that they don’t owe any money to anyone. Sometimes they do. They promise to deliver title to certain assets after the closing. Sometimes they don’t. They promise that they won’t compete with the buyer for a certain amount of time. Sometimes they do. In nearly all of these cases, I start by asking you to provide me with a copy of the documents that were signed at closing. I then review those documents to get some perspective as to your rights under the agreement. We then have a discussion as to how to move forward. Generally speaking, we either write a letter and if we don’t get a response, we file a lawsuit. In some cases, we don’t bother with the letter, we just file suit. If you’ve found yourself in this predicament, give me a call and I’ll give you a free consultation to go over your options.
What should I do if my partner has done something to endanger our company or something I don’t agree with?
You should try and rectify the situation with your partner without involving an attorney. If you’re reading this, you probably tried that route and it didn’t work. Often times, partnership relations start out smooth, but devolve into something that resembles a bad marriage. I have handled cases where partners have obligated the partnership to contracts and debts that the other partners never knew of. I’ve handled cases where partners have stolen from other partners. I have handled cases where partners just want to leave the partnership and start fresh. If your partner has done something to endanger the company or something you don’t agree with, you need to act immediately. Give me a call and we can talk about your options.