Florida Estate Planning Lawyer Blog

Attorney Kevin W Davidson of the Green Bay Wills, Trusts & Estate Planning Blog wrote an article on the pitfalls of Do it yourself asset protection where he talks about some of the problems with trying to protect your own assets.

Over the last 6 months the number of inquiries for asset protection have significantly increased. Unfortunately most of these people did not take action when they had significant assets without potential liabilities, but are only now beginning to consider it as the liabilities become a certainty. While there are things that can be done at this stage to protect, reduce the risk of loss, or increase the ability to negotiate one's debts, it is always best to address these issues prior to problems arising.

If you would like to discuss Florida Asset Protection you should Contact a Florida Asset Protection Lawyer.

If you are using a payroll service, payroll company, or payroll agent, you should be careful because the IRS has taken the position that a business is on the hook for unemployment taxes if the payroll agent goes bankrupt. Among the steps the IRS has recommended are the following:

1. Make sure the agent has posted a fiduciary bond;
2. Insist that all IRS correspondence regarding your company’s payroll taxes come to you, not to your payroll agent; and
3. Make sure that your payroll agent deposits your taxes electronically so that it will be easy for you to check your bank statements to make sure the payments were made.

Jay Shepherd who writes the Gruntled Employees Blog has a good article on the "Eight Ways to Lose a Noncompete Case." Here is his list of the 8 most common ways companies to lose a noncompete case:

1. Putting too much faith in the belief that the court will enforce the language of the noncompete agreement as written.
2. Trying to enforce a noncompete against employees who really don't possess any confidential information or customer relationships.
3. Drafting the noncompete too broadly.
4. Focusing only on geography, duration, and scope of the noncompete rather than on the existence of protectable interests.
5. Waiting too long to file.
6. Asking for an injunction before you've developed enough evidence.
7. Filing in the wrong jurisdiction.
8. Focusing on the law instead of on the story of the case.

While many of these are true in Florida, when there is a protectable business interest, most Florida Courts are willing to rewrite the agreement and make some of it enforceable. If you would like your non-compete agreement reviewed, Contact a Florida Non-Compete Lawyer.

The Wills, Trusts, and Estates Prof Blog had a posting on an unusual motion by a pro se plaintiff. In the case Washington v. AA. Allamo, the judge imposed sanctions on the plaintiff for filing a motion entitled "Motion to Kiss My Ass".

As a Jacksonville Florida non-compete Lawyer, I often am asked about some of the provisions that are contained in a Florida employment agreement. I found an article on the Texas Non-Compete Law Blog, entitled Texas Executive Employment Agreements: Checklist for Employees and thought that the information would be relevant to my Jacksonville Clients. I have based this information on what was contained in that article, but modified removed some information and added some that is specific to Jacksonville and throughout Florida .

1. Term of Employment. Employment agreements are either for a fixed term or at-will. Most at-will employment agreement can be terminated by either party at any time for any reason. Some Jacksonville employment agreements are for a fixed term (e.g., a six-months or one-year term) also contain provisions pursuant to which the employer may terminate the employee “for any reason” on shorter notice (e.g., “thirty days’ notice”). Such an agreement is in reality a 30-day employment contract.

2. Position, job duties, location. Florida Employment agreements routinely contain provisions outlining what the employee’s title will be, what their duties will be, who the supervisor will be, and where the work will be performed.

3. Compensation. Employment agreements often reference compensation or salary and sometimes discretionary compensation (e.g. bonuses and stock options).
4. Termination for Cause. Employment agreements often provide that an employee may be terminated for “cause,” and “cause” is defined to include various acts or omissions by the employee. Some acts—like commission of a felony and embezzlement of company funds are fairly easy to understand. However, defining “cause” to include the employee’s failure to perform his/her job duties can be difficult because this can be subjective. Employees want what a clear non subjective definition of cause.

5. Classification. Employment agreements often reference an employees status as exempt or non-exempt. In some cases employees are classified as independent contractors. Whether or not an employee is an independent contractor, an employee, exempt, or non-exempt is often a factual analysis of the interactions amongst employees and their employers.

6. Nondisclosure Agreements. Employment agreements can contain prohibitions on the disclosure of the employer’s confidential or proprietary information to a third party. An employee needs to know what information the employer considers to be confidential or proprietary. Employers need to notify employees what information they consider confidential or proprietary.

7. Non-compete Agreements: can contain provisions limiting an employee’s right to compete with the employer, both during and after employment. The provision should specify activities in which the employee may not engage. In Florida the geographic scope of the restrictions must be reasonable. Terms of non-compete agreements are limited in Florida, most agreements that are in excess of 2 years are considered unreasonable and the court may shorten the term.

8. Non-solicitation Agreements. Along with non-compete provisions, some employment agreements contain prohibitions on soliciting the employer’s customers, its employees, and/or its vendors. In Florida, these provisions are enforceable.

9. Change in Control. What happens if the employer is purchased by another company? Should that affect the employee’s obligations? Should the employee be able to escape his non-compete and non-solicitation obligations? On a related note, should the employer be able to assign the agreement to another company (so that the “new” company can enforce the employee’s non-compete and non-solicitation obligations)? Employment agreements don’t always address these issues, but employees are wise to think about them.

10. Arbitration. Employment agreements often state that legal disputes between employers and employees must be submitted to binding arbitration (versus being litigated in court). Provisions like this can be one-sided (i.e., sometimes, only the employee is required to arbitrate its disputes, whereas the employer can go to court). Employers need to be mindful of the effects of agreeing to arbitrate disputes as opposed to litigate them.

11. Choice of Law and Forum Selection. Employment agreements usually specify the state whose law will govern the agreement and the place where suit must be filed in the event of a legal dispute. The latter can be especially problematic for an employee, because it may require her to bring any claims she may have in a foreign state, which can be very expensive.

Recently an Australia Judge allowed a defendant in a law suit to be served copies of court papers by their Facebook account. The Legal Blog Watch has an article posted by Carolyn Elefant - Court Papers Served By Facebook

After the judge was satisfied that the defendant was the same person who owned the Facebook account and the defendant was unable to be located, the judge allowed the defendant to be served through their Facebook account.

When is a Jacksonville Mediator helpful in resolving a Florida lawsuit?

After your Jacksonville attorney has filed suit, or you have been served with one you may quickly find that thousands of dollars are spend in attorney’s fees and costs. There are fees for pleadings and counter-pleadings, requests and responses to interrogatories and requests for admissions, depositions and motion hearings. Typically after all of these fees your attorney sets the case for trial only to then inform you that the court has ordered mediation by a Florida Mediator.

Florida Clients often ask, Why are they are now having to meet with the other party to discuss settlement after paying all this money and waiting all this time for a trial? They wonder if they could have met much earlier in process and saved thousands of dollars. If you are in a lawsuit you should ask your Florida Lawyer early if the court will be ordering a mediation and when the proper time to have the mediation would be. Often an early mediation can save both sides substantial fees and lead to a good resolution of the issues involved in the case.

Florida Mediators are regulated by the Dispute Resolution Center of the Office of the State Courts Administrator, which is part of the Supreme Court of Florida. There are a variety of mediator designations, as follows: civil circuit (not including family), family, county civil and dependency. The primary laws that apply to mediation include Florida Statutes Chapter 44 and Florida Rules for Certified & Court-Appointed Mediators.

Ask your Jacksonville Lawyer which Florida mediator he or she will recommend and why. Often the Jacksonville Lawyers appear for the hearing to set the case for trial, and have not thought about the benefits of a Florida mediator. When the court asks them who they want to mediate, the attorneys then shoot from the hip having not previously discussed it.

The choice of a Jacksonville Mediator is crucial, as the case may settle at mediation saving you, the litigant, the uncertainty of the outcome, thousands in attorney’s fees and costs by avoiding trial preparation, expert witness fees, court reporter fees, the trial, and, if you lose, the cost of an appeal. Make sure the mediator has a working background in the subject matter of the lawsuit. For example, if the lawsuit is a real estate dispute, the mediator could better understand the issues if the mediator had experience in actually conducting real estate transactions.

For questions or comments on the use or selection of a Florida Mediator, contact Michael S. Price, Esq., Circuit Civil Mediator, 1616 Jork Rd., Suite 102, Jacksonville, FL 32207; telephone (904) 396-4445; E-mail mpriceatty@bellsouth.net who focuses on disputes related to real estate, contracts, construction, leasing, foreclosure, property defects, binder deposits, and disputes related to business, partnerships and shareholders.

The FDIC has extended FULL insurance coverage to all Florida IOTA trust accounts, regardless of amount on deposit or number of clients. The unlimited FDIC insurance is available at all financial institutions that participate in the FDIC's Transaction Account Guarantee Program. Please make sure that you comply with the trust accounting rules by placing all short term or nominal funds of clients and third parties in your IOTA trust account. Those funds, which are incapable of generating income for individuals, in excess of the costs to secure that income, are pooled in IOTA accounts the interest from which provides legal services for the poor and other law-related public interest programs approved by the Florida Supreme Court. If you have any questions about your ethical responsibilities relating to your trust account, please call the Bar's Ethics and Advertising Department at (800) 235-8619. If you have any questions about the mechanics of setting up an IOTA trust account or how the IOTA funds are used, please call The Florida Bar Foundation at (800) 541-2195.

Florida Statute 193.1556 requires that any changes regarding a person or entity owning real property under Florida Statute 193.1554 or Florida Statute 193.1555 are reported to the property appraiser.

This may affect some Florida Enhanced Life Estate Deeds. Under Florida Statute 193.1554(5), If the property is nonhomestead residential property, there is an exemption for the transfer between husband and wife, including transfer to a surviving spouse or a transfer due to a dissolution of marriage. The transfer to a revocable trust will not trigger a new assessment at fair market value.

On the other hand for all residential and non-residential property which is not protected by homestead there doesn't appear to be the same exemption under Florida Statute 193.1555(5).

In either case the transfer to a Florida Revocable Trust where there is simply a change between legal and equitable title, will not trigger a new assessment at fair market value.

One new issue is that it is now required to report a change in ownership or control when a business entity owns property. In the past, many were able to sell an entity and no notice to re-evaluate the taxable base would be generated. Now if you convert real property to personal property by selling the ownership in an LLC instead of the real estate holdings of the LLC, you still have to report the change in ownership.

To read more on Florida Enhanced Life Estate Deeds or Florida Revocable Living Trusts read some of the articles on this site or Contact a Jacksonville Estate Planning Lawyer

In my previous life, I had a license to build Apple Clones. It is for this reason that I have been watching the actions of a Florida Company, Psystar, Inc. They have been installing Apple, Inc.'s most recent operating system on generic computers and selling them to the public as "Apple Clones". Apple's software license states that its software can only be installed on computers which were preinstalled with a previous version of Apple's operating system. Apple started including this provision when it switched from version 7.6 to the 8.0 version. An even that effectively ended cloning back in the late 1990's.

At that time my company PowerTools also purchased retail copies of the current operating system and installed them on our Apple Clone Computers. That is we installed version 8.0 of the Operating System on our Apple Clones which were licensed for version 7.6 of the Macintosh OS. Unline Psystar, PowerTools' clone had a legal version of the Macintosh OS preinstalled. Because of this Apple "allegedly" went to our supplier and had our OEM agreement terminated.

This is why I have been so interested in what Psystar has been doing. It appears to be a clear violation of the Macintosh operating system license.

It will be interesting to see Psystar's explanation of why they believe they can use the Mac OS in violation of the licensing agreement.

The Gray Blog first reported news of the suit against Pystar.

Florida LLC's are one of the best choices for a new business entity. When thinking of forming a company, may people only look for low taxes and protection from liability.

Unfortunately, many are misinformed as to the protection that a corporation can offer. While it is true that a corporation and a Limited liability company can both protect a persons personal assets from corporate liability (in most cases), only the properly created Florida LLC can protect your business assets from personal liability.

If someone sues you and wins, they can take your stock in your corporation just like they could take your stock in GM. Once they own your stock, they can sell the company, fire you, and liquidate the company. If this happened to you it could cost you your livelihood.

To protect against this many people now use limited liability companies in Florida. If the LLC is properly created you can be protect from judgments, reduce the risk of lawsuits, and still be taxed as a partnership or an S-Corp. Yes you can be a LLC but choose to be taxed as a S-Corp.

While legal Zoom will let you create a Corporation or LLC online in almost any state, they can not evaluate your personal circumstances, and make recommendations on how to set up the LLC to offer you the protections under Florida Laws. I have seen many LLC's created by Legal Zoom which failed to take advantage of these protections.

In addition, I have noticed that the people who use these services do not understand the importance of acting like a business entity. They rarely have meetings or authorize actions by the board members or officers. These actions can create prevent the business entity from protecting the owners, directors, and shareholders from personal liability.

Part of what your lawyer should do is understand your circumstances, and design an entity to protect your needs and interests. At the same time, the attorney should educate you on how to take advantage of the protections offered. just because your form an LLC or Corporation does not mean you are protected.

To discuss how to use your business entity to protect your personal assets and protect your business assets from the owners personal liability you should Contact a Florida Business and Asset Protection Lawyer

Seven weeks ago, I got a new puppy. I was thinking of a way to protect myself from Florida's Strict Liability for Dog Bites. Most states have a one free bite rule, but Florida does not and makes the owner of the Dog liable for all damage by the dog from the first bite.

In walks the Florida Revocable Trust. I began thinking that if you set up a separate revocable trust that owned the dog, you could transfer the liability of the dog's future actions to the revocable trust.

I began reading the Florida Statutes and sure enough the statute states that the "owner" is the party liable. Figuring that this must be too easy, I kept reading. It seems that when the state creates statutes, the often hide the real details in some other part of the statute. Sure enough after a few minutes I found that "Owner" as defined in the statute means any person, firm, corporation, or organization possessing, harboring, keeping, or having control or custody of an animal or, if the animal is owned by a person under the age of 18, that person's parent or guardian.

So while the trust would be liable as the owner, so would the person who the animal was staying with and the person keeping the animal, and the person in control or custody of the animal at the time of the attack.

So what did I learn from this exercise? You should be very careful when offering to take care of someone's pet while they are out of town as the person in control and / or custody is just a liable as the person or entity that owns the animal. More over your homeowners insurance may cover your liability as an owner, but I am not sure if they would cover damage caused by a pet that you did not own.

The only other way to protect yourself from liability is to have good insurance and / or protect your other assets.

To discuss potential sources of liability that you can help protect your self and your families assets from, you should contact a Florida Asset Protection Lawyer or read more on Florida Asset Protection

Here is a list of links that should be useful for anyone starting or running a business in Florida.

Florida state and local links

• MyFlorida.com

State Portal

• Licensing Portal

City Guides

• Jacksonville Florida City Guide
• Miami Florida City Guide
• Orlando Florida City Guide
• Panama City Florida City Guide
• Tampa Florida City Guide

Statewide Offices

• Governor


• Lt. Governor
• Attorney General


• Secretary of State
• Treasurer and Insurance Commissioner

Legislative Branch

• Florida Legislature
• Auditor General


• Office of Program Policy Analysis and Government Accountability
• Florida Monitor: Government Accountability Report

Continue reading "Florida State and Local Government links" »

There are many places to get advice on the Internet. Be sure when you are looking for legal advice, you are working with a licensed lawyer. Below is the finding of the Ohio State Bar in regards to one such service.

We the People is a franchise that provides forms and help in legal matters including wills, trusts, divorces, bankruptcy and other areas of law.

The Ohio State Bar found that they were practicing law without a license because they were owned and operated by attorneys not licenced in Ohio and advised individuals with respect to the completion of forms for filing a personal bankruptcy, application of probate, advising individuals on how to complete the forms and what answers to put down, directing individuals to execute documents and charging them for services, instructing completion of forms in disregard for proper procedures and determination by the Bankruptcy Court that the filing was incomplete, preparation of unnecessary and incorrect form for administration of an estate, preparing improperly completed forms for a bankruptcy, issuing advertisements, and advertising the preparation of services for living trusts, wills, powers of attorney, and incorporation's.

They were enjoined form further engaging in the unauthorized practice of law and from damaging members of the public and fined $10,00 per occurrence as a civil penalty as well as court costs.

To read more download the case Ohio State Bar Association v. Martin et al., No. 2007-1939, 2008 Ohio 1809; 2008 Ohio Lexis 1024 (April 23, 2008)

I received 5 copies of the IRS guide in the mail today. If anyone would like one you can Contact me and I will be happy to send one.

You may also order the CD from the IRS by calling 800-829-3636 and asking for Publication 3208 or by searching for SBRG on the IRS.gov website

I did not get paid my Vacation pay, What can I do?

Under Florida law, employees are entitled to make a claim for unpaid vacation pay that is vested. "Vested Vacation Pay" is defined as "wages" for purposes of section 448.08 requiring the employer to pay all attorneys fees and costs. If you win, you are entitled to receive unpaid vacation pay for the last 5 years and legal fees and costs associated with the case.

Most cases center around a termination. If you are terminated from your job, you are still owned vested vacation pay whether the agreement was written or verbal. The employer must pay you the value of your vacation. If the vacation pay was not vested under the terms of your agreement, then your employer does not need pay it.

If you have a question about your unpaid vacation please Contact a Florida Employment Lawyer to discuss your situation.

You should have a copy of your employment handbook, any employment agreements, and pay checks.

There are many times when one needs to discuss a the effects of a settlement or legal decision with a Florida Tax Lawyer, CPA, or Accountant prior to signing documents.

When possible a tax adviser should be involved early on in a case to make sure that efforts are spend on a tax friendly solution. Obtaining advise to consult with your tax adviser after a successful mediation or settlement often leads to unnecessary tax expenses.

If you are in the early states of litigation, be sure and discuss potential outcomes with your tax adviser to understand the effects on your or your business.

There are many times when one needs to discuss a the effects of a settlement or legal decision with a Florida Tax Attorney, CPA, or Accountant prior to signing documents.

When possible a tax adviser should be involved early on in a case to make sure that efforts are spend on a tax friendly solution. Obtaining advice to consult with your tax adviser after a successful mediation or settlement often leads to unnecessary tax expenses.

If you are in the early states of litigation, be sure and discuss potential outcomes with your tax adviser to understand the effects on your or your business.

Unless you qualify for a higher limit based upon age, April 15th is the last day you can put up to 9K in your IRA. Many might be saying, I thought I could only put $4,000 in my IRA. While that is true, you can put 4,000 in for last year and $5,000 in for the next year.

So if you act today you can actually fund your retirement accounts with $9,000 today. Given that many of us invest for the long term, why wait until the last day you can invest when your investments can start earning today.

I have written several articles on problems with using the "free legal documents" or low cost fill in the blank forms that might be available at your local Staples or office supply shop. Richard Shea of the Connecticut Estate Planning and Elder law Blog has another example of problems that can occur with these "free legal documents"
Richard says that when people use these free forms to create business entities they are not informed about local taxes and reporting requirements. One example is the "Business Entity Tax in Connecticut, The Department of Revenue Services is apparently sending out 23,000 letter to notify people of their failure to comply with the requirement.

In Florida, an online service will not inform you if you need to apply for an occupational license, nor how many your business will need for each location. Perhaps a bigger issue, is that these online services do not know you or your circumstances and cannot utilize or inform you of how to take advantage of certain options or techniques to protect you, your family, or your business partners from each others personal liability.

To discuss if you Florida Limited Liability Company or Florida Limited Liability Company was created properly and your are taking advantage of all of the protections you can, please Contact an attorney or Florida Business Formation Lawyer.

As we get older long term care insurance premiums can become expensive. To qualify for a deduction on the insurance costs the policy must be a "qualified policy" as defined by the IRS.

A qualified policy is one issued after January 1, 1997 that adheres to certain regulations established by the National Association of Insurance Commissioners. Policies purchased before January 1, 1997 may still be treated as "qualified" if they are approved by the insurance commissioner of the state where it was sold.

If you policy is qualified then premiums are treated as un-remibursed medical expenses for income tax purposes. To qualify for the deduction of the premiums these un-reimburesed medical expenses must exceed 7.5 percent of the adjusted gross income. In determininging whether you meet the threashold you can use the lesser of the premium paid or the value. If on 12/31/2008 you are:

- 40 or under, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $310.
- Between 41 and 50, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $580.
- Between 51 and 60, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $1,150.
- Between 61 and 70, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $3,080.
- Over 70, the maximum portion of your long term care insurance premium considered "health insurance premiums" is $3,850.

The IRS Small Business Products Catalog has 5 publications and guides that all small businesses should own. You can order up to 5 copies of each for free. They can be viewed online.

1.Tax Calendar for Small Businesses and Self-Employed - View Online
2. A Virtual Small Business Tax Workshop DVD - View Online
3. Small Business Resource Guide CD 2008 - Updates- 2007 View Online
4. Recognizing Illegal Tax Avoidance Schemes Brochure - View Online
5. Small Business Tax Responsibilities - View Online

For more information on these issues please Contact a Florida Business Lawyer or your tax adviser.

A federal curt found that Marilyn Monroe was a New Yorker when she died in 1962. This means her estate which has earned more than 30 million dollars licensing her image can not control the licensing. Product makers may be free to use her image without paying licensing fees to her estate because of a difference between California and New York state laws.

Marilyn Monroe LLC plans to appeal the ruling. If you license your image, it may be important to look at the laws of your state to determine what rights your estate will have. If you have questions about licensing in your state you should Contact a Florida Estate Planning Lawyer to discuss the effects of your domicile on your future heirs.

I am just finishing up a trip to Shanghai China, Osaka, and Tokyo. I brought a MagicJack phone adapter.

This gave me a US local number that rang to my computer or what ever computer I plugged it into. The voice qualify was great and it worked flawlessly on both a Mac and PC.

One really nice feature was that I could plug the USB key into any computer and I had a free telephone to use.

It costs $39 for the first year and $19 for each year after that. No long distance charges or monthly charges.

I think anyone who travels should have one of these.

Please note that I am not part of MagicJack nor do I work for them. If you need to reach MagicJack's Customer service and if you want to purchase one, I did so trough As Seen on TV or you may call them at 800-238-7119.

Chames v. Demavo, 32 Fla. L. Weekly S820 CR. Sup. Ct. December 20, 2007

An attorney owed fees from his clients under a retainer agreement attempted to enforce a lien against the homestead of the clients. The retainer agreement had expressly waived the parties’ constitutional homestead protection against claims of creditors.

Asking the Court to recede from prior Florida precedent in Carter and Sherbill, the appellant argued the 1995 constitutional amendment removing "head of family" changed the purpose of the creditor protection, that the trend in other states was to permit waivers, and permitting the waiver was consistent with other precedent allowing waivers.

The Court rejected the arguments of the waiver and concluded "the waiver of the homestead exemption will become an everyday part of contract language for everything from hiring of counsel to purchasing cellular telephone services ... [which will inevitably result in whittling away this century old constitutional exemption until it becomes little more than a distant memory."

A waiver of your homestead rights in a contract is still not valid in Florida (except with regards to pre and post nuptial agreements).

I am currently in Shanghai China for the next 5 days and then heading to Osaka and Tokyo for 3 nights each. I am planning to keep posting new issues to my blog while I am gone. In addition, I will be responding to emails and will be available over my VOIP number for calls or issues that need immediate attention. Feel free to continue to send in your questions. I wanted to apologize upfront for any additional delay in responses. Please be conscientious that it is 12 hours ahead of EST and this along with being on vacation means I will typically respond to any issues between 8AM - 12 PM EST or 8PM to -12AM my time.

For a number of years the IRS has attacked FLPs and FLLCs on the basis that there is no valid business purpose for the entity.

Clients have argued that a key reason for using the LP form is so that capital can be concentrated or pooled and then invested for greater resulting returns. Credible evidence is cited to support the contention that money invested with a long term investment time-line and with a disciplined investment policy will yield greater returns than money invested in response to demands for quarterly or annual performance.

Many reported cases have problems because senior family members contribute assets to their LPs while keeping their current invested strategy. It is important for clients to know that the courts have repeatedly cited this lack of change in investment strategy as evidence that the creation of the LP was “only a change of title” or resulted in a “mere recycling of value.”

Best practice: After assets are transferred to the LP, it is important to work with the partnership to create an investment policy statement that outlines

• how the LP intends to invest,
• why it intends to invest in a certain way, and
• what results are expected to be achieved.

Not all assets need to be sold and reinvested immediately. Stock with built in gains or restrictions will typically have a slower exit in order to avoid or postpone capital gains taxes or to comply with SEC rules.

The more the LP can distinguish its new investment strategy from senior family member’s prior strategy, the better it will be against possible attack.

Some cases where the courts have specifically called the tax payers to task for “merely recycling of value” include:

Estate of Harper v. Commissioner, T.C. Memo 2002-121 (U.S. Tax Court 2002).
Estate of Bigelow 89 T.C. M. 954 (2005).
Estate of Strangi v. Commissioner, 85 T.C. Memo 1331 (2003)
Estate of Concetta H. Rector v. Comm., T.C. Memo 2007-367

A common technique with large Florida Estate Planning is the use of FLP's or Family Limited Partnerships. Neil Hendershot of the PA Elder, Estate & Fiduciary Law Blog summarized the recent highlights of the Heckerling Institute where they discussed those issues in detail.

The most important issues dealt with making sure there was

(1) not a gift on formation of a family limited partnership. This can be done by making sure the partnership is property funded and the capital accounts are credited. The recommendation was that during the next tax year he or she transfer partnership interest. This helps to avoid the argument that the transfer was contemplated at the time of the capital contribution. See Senda, T.C. Memo 2004-160 (July 12, 2004). One must also take this into consideration with additional contributions because they are valued with the amount given instead of a discounted valuation.

(2) Avoiding Bad Facts based on formation and operation. You do not want to have these issues used to devalue the discount on the entity.

• Disproportionate Distributions to senior family members.
• Distributions that cover senior family member's expenses.
• Do not create the partnership by an agent acting under power of attorney.
• Do not use partnership funds to pay estate taxes after death. If this looks like it will be necessary consider using a life insurance policy or a hands length loan from the partnership to fund those expenses if it is necessary.

(3) Senior family member should have no control at death or within 3 years of death to avoid an inclusion look-back period under IRC § 2035. If the senior family member must serve as a general partners remove "sole and absolute" authority language and any overly protective clauses.

(4) FPL's should be created for legitimate non-tax business purposes to avoid inclusion arguments. It is likely that the drafting attorney will provide testimony of the non-tax reasons. It might be advisable to use a separate attorney to draft the agreement who has no knowledge of the discounting opportunities when creating a Family Limited Partnership for Florida Estate Planning

(5) Potential problems arise with using a martial trust for the benefit of a surviving spouse. These interests may not get the same discounted treatment which can cause problems.

(6) Be careful with the 100 Shareholder rule when using S corporations as it is possible to have more than 100 shareholders when you look at all family members who are lineal descendants up to six generations including current and former spouses.

(7) Nonresident aliens or other non-approved shareholders can create problems with S corporations.

(8) S corporations can only have a single class of stock and all must have equal rights. Look out for disproportionate distributions, buy-sell installments, and split-dollar arrangements

The article goes on to discuss other concerns and should be reviewed by anyone looking to create a Family Limited Partnership for Florida Estate Planning

For more information on how a FLP can be an effective tool in Florida Estate Planning Contact a Florida Estate Planning Lawyer

The Department of Labor has released proposed revisions to the Family and Medical Leave Act regulations. If adopted, the changes would significantly alter the current FMLA procedures. The proposals were prompted by continued tension between employers and employees concerning intermittent leave and the Supreme Court's 2002 Ragsdale v. Wolverine Worldwide Inc. ruling, which invalidated a DOL regulation that penalized employers for failure to comply with the technical employee notice provisions of the FMLA regulations.

Coverage Issues

-Some Professional Employer Organizations (PEO's) Not Considered Joint Employers
-Count Employee Prior Service in Determining Eligibility for Leave
-Employees May Continue to "Grow" Into FMLA Leave
-Location of Work site Determined for Long-Term "Joint Employees"
-Common Ailments May be Serious Health Conditions
-Male Employees Protected When Attending Prenatal Appointments With Spouses
-Chronic Conditions Requiring "Self-Treatment" Remain Covered
-Physician Assistants Qualify as Health Care Providers

Employee Leave Entitlements

-Count Holidays When FMLA is Taken in Full-Week Increments
-Employees Seeking Intermittent Leave Must Make "Reasonable Efforts" Not to Disrupt Unduly the Employer's Operations
-No Change to Minimum Increment of Intermittent Leave Rule
-Inability to Work Overtime Protected by FMLA
-Numerous Aspects of "Substitution Rules" Clarified

-Employers may run paid leave concurrently with unpaid FMLA
-Employers must notify employees of paid leave requirements at time of leave
-Employers and employees may mutually agree to supplement disability benefits through use of paid leave
-Employers need not accept less than the FMLA required certifications even when paid leave is substituted
-Employees may continue to decline offers of light duty

Employers and employees now have 60 days, until April 11, 2008, to consider and comment on the proposed changes. For a more detailed analysis of this issue please see this article.

If you own a Florida Limited Liability Company or Corporation there are unique Florida Estate Planning challenges. Often Florida Business owners fail to plan properly if they plan at all. Greg Herman-Giddens of the North Carolina Estate Planning Blog has an article where he gives a list of 32 Questions to ask if you own a business.

If you own a Florida Business and are concerned about Florida Estate Planning you should Contact a Florida Estate Planning Lawyer and discuss your circumstances.

Besides using multiple entities for asset protection, two common methods include the use of UCC liens or lease backs.

UCC filing is the equivalent of equity stripping. The UCC filing is a lien on your business asset from typically from a finance company. You can form a Florida Limited Liability Company and exercise a note from the company to your other Florida Business Entity. Along with the not a properly recorded UCC security document can be filed with the State of Florida. This will encumber the assets of the entity and protect those assets from an attempt to attach them to a lien. In effect the finance company would be first in line to collect any proceeds from the sale of the assets.

Another method is to create a lease back situation where one company owns the asset and leases the asset to another company. Since the operating company does not own the asset, it is not available to satisfy the debt.

It is important to create these techniques prior to valid claims to avoid a fraudulent transfer. To learn more about these and other asset protection techniques, Contact a Florida Asset Protection Lawyer.

One of the Lawyers in my office, David Wolf, has followed my lead and started to create a legal blog dealing with Florida Child Injury issues. David's blog is the Florida Child Injury Lawyer Blog. David covers everything from Florida Automobile Accidents, Florida Child Safety, Florida Crimes Against Children, Florida Dog Bites, Florida Homeowner Claims, Florida Home injuries, Florida Playground injuries, Florida wrongful death ....

Often when there are injuries to children I am involved in setting up Florida Guardianships. In Florida when a child receives more than $15,000 in settlement of a claim, most courts will require the creation of a Florida Guardianship.

I was recently asked about violations of a Florida non-compete agreement and the effect of a personal bankruptcy filing. I found a case which seems to address this issue on point. The case law is that as long as the debtor does not prove that the contract damages are tortuous and that he debtor caused willful and malicious injury the claims are discharged under the bankruptcy code as any other claim is.

This issue was raised by a company who failed to present evidence in a ex-employee's bankruptcy case that was sufficient to show both that the conduct was tortious and that the acts were both willful and caused a malicious injury to the company.

It would seem to reason that an ex-employer who failed to raise these issues during the bankruptcy would also denied a claim against the ex-employee.

If you are a company who has a cause of action against an ex-employee or an ex-employee who has filed bankruptcy and involved in a suit over a non-compete or Florida non-solicitation issue you should contact a Florida employment Lawyer who deals with Florida Non-Compete law.

Below is some information I on proposed Florida gun legislation.

The following bills have been filed to protect your constitutional and statutory right to have a firearm stored in your vehicle in a parking lot for self-defense and other lawful purposes.

House Bill 503 by Greg Evers (R) (CO-SPONSORS) Mitch Needelman (R)
Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008: Creates "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008"; prohibits public or private entity from prohibiting customer, employee, or invitee from possessing any legally owned firearm that is lawfully possessed & locked inside or locked to private motor vehicle in parking lot; prohibits such entities from violating specified privacy rights by verbal or written inquiry or by search to ascertain presence of firearm within motor vehicle; prohibits certain actions by public or private entity against customer, employee, or invitee; prohibits employer from conditioning employment upon agreement by prospective employee that prohibits employees from keeping legal firearm locked inside motor vehicle; prohibits employer from attempting to prevent or prohibiting any customer, employee, or invitee from entering parking lot of employer's place of business when customer's, employee's, or invitee's motor vehicle contains legal firearm; prohibits employers from terminating employment of or otherwise discriminating against employee, or expelling customer or invitee, for exercising specified constitutional rights; provides specified immunity from liability; provides for enforcement of act; provides for award of costs & attorney's fees.

Senate Bill 1130 by Durell Peaden (R) Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008: Creates "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008"; prohibits public or private entity from prohibiting customer, employee, or invitee from possessing any legally owned firearm that is lawfully possessed & locked inside or locked to private motor vehicle in parking lot; prohibits such entities from violating specified privacy rights by verbal or written inquiry or by search to ascertain presence of firearm within motor vehicle; prohibits certain actions by public or private entity against customer, employee, or invitee; prohibits employer from conditioning employment upon agreement by prospective employee that prohibits employees from keeping legal firearm locked inside motor vehicle; prohibits employer from attempting to prevent or prohibiting any customer, employee, or invitee from entering parking lot of employer's place of business when customer's, employee's, or invitee's motor vehicle contains legal firearm; prohibits employers from terminating employment of or otherwise discriminating against employee, or expelling customer or invitee, for exercising specified constitutional rights; provides specified immunity from liability; provides for enforcement of act; provides for award of costs & attorney's fees.

WHY THESE BILLS ARE NEEDED

These bills will stop business entities from searching private vehicles and violating the constitutional rights of customers and employees.

Your Second Amendment rights are at the very heart of this issue. In addition to prohibiting searches of private vehicles in parking lots, these bills also prevent businesses from asking customers or employees to disclose what personal private property is stored in private vehicles and prevents action against customers and employees who refuse to divulge that private information. Furthermore, it prohibits action against a customer or employee based on information provided by a third party.

Some Florida businesses are trying to ban firearms in cars in parking lots used by customers and employees. They are discriminating against people who exercise their constitutional rights – they are violating the constitutional rights of gun owners and Florida law.

Corporate giants have been trampling constitutional rights. Some are even attempting to coerce and intimidate gun owners into giving up their constitutional rights as a condition of employment.

Your Rights are in Danger!

Carrying firearms in a vehicle for hunting, target shooting or protection of yourself and your family obviously means you can leave that firearm locked in the vehicle in a parking lot when you go grocery shopping, to the doctor's office, to a movie theater, to visit a sick friend in the hospital, to rent a movie, to the shoe store or anywhere else normal people travel to conduct business.

Florida law, the U.S. Constitution, and the Florida Constitution clearly and unequivocally give law- abiding citizens the right to have firearms in their vehicles for lawful purposes.

How can anyone justify telling a woman who is being stalked that she can't have a firearm for protection? In many cases police tell these women to get a gun for protection because police can't be there to protect them -- and calling 911 is nothing more than government sponsored dial-a-prayer.

A business owner or manager has no more right to say you can't have a firearm in your private vehicle than they have a right to say you can't have a pair of sunglasses, an umbrella, a Bible or a baby seat.

Such an anti-gun political exercise is not good business sense. They want your money, but don't respect your rights.

Businesses are not allowed to discriminate against employees and customers because of race, religion, political party, color of eyes, hair or weight. And they certainly can't discriminate because of the exercise of lawful self-defense. And, make no mistake, these gun ban policies are blatant discrimination against people who chose to exercise a constitutional right and take responsibility for their own safety.

To find contact information for your State Senator and State Representative, please click here.

A paycheck of a decedent belongs to the Decedents estate. Florida Employers should not cancel nor refuse to issue paychecks for employees who die. Florida Employers should follow their normal procedures. If no one checks on the status of the paycheck, it would be a good idea to send notice to their address that the check is being held for their estate. This gets more complicated with direct deposit where the funds could go to the wrong person. The decedent could have a joint account with someone who was not the same person who would take under the will.

If you have questions about receiving or what to do with the earned but unpaid income of a decedent in Florida you should contact a Florida Estate Planning Lawyer who is familiar with Florida Business Law.

There is no requirement in Florida that an employer must tender a final paycheck immediately upon an employee's termination. Generally, after an employee has been terminated, his final paycheck(s) is due on the next regular payday or days.

The employer may not hold the final paycheck as "ransom" in an attempt to force the employee to sign a release or other document. The employer may make deductions from the final paycheck for monies owed the employer, advances made to the employee, damaged equipment, other set-offs, reimbursements, etc.

If you request your final pay and it is not received within 30 days Florida Law allows you to sue your employer for collection and fees and costs associated with the attempt to collect unpaid wages.

If you are be affected by this type of behavior or want to put policies in place in your business to help prevent these actions please contact a Jacksonville Employment Lawyer.

Often I am asked about wrongful termination by Florida Employees. Florida is an "at twill employment state". This means that an employer change your position or terminate you without a reason. There are certain reasons which are prohibited. These deal primarily with constitutionally protected rights like age, sex, religion, and national origin.

While it is much harder to file a claim against your employer if there is no reason given, certin things may lead to evidence which suggests your termination was wrongful.

If you believe your termination was for an invalid reason you should contact a Florida Employment lawyer to protect your rights.

Often after leaving your job your previous employer will try to hold you to the terms of a non-compete or non-solicitation agreement. An important part of determining the enforceability of the agreement is whether you can afford to defend a suit by the employer.
Although many non-compete agreements are not enforceable as written, courts will see if there is a way to reduce the scope by limiting the time, range of activities restricted, or the geographic restrictions if there is a legitimate business interest that the business is trying to protect.

There are many defenses to non-compete agreements and if you are willing to fight there is a chance you can settle or will a case. The best defense is to review and structure your agreement prior to executing it. It is important to have your agreement reviewed by a Florida Non-compete Attorney or a Florida Non-solicition Lawyer to determine what your chances of prevailing are.

If you live in a Jacksonville or another city in Florida where the Chief law Enforcement Officer (CLEO) will not or easily sign a Form 4, there are several solutions.
Class 3 Weapons include suppressors, , short barrel rifles, machine guns, and other destructive devices.

The most common solution is to create a NFA revocable trust to hold title to the firearm or class 3 items.

A NFA Gun Trust, Class 3 Firearms Trust, Florida Limited Liability Company, or Florida Corporation is a legal entity established under state law. For NFA purposes many individuals prefer the a Revocable Trust over a corporation or LLC because the cost is far less on an ongoing basis. Business entities typically have state filing fees of around $150 a year. In addition there are the costs of tax preparation, compliance and filings with the IRS. In Florida and many other states Revocable Trusts like the NFA or Firearms trust do not require any disclosure or public filings. This means the ownership, control, and management is private.

Although most Florida Revocable or Living Trusts can hold firearms or other class 3 items, many are not properly setup to deal with the issues involving firearms and other items which are regulated by the National Firearms Act (NFA). If the NFA is violated, the people in possession, and who transferred the items are subject to criminal charges, substantial fines, and forfeiture of not only the class 3 items in question but all firearms in the possession or ownership. ($250,000 penalty, 10 years in prison, and forfeiture of items)

The gun or firearms trust must give the Trustee instructions and special powers so that they can legally manage for unplanned events. Weapons and other assets in a Firearms Trust can not be distributed like other assets upon the death or incapacity of the person who placed the items in the trust(The Grantor or Settlor).

There are many advantages to a firearms trust, if you own or plan to purchase a class 3 items you should contact a lawyer who is familiar with these issues and can design a trust to protect you and your family from liability. If you are in Florida you can contact me and if you are in another state I would be happy to get you in touch with a lawyer in your state who can provide information on Gun Trusts.

A recent update to the IRS website could affect you if your Jacksonville Florida Business is a Limited Liability Company.

Important information for Single Member Limited Liability Companies (LLC) who have or will have employees within the next 12 months:

IRS regulations require a single member limited liability company that is (1) owned by one individual and (2) has or will have employees within the next 12 months to have two EINs. One EIN is assigned to the individual owner (as a sole proprietor) and one is assigned to the LLC. If you do not already have an EIN as a sole proprietor, you cannot use the online EIN application to apply for the LLC EIN. Please call the Business and Specialty Tax Line at (800) 829-4933 between 7:00 a.m. and 10:00 p.m. local time and an assistor will take your information and assign you the two required EINs. We are sorry for the inconvenience.

APPLY FOR AN EIN ONLINE NOW

While credit is tight and many Jacksonville consumers are facing foreclosure on their homes, and attempts to collect old credit card debts, companies have been trying to use waiver of you homestead to collect debts. For over 100 years Jacksonville residents and those living in Florida have had been able to protect their home from claims of creditors. Arguably the home is one of the most valuable assets a Florida resident has. Recently there has been concern over the ability of a homeowner to waive their right to protection. The Florida courts have allowed people to waive many of their constitutionally protected rights, but up to now a waiver of ones Florida homestead protection was invalid except in the case of a valid pre or post nuptial agreement. This case represented the most recent attempt to allow waiver of ones constitutionally protected homestead protection.

In a case involving the Florida Constitution's exemption which protects homeowners' residences from forced sale, the Supreme Court of Florida reaffirms that, while the exemption can be waived in a mortgage, it cannot be waived in an unsecured agreement. The court rejects claims that it should recede from its precedent based on a constitutional amendment, a purported national trend approving such waivers, and recent holdings that other constitutional rights can be waived.
To review the case and the extensive analysis the Florida Supreme Court took read Chames v. Demayo

If you are having problems with collection agents trying to collect debts, credit card debts, or other types of debts, contact a Florida Business Lawyer, or Jacksonville Consumer Debt Lawyer.

Does your business sell products in the EU? If so there are many issues dealing with pricing, competition, marketing, and acquisition or merger with other entities that you need to consider. EU fines can be huge compared to those in the United States. Once only need look at the fine for price fixing, market-sharing, or output limitation agreements to see the size of the fines. In the EU the fine for such activities is 25% of the sales price for any company engaged in these activities.

Porter Elliott in an article for the Magazine Business Law today wrote an article in the July/August 2007 issue titled More than an Ocean Separates Us: What You Might Not Know about EU Competition Law In the article he describes some of the issues relating to company acquisitions and EU Law. Some of the major issues are:

1. A merger in the US needs to also be analyzed under the EU rules.
2. Some mergers need to only be looked at at the UE level while others need approval by one or more authorities in Europe.
3. The notification process is more intensive than the dreaded Hart-Scott-Rodino filing.
4. Filings can easily exceed 100 pages excluding annexes.
5. The process will take several months at a minimum.
6. Some merger theories not accepted in the U.S. are accepted in Europe.
7. Dominate companies are held to a much higher standard.
8. Fines from the EU around the 500 Million Euro are not uncommon (750 Million dollars US)
9. Speed of action or reaction is important with EU actions.
10. Private damages and jail time are possible in Europe
11. NO ATTORNEY-CLIENT PRIVILEGE FOR IN-HOUSE COUNSEL.

The merger control rules of the EU are intended to prevent a merged business from exercising undue influence over market conditions that will affect prices or reduced consumer choice.

The rules EU differ from the UK and other countries. For the EU it is mandatory to notify the authorities of a qualifying merger in the EU, while in the UK notification is voluntary. We work with specialist in the EU and UK to assess whether a proposed merger transaction falls within the UK or EU merger control rules and can deal with the necessary submissions to the regulators to obtain approval.

In you are going through a merger or acquisition, make sure you have a Florida EU business lawyer who is familiar with UE Merger Regulations Law.

Almost every week we receive calls about slander and defamation. With the increase in the popularity and use of the Internet more and more of these cases involve material that is published on the Internet. This can be myspace, a private website, chat room, or comments in to another article.

Lately there have been many cases which have allowed the suit to take place where the person who is defamed resides. These cases involve the question of whether the state's long-arm jurisdiction can extend to a defendant who has no contacts with the state, and in some cases may have never been in the sate. According to an article entitled Plaintiff Locale to Set Jurisdiction in Web Defamation Suits by Henry R. Chalmers, the trowing trend seems to be yes as long as the statements were aimed at the forum state.

He gives several examples including Goldhaber v. Kohlenberg where a New Jersey resident was targeted by comments from a California resident. The court used the reasoning from the US Supreme Court case of Calder v. Jones where a California resident was able to sue the National Enquirer because the magazine knew its statements would impact the California resident and other is California would see the statement because California had the largest circulation of any state.

There appears to be some controversy this trend in jurisdiction of defamation claims based upon the notions of due process. Erica Calderas stated that “Just because someone put something up on the Internet, does it really comport with notions of fair play and substantial justice to drag them into a far corner of the country where they had no intention of being?”

Others also think the state where the statement was made is a more appropriate forum for the suit.

Some courts have focused on whether the Internet site was active or passive. See, e.g., Best Van Lines, Inc. v. Walker; Qwest Commc'n Int’l v. Sonny Corp.

If you have been defamed, accused of defamation, or your company is at risk of defamation you should contact a Florida Defamation Lawyer to discuss your situation

Employers have an obligation under both federal and state laws to conduct a prompt, thorough and objective investigation where an employee complains of discrimination or harassment in the workplace. Jane Kow of Jane Kow & Associates, an Employment Law Advice Human Resources Consulting Company, wrote an article for the ABA discussing these issues. She stated that employers often fail to properly investigate these complaints or take the necessary precautions to prevent further recurrences of discriminatory or harassing conduct. This can result in claims of retaliation and create substantial liability.

Here are the top ten mistakes committed by employers, which you can avoid:

1. Not conducting an investigation unless the complainant submits a signed written complaint or demanding that all witnesses provide their statements in writing.
2. Not starting or concluding an investigation promptly.
3. Not proceeding with the investigation when the complainant or the employee accused of harassment refuses to participate.
4. Not conducting an investigation in good faith without the appearance of bias or subjectivity.
5. Failing to keep the investigation and all information gathered during the course of the investigation confidential.
6. Allowing/inviting other third parties (complainant’s friend or lawyer) to participate in the investigative interview in a non-union context.
7. Not assuring the complainant and witnesses, and reminding the employee accused of misconduct that the company has a policy against retaliation.
8. Not interviewing witnesses all witnesses with knowledge of the relevant events, even if they did not directly witness the incident that gave rise to the investigation.
9. Not reviewing all relevant records and tangible evidence.
10. Making inconclusive findings when faced with the classic “he said, she said” scenario.

If you or your company is facing a complaint of discrimination or harassment in the work place, you should have the complaint, and your proposed action reviewed by a Florida Business Lawyer to make sure that you not only address the current issue correctly, but also prevent future liability by your current actions.

401(k) plans can be a powerful tool in promoting financial security in retirement. They are a valuable option for Florida businesses considering a retirement plan, providing benefits to employees and their employers. Employers start a 401(k) for a host of reasons.
To attract and keep employees.

To decide ho much to contribute to their retirement accounts before taxes.
Employers receive a tax deduction.
To benefit all employees.
To grow the money through investments in stocks, mutual funds, money market funds, savings accounts, and other investment vehicles.
Contributions and earnings generally are not taxed by the Federal government or by most State governments until they are distributed.
A 401(k) plan may allow participants to take their benefits with them when they leave the company, easing administrative burdens.

Establishing A 401(k) Plan
When you establish a 401(k) plan you must take certain basic actions. For instance, one of your decisions will be whether to set up the plan yourself or consult a professional or financial institution – such as a bank, mutual fund provider, or insurance company – to help you establish and maintain the plan.

Initial Actions
Here are four basic actions necessary to have a tax-advantaged 401(k) plan:

Adopt a written plan - Plans begin with a written document that serves as the foundation for day-to-day plan operations. Consider obtaining assistance from a financial institution or retirement plan professional. In either case, you are bound by the terms of the plan document.

Before beginning the plan document, however, you will need to decide on which type of 401(k) plan that is best for you.

A traditional 401(k) plan offers the maximum flexibility of the three types of plans. Employers have discretion to make contributions on behalf of all participants, to match employees’ deferrals, or do both. These contributions can be subject to a vesting schedule (which provides that an employee’s right to employer contributions becomes nonforfeitable only after a period of time). In addition, a traditional 401(k) allows participants to make pre-tax contributions through payroll deductions. Annual testing ensures that benefits for rank and file employees are proportional to benefits for owners/managers.

A safe harbor 401(k) plan is similar to a traditional 401(k) plan, but, among other things, must provide for employer contributions that are fully vested when made. However, the safe harbor 401(k) is not subject to many of the complex tax rules that are found with a traditional 401(k) plan including the annual nondiscrimination testing.
Both the traditional and safe harbor plans are for employers of any size and can be combined with other retirement plans.

A SIMPLE 401(k) plan was created for small businesses, It is a cost-efficient way to offer retirement benefits. SIMPLE 401(k) plans are not subject to the annual nondiscrimination tests. Like a safe harbor 401(k) plan, the employer is required to make fully vested contributions. A company can't have more than 100 employees who receive more than $5000 in compensation in the preceding calendar year. In addition, employees that are covered by a this plan may not receive any contributions or benefit accruals under any other plans of the employer.

Once your have decided on the type of plan for your company, you will have flexibility in choosing some of the plan’s features -- such as which employees can contribute to the plan and how much. Other features written into the plan are required by law. For instance, the plan document must describe how certain key functions are carried out, such as how contributions are deposited in the plan.

Continue reading "401(k) Plans for Small Businesses" »

Beginning Jan. 1, 2008, the standard mileage rates for the use of a car (including vans, pickups or panel trucks) will be:

• 50.5 cents per mile for business miles driven;
• 19 cents per mile driven for medical or moving purposes; and
• 14 cents per mile driven in service of charitable organizations.

U.S. Citizenship and Immigration Service (USCIS) announced in the November 26, 2007, Federal Register that all employers must transition to the revised Form I-9 no later than December 26, 2007. Effective December 26, 2007, employers who fail to use the revised form will be subject to applicable penalties.

1. The revised Form I-9 will is effective December 26, 2007, for all new hires or re-verifications. The rule is not retroactive. Employers do not need to complete new forms for existing employees for whom an I-9 has been properly completed.

2. The employee is not required to provide the Social Security Number in Section 1 of Form I-9, unless the employer participates in E-Verify.

3. When re-verifying employees, employers must use the new Form I-9 along with its updated list of acceptable documents. Updating Section 3 on the old/existing Form I-9 is not an option.
All previous versions of Form I-9, in English or Spanish, are no longer valid after December 26, 2007.

4. The Form I-9 is available in English and Spanish. However, only employers in Puerto Rico may have employees complete the Spanish version for their records. Employers in the 50 states and other U.S. territories may use the Spanish version as a translation guide for Spanish-speaking employees, but must complete the English version and kept it in the employer's records. Employees may also use or ask for a translator/preparer to assist them in completing the form.

Download New I-9 Form
Download New I-9 Instructions

For more information talk with your Florida Business Lawyer.

The Internal Revenue Service announced that it is offering one-day workshops for small and mid-sized section 501(c)(3) exempt organizations during fall and winter 2007 and spring 2008.

The closest one to Jacksonville looks like the Columbia South Carolina workshop on December 4th, 5th, or 6th.

There is also one in Austin Texas on May 6th, 7th, or 8th. Check expressjet for non-stop fares to Austin for less than $100.

For a full schedule check the IRS website.

I was trying out a new feature from Grandcentral where you can enter your name and phone number on the web page to have a call between us. Feel free to try it out and leave me some feedback. This could be very useful for quick questions or those who prefer to talk rather than type.

This is the third part to a series on Protecting the Company's Privilege and the dangers of Email. Click here if you missed Part 1 and Part 2. Many Jacksonville Business Lawyers tell their clients that email can be very dangerous in the event of litigation. One should always be careful before pressing the send button.

Some of the things you should implement in regards to email are:

1) Provide training to employees teach them what the proper steps are to prevent inadvertent disclosures, spoliation, and other risks from occurring.

2) Always separate business advice from legal advise, use lead ins to make it clear that what is being provided is legal advise.

3) Indicate in the communications when the communication is for legal purposes or in anticipation of litigation.

4) Limit the distribution of any disclosure to avoid waiver of privileges.

5) Teach and train that any disclosure, even an unintended one, can be a waiver of the privilege.

6) Create, implement, and audit your firms document retention policy.

This is the second part to a series on Protecting the Company's Privilege. If you missed Part 1 it can be found here. Many Jacksonville Business Lawyers tell their clients that Blackberry devices are invitations for disaster because clients have their guard down. In the past people communicated with a short phone call, in a hallway conversation, at the water cooler. Today in house counsel and employees often communicate with text messages and emails. Often they are giving business and legal advice to employees. Sometimes both business and legal advice is given in the same conversation.

Only legal advice is privileged and the privilege can be lost if business advice is intermingled with the legal advise. This privilege only protects communications within the United States. In house counsel should be cautious when communicating with employees or offices in other countries. Some countries do not recognize a privilege for in-house counsel.

Some countries like France and Switzerland recognize no privilege at all for in-house counsel and Japan is in between France and the United States.

How can in-house counsel protect their emails?

• Be conscious of when you are giving legal and business advise. Sometimes you may want to send two emails.
• When sending out legal advie make sure its clear that it is legal advise. Start your emails with "You have asked for my legal advice on this issue". Teach your staff not to mass forward your messages, if the message is forwarded to one person to many, the privilege can be lost.
• Educate your staff that email is not destroyed by simply pressing the delete key. Blackberry devices create inadvertent documentation in situations where clients have their guard down. Don't send an email that you would not like made public.
• Selectively use Privileged & Confidential" notations on e-mail communications. This will help in the event you have to argue the meaning in front of a judge.

Continued in Part 3

So you have been sued, can you remember what you put in that email? Do they still have a copy? Did they forward it to anyone else? Email is dangerous in corporate litigation, to find out some of the risks read this and the next few articles on Protecting the Company's Privilege.

Never write if you can speak,
Never speak if you can nod,
Never nod if you can wink

One of the biggest risks with email is the loss of Attorney-Client Privilege. Generally this privilege protects communications that are sent between a client and an attorney from disclosure to third parties. Some jurisdictions only protect client to attorney conversations and those attorney conversations which are in response to a clients question. Therefore attorneys should structure their emails as responses to clients questions to provide the greatest chance for protection from disclosure.

Sometimes when email is from an attorney to a client and the communications in anticipation of litigation, the conversation can be protected under the work product doctrine. In order for this protection to apply the conversation must:

be between a lawyer and a client (person or entity);
be for the purpose of obtaining legal advice;
be to a lawyer acting in their capacity as a lawyer; and
be kept in confidence.

Continued in Part 2

The Florida Asset Protection Blog has an interesting article on the advantages of being paid as an independent contractor over an employee when you are an unmarried debtor who does not support minor children. Generally wages are exempt form wage garnishment when the person is married or supports minor children.

This is one of the reasons why a properly structured Florida limited liability company (LLC or L.L.C.)can provide more protection than a Florida corporation. While both the Florida Limited Liability Company and the Florida Corporation can protect personal assets from liability that is created by the company, a Florida LLC can also protect the company assets from the personal liabilities of the owners or members.

Jonathan Alper goes on to state that a unmarried debtor who does not support minor children is subject to wage garnishment and garnishment of the independent contractor fees. A wage garnishment will stay in place for all future wages while a separate writs of garnishment needs to be obtained each time the employer is going to make a payment to the debtor. It is difficult for the creditor to anticipate payments to the independent contractor and to serve a writ prior to each payment.

You should speak to a Florida Business Formation Lawyer about setting up a Florida Limited Liability Company or converting your Florida Corporation to increase your asset protection.

As a Jacksonville Florida non-compete Lawyer, I often am asked about some of the provisions that are contained in a Florida employment agreement. I found an article on the Texas Non-Compete Law Blog, entitled Texas Executive Employment Agreements: Checklist for Employees and thought that the information would be relevant to my Florida Clients. I have based this information on what was contained in that article, but modified removed some information and added some that is specific to Jacksonville and throughout Florida .

1. Term of Employment. Employment agreements are either for a fixed term or at-will. An at-will employment agreement can be terminated by either party at any time for any reason. Some employment agreements that are purportedly for a fixed term (e.g., a one-year term) also contain provisions pursuant to which the employer may terminate the employee “for any reason” on shorter notice (e.g., “thirty days’ notice”)—such an agreement is in reality a 30-day employment contract.

2. Position, job duties, location. Employment agreements routinely contain provisions outlining what the employee’s title will be, what their duties will be, who the supervisor will be, and where the work will be performed.

3. Compensation. Employment agreements often reference compensation or salary and sometimes discretionary compensation (e.g. bonuses and stock options).

4. Termination for Cause. Employment agreements often provide that an employee may be terminated for “cause,” and “cause” is defined to include various acts or omissions by the employee. Some acts—like commission of a felony and embezzlement of company funds are fairly easy to understand. However, defining “cause” to include the employee’s failure to perform his/her job duties can be difficult because this can be subjective. Employees want what a clear non subjective definition of cause.

Continue reading "Florida Employment Agreements: Terms and Conditions" »

As a Jacksonville Florida Contracts & Business Lawyer, I often get asked about Florida Business contracts that are broken. Often when we sit down and look at the Florida contract it is evident that there never was a contract as defined in Florida.

When there is not a contract there are other methods of recovery. One of these is Unjust Enrichment and the Florida Supreme Court has defined the elements of the unjust enrichment claim as (i) a benefit conferred upon a defendant by the plaintiff, (ii) the defendant’s appreciation of the benefit, and (iii) the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.

The courts in Jacksonville and the 1st DCA use the following elements for unjust enrichment:

1. plaintiff has conferred a benefit on the defendant, who has knowledge thereof;
2. defendant voluntarily accepts and retains the benefit conferred; and
3. the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.

There are several recognized defenses to unjust enrichment. These include:

1) Express Contract: An action for unjust enrichment fails upon a showing that an express contract exists
2) Payment Made: Unjust enrichment cannot exist where payment has been made for the benefit conferred
3) Received in Good Faith: The law seems to be settled that money paid under a mistake of facts cannot be reclaimed where the plaintiff has derived a substantial benefit from the payment, nor where the defendant received it in good faith in satisfaction of an equitable claim, nor where it was due in honor and conscience.

One of the newest areas in Florida Estate Planning is the use of Patented Tax strategies for saving on estate taxes, and income taxes. The IRS has a new proposal that would require those who use these methods to report them to the IRS. Gerry W. Geyer with the Wills, Trusts and Estate Professors Blog reported this today. This could put a damper on the use of patented tax methods. Read IRS Reg 129916-07 on Patented Tax methods for more information on how this may affect you. You may want to speak with your Jacksonville Estate Planning Lawyer about this and other issues regarding your Florida estate planning techniques.

As a Jacksonville Business Lawyer, I often run up against cases which involve Florida non-compete agreements.

Definition: Covenant not to compete is a common provision in a contract for sale of a business in which the seller agrees not to compete in the same business for a period of years or in the geographic area. This covenant is usually allocated (given) a value in the sales price. It may also prohibit an employee from seeking employment within a certain time frame, a limited geographic area, and in a limited business.

It is altogether reasonable for employers to wish to prevent disclosure of trade secrets and other confidential information by employees. It is understandable that they do not want to invest time and money training an individual who then quits and goes to a competitor or opens a competing business. On the other hand it is reasonable for an individual who accepts employment to avoid forever being barred from using hard earned skills in pursuing a livelihood. Florida law undertakes to balance these interests, but that balance is not always easy to find.

Florida Non-Compete Agreement
Non-compete agreements must be analyzed as of the date they were entered into and there are separate rules and requirements based upon the date they were executed. We evaluate Florida non-compete agreements that were entered into prior to June 28, 1990, from June 28-1990 until June 28, 1996, and those entered into on or after July 1, 1996.

Most recent Florida Non-Compete Agreements are evaluated on the reasonableness as to time, geographic area, and business area to be restricted. It is important to deal with trade secrets, valuable confidential business or professional information, substantial relationships with specific prospective or existing clients, customers, and their goodwill associated with ongoing business, trade names, trade marks, geographic location as well as any extraordinary specialized training

Florida Covenant-Not-To-Compete Cases: Injunction is the normal remedy for breach of a covenant not to compete. Graphic Business Systems, Inc. v. Rogge, 418 So.2d 1084, 1086 (Fla. 2d DCA 1982), Cordis Corporation v. Prooslin, 482 So.2d 486, 489 (Fla. 3d DCA 1986); Miller Mechanical, Inc. v. Ruth, 300 So.2d 11, 12 (Fla. 1974). With regard to covenants not to compete, the court shall not enter an injunction contrary to the public health, safety, or welfare or in any case where the injunction enforces an unreasonable covenant not to compete or where there is no showing of irreparable injury. However, use of specific trade secrets, customer lists, or direct solicitation of existing customers shall be presumed to be an irreparable injury and may be specifically enjoined. Florida Statutes §542.33(2)(a) (2005).

If you feel that you are dealing with a case which involves a non-compete agreement, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involve misappropriation.

Definition: Misappropriation is the intentional, illegal use of the property or funds of another person for one's own use or other unauthorized purpose, particularly by a public official, a trustee of a trust, an executor or administrator of a dead person's estate or by any person with a responsibility to care for and protect another's assets (a fiduciary duty). It is a felony (a crime punishable by a prison sentence).

If you feel that you are dealing with a case which involves Misappropriation, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involve Florida Non-Solicitation Agreements.

Definition: Solicitation is the crime of encouraging or inducing another to commit a crime or join in the commission of a crime. Solicitation may refer to a prostitute's (or her pimp's) offer of sexual acts for pay.

Florida legal theories and defenses
one who is employed as an agent, independent contractor, or employee may agree ... with her or his employer, to refrain from carrying on or engaging in a similar business and from soliciting old customers of such employer within a reasonably limited time and area ... so long as such employer continues to carry on a like business therein. Said agreements may, in the discretion of a court of competent jurisdiction, be enforced by injunction.
Defenses

If you feel that you are dealing with a case which involves solicitation or a non-solicitation agreement, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involve unclean hands. This defense to a claim can limit or eliminate a potential recovery.

Definition: Unclean hands is a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant. Example: Hank Hardnose sues Grace Goodenough for breach of contract for failure to pay the full amount for construction of an addition to her house. Goodenough proves that Hardnose had shown her faked estimates from subcontractors to justify his original bid to Goodenough.

Florida legal theories and defenses
The Doctrine of Unclean Hands: plaintiffs who seek a remedy in equity with “unclean hands,” which does not require the commission of a crime but only acts “condemned by honest and reasonable” persons, will be denied relief. Roberts v. Roberts, 84 So. 2d 717, 720 (Fla. 1956).

Defenses
1. Unclean Hands: One who seeks the aid of equity must do so with clean hands. Bradley v. Health Coalition, Inc., 687 So.2d 329 (Fla. 3d DCA 1997). This rule applies to the State when it becomes a litigant. Valdez v. State, 194 So. 388, 394 (Fla. 1940).
2. Totality of the Circumstances: In deciding whether to issue an injunction in a particular case, a trial court must consider the totality of the circumstances and determine whether injunctive relief is necessary to achieve justice between the parties. This well-settled maxim of equity jurisprudence is summarized in §936 of the Restatement (Second) of Torts (1979): The appropriateness of the remedy of injunction against a tort depends upon a comparative appraisal of all of the factors in the case, including the following primary factors:

(a) the nature of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction and of other remedies,
(c) any unreasonable delay by the plaintiff in bringing suit,
(d) any related misconduct on the part of the plaintiff,
(e) the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g) the practicability of framing and enforcing the order or judgment.

If you feel that you are dealing with a case which involves Unclean hands, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involve unclean hands. This defense to a claim can limit or eliminate a potential recovery.

Definition: Unclean hands is a legal doctrine which is a defense to a complaint, which states that a party who is asking for a judgment cannot have the help of the court if he/she has done anything unethical in relation to the subject of the lawsuit. Thus, if a defendant can show the plaintiff had "unclean hands," the plaintiff's complaint will be dismissed or the plaintiff will be denied judgment. Unclean hands is a common "affirmative defense" pleaded by defendants and must be proved by the defendant. Example: Hank Hardnose sues Grace Goodenough for breach of contract for failure to pay the full amount for construction of an addition to her house. Goodenough proves that Hardnose had shown her faked estimates from subcontractors to justify his original bid to Goodenough.

Florida legal theories and defenses
The Doctrine of Unclean Hands: plaintiffs who seek a remedy in equity with “unclean hands,” which does not require the commission of a crime but only acts “condemned by honest and reasonable” persons, will be denied relief. Roberts v. Roberts, 84 So. 2d 717, 720 (Fla. 1956).

Defenses
1. Unclean Hands: One who seeks the aid of equity must do so with clean hands. Bradley v. Health Coalition, Inc., 687 So.2d 329 (Fla. 3d DCA 1997). This rule applies to the State when it becomes a litigant. Valdez v. State, 194 So. 388, 394 (Fla. 1940).
2. Totality of the Circumstances: In deciding whether to issue an injunction in a particular case, a trial court must consider the totality of the circumstances and determine whether injunctive relief is necessary to achieve justice between the parties. This well-settled maxim of equity jurisprudence is summarized in §936 of the Restatement (Second) of Torts (1979): The appropriateness of the remedy of injunction against a tort depends upon a comparative appraisal of all of the factors in the case, including the following primary factors:

(a) the nature of the interest to be protected,
(b) the relative adequacy to the plaintiff of injunction and of other remedies,
(c) any unreasonable delay by the plaintiff in bringing suit,
(d) any related misconduct on the part of the plaintiff,
(e) the relative hardship likely to result to defendant if an injunction is granted and to plaintiff if it is denied,
(f) the interests of third persons and of the public, and
(g) the practicability of framing and enforcing the order or judgment.

If you feel that you are dealing with a case which involves Unclean hands, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involve a Breach of a Fiduciary Duty. These disputes can be between employees and employers, companies and their suppliers, Personal representatives and beneficiaries, guardians and wards, Trustees and beneficiaries, or officers, directors, managers and the company they work for.

Definition: a fiduciary relationship is where one person places complete confidence in another in regard to a particular transaction or one's general affairs or business. The relationship is not necessarily formally or legally established as in a declaration of trust, but can be one of moral or personal responsibility, due to the superior knowledge and training of the fiduciary as compared to the one whose affairs the fiduciary is handling.

Elements Cause of Action - Florida Supreme Court
The elements of a claim for breach of fiduciary duty are: the existence of a fiduciary duty, and the breach of that duty such that it is the proximate cause of the plaintiff’s damages

If you feel that you are dealing with a breach of fiduciary duty and have suffered damages as a result, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involve Contract disputes. These disputes can be between employees and employers, companies and their suppliers, or individuals and contractors.

Definition: failing to perform any term of a contract, written or oral, without a legitimate legal excuse. This may include not completing a job, not paying in full or on time, failure to deliver all the goods, substituting inferior or significantly different goods, not providing a bond when required, being late without excuse, or any act which shows the party will not complete the work ("anticipatory breach"). Breach of contract is one of the most common causes of law suits for damages and/or court-ordered "specific performance" of the contract.

Elements Cause of Action - 1st DCA
It is elementary that in order to recover on a claim for breach of contract the burden is upon the claimant to prove by a preponderance of the evidence the existence of a contract, a breach thereof and damages flowing from the breach.

To have a valid contract there must be an offer, acceptance, and consideration.
If you feel that you are dealing with a breach of contract and have suffered damages as a result, you should discuss the facts and circumstances with a Florida Business Lawyer.

As a Jacksonville Business Lawyer, I often run up against cases which involve Tortious Interference with an Advantageous Right along with Claims for Beach of a Florida non-compete agreement and Tortious Interference with a Contractual Relationship. The elements of this cause of action are

1) Plaintiff has a business relationship, not necessarily evidenced by an enforceable contract;
2) Defendant's knowledge of the relationship;
3) Defendant's intentional and unjustifiably interfered with the relationship; and
4) Plaintiff suffered damages .

There are many defenses to Tortious Interference with an Advantageous Right. They include

1) Affirmative defenses
2) Statute of limitations - four years
3) Defendant is not liable where she did not "intentionally" interfere with plaintiff's business relationship.
4) Plaintiffs cannot establish a tortious interference claim by alleging that defendant interfered with an amorphous class of customers, but rather must establish the existence of a business relationship with "identifiable customers".
5) When the contract provision expressly reserves the right of interference.
6) Agent that gives, on request by his or her principal "honest advise" in his or her principal's best interest.
7) Plaintiff cant bring action against party of the contract at issue.
8 )Privileged or justified conduct does not give rise to Tortious interference claim.
9) Defendant acting to protect her own economic or financial interest is not liavle for tortious interference.
10) Plaintiff cannot premise claim on alleged interference with a contract that is terminable at will provided that interference is lawful competition.
11) Defendant's settlement of a lawsuit that adversely affects plaintiff's business interest does not give rise to Tortious interference claim.

As a Jacksonville Business Lawyer, I often run up against cases which involved Tortious Interference with a Contractual Right along with Claims for Beach of a Florida non-compete agreement. The elements of this cause of action are

1) The existence of contract to which plaintiff is a party;
2) Defendant's knowledge of the contract;
3) Defendant's intentional procurement of the contract's breach;
4) The absence of justification or privilege; and
5) Plaintiff suffered damages resulting from the breach.

There are many defenses to Tortious Interference with a Contractual Right. They include

1) Affirmative defenses
2) Statute of limitations - four years
3) Defendant is not liable where she did not "intentionally" interfere with plaintiff's business relationship.
4) Acts occurring during a judicial proceeding are absolutely privileged and cannot give rise to tortious interference claims.
5) When the contract provision expressly reserves the right of interference.
6) Agent that gives, on request by his or her principal "honest advise" in his or her principal's best interest.
7) Plaintiff cant bring action against party of the contract at issue.
8 )Privileged or justified conduct does not give rise to Tortious interference claim.
9) Defendant acting to protect her own economic or financial interest is not liavle for tortious interference.
10) Plaintiff cannot premise claim on alleged interference with a contract that is terminable at will provided that interference is lawful competition.
11) Defendant's settlement of a lawsuit that adversely affects plaintiff's business interest does not give rise to Tortious interference claim.

As a Florida Estate Planning Lawyer who has created Gun Trusts or National Firearms Trusts for many individuals in Jacksonville Florida and around Florida, I am often asked for names of Attorneys and Lawyers in other states who can help them create a NFA Gun Trust at a reasonable price.

As a result I have begun creating a list of Lawyers in other states who will produce Federal Firearms Gun Trusts. Some have created their own trusts, others will modify the one I am using for the specific laws in their states.

If you are an Estate Planning Lawyer and would be interested in helping others create Gun Trusts, or you are looking for an attorney in another city or state to help you create a NFA Living Trust please contact me using the form on this page or at dgoldman@jacksonvillelawyer.pro.

Jacksonville Business and Estate Planning Attorney, David Goldman Found a great article How To Prepare For Mediation: The Mediator’s Check List Of Key Legal And Factual Issues by David Laufer. This article and the checklist below can be used in Florida Business Law, Florida Probate Law, Florida Guardianship Law, and Florida Will Disputes.

THE MEDIATOR’S CHECK LIST ****************************************

ALL INFORMATION WILL BE MAINTAINED IN THE STRICTEST CONFIDENCE.

A CONFIDENTIALITY AGREEMENT HAS BEEN SIGNED BY ALL PARTICIPANTS IN THE MEDIATON BEFORE THE EXCHANGE OF ANY CONFIDENTIAL INFORMATION.

1. Identify each party and title of all participants involved in the dispute.
2. Identify each Disputant required to be present during the mediation process.
3. Identify each decision maker who will not be present during the entire mediation process.
4. Describe any special needs, demands, interests and goals of each Disputant and Counsel.

5. Describe each claim, dispute and defense.
6. Describe each Disputant’s demands –the best case outcome-to be achieved in the Mediation.
7. Identify and quote the key statutes governing the claims and defenses.
8. Identify and quote the key cases governing the outcome of the liability issues. For example: Stout v. Turney (1978) 22 Cal.3d 718: “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent with the logic and purpose of the tort form of action (i. e., compensation for loss sustained rather than satisfaction of contractual expectations) while the ‘benefit-of-the-bargain’ rule has been observed to be a more effective deterrent (in that it contemplates an award even when the property received has a value equal to what was given for it.)”
9. Identify the legal support for each demand for special, general and punitive damages.
10. Identify all defenses to the claims for special, general damages and punitive damages.
11. Identify key disputed facts discussed in the legal briefs.
12. Identify any key facts and legal issues overlooked by Counsel and the Disputants.
13. Identify other issues that may have an effect on the dispute, including change in case and statue law, change in management, change in key decision maker, vacations, trial dates, motions for summary judgment, divorce, employment termination, surgery, promotion, restructure of company, bankruptcy, sale of business, cancellation of insurance coverage, and the need for closure.
14. Should the mediation be conducted in segments? For example, if the claimant is rehired in wrongful terminations claim will the damage claim be resolved? If the franchisor reinstates a franchise will the damage claim be resolved? If the insurance company renews the insurance policy will the claim for bad faith claim be dismissed?
15. Identify possible resolutions of dispute by restoring, creating or enhancing a commercial relationship that the defendant may be able to provide as an alternative to payment of money damages. For example, a HR Director may be able to re-hire an employee without consulting with a higher authority, whereas the payment of a damage claim may have to go through several levels of review and approval and consultations with the company’s risk manger for reporting to an insurance carrier or audit committee.

Continue reading "Attorney and Client Check List for Mediation" »

This is the second part on various tests that may be used by Florida Business Lawyers in determining whether a person should be classified as an employee or contractor. Follow this link to read the first part of the article.
B. The Economic Reality/ Economic Dependence Test

This test is used to answer the question of who is the employer in cases where there is more than one potential employer. It can also be used to determine whether a worker is an employee or an independent contractor.
The test may only be used for finding coverage of workers under the FLSA, AWPA, EPA, and the FMLA. The factors listed below are to be applied with an eye to determining whether and on whom the worker is economically dependent for his or her earnings and working conditions.
A worker is more likely to be an employee of an entity when:

1. The individual works in a production process or service that is an integrated part of the employer’s business.

Example: garment workers pressed clothes for clothing manufacturer Renaissance, or, farm workers pick cucumbers for a grower who sells them.
OR Did the subcontractor function as a part of the employer’s business?
Example: Manufacturer Renaissance used the subcontractor Han Byul to sew and press the clothes it sold, or the grower used the farm labor contractor to harvest its crop.

Example: Although Han Byul rented the factory and equipment needed to sew and press clothes, the factory was only a few blocks away from Renaissance and Renaissance provided all the material for sewing, except thread.

Example: over 85% of Han Byul’s work came from Renaissance. Garment workers spent over 80% of their time pressing exclusively for Renaissance.

Example: Renaissance consistently relied on Han Byul to sew and press garments and Han Byul was dependent on Renaissance for business. Han Byul closed when Renaissance stopped giving Han Byul work.

Example: the employer sets the hours or rate of pay of the workers by dictating turn-around times and piece rates, or monitors the quality of the garments by visiting or sending an agent to visit the plant. If the work is unskilled, the right to supervise is more important than the actual supervision.

Continue reading "Florida Employee or Independent Contractor Part 2" »

Florida Business Lawyers are often asked to help determine if someone is considered an independent contractor or an employee for various scenarios. There are three major tests for employment status under various federal labor and employment laws.

A. Common Law Control Test / IRS 20 Factor Test
B. The Economic Reality / Economic Dependence Test
C. The "Suffer or Permit to Work" Test

This is the test for employee status under FICA, FUTA, ERISA, most Workers' Comp laws and the NLRA. It is also used in ADA, Title VII, and some OSHA cases. This test can be used to determine who is the employer, if the question is which of a number of entities employs an employee.

The IRS 20 factor test is the most comprehensive view of the common law right-to-control test. Since the IRS 20 factor test is the narrowest , if employment status is found, a worker is automatically covered under the broader economic reality and suffer or permit test.
A worker is more likely an employee and not an independent contractor if the worker:

1. Is required to comply with the employer’s instructions about the work.
2. Receives training from the employer.
3. Provides services that are integrated into the business.
4. Provides services that must be rendered personally.
5. Hires, supervises and pays assistants for the employer.
6. Has a continuing relationship with the employer.
7. Follows set hours of work.
8. Works full-time for the employer.
9. Works on the employer’s premises.
10. Does the work in a sequence set by the employer.
11. Submits regular reports to the employer.
12. Receives payments of regular amounts at set intervals.
13. Receives payments for business or traveling expenses.
14. Relies on the employer to furnish tools and materials.
15. Lacks a major investment in facilities used to perform the service.
16. Cannot make a profit or suffer a loss from the services.
17. Works for one employer at a time.
18. Does not offer services to the general public.
19. Can be fired.
20. Can quit at any time without liability.

When clients consult with their Jacksonville Florida Small Business Lawyer about starting internet related businesses, or those which will have a website, it is important for them to realize that this is a different world than it was 5 or 10 year ago.

Given that I work with many small and startup business in Jacksonville Florida, I thought this article would be good for them to review. Following the advice and recommendations can same a lot of time and expenses in the long run. Many procedures are inexpensive and easy to implement from day one, but become more difficult and costly as time goes on.

Here are the titles of the 9 recommendations for more information, you should read the full article:

1. Ignoring the rules of Safe Harbor
2. Ignoring the Terms of Service chain
3. Falling for a sob story
4. Keeping your data forever
5. Being open to kids
6.Expanding into print
7. Ignoring the bribes you have to pay
8. Cooperating with the police
9. Thinking you are in the clear

Often we find articles on other blogs that may be of great interest to our readers. Flprobatelitigation.com has recently written a great review of a recent Florida probate Case. This case should be of particular interest to Florida estate planning lawyers, Florida probate lawyers, and even Florida Business lawyers.

This case could have broad implications on the statute of limitation dealing with Florida business law, Florida estate planning, and Florida probate, as there are often fiduciary duties that are created.

Although the set of facts in this case dealt with Probate, its not unreasonable to see courts considering this line of thinking in other areas were there is a breach of a fiduciary duty.

In Kravitz v. Levy Fla 2007 WL 2480538 (Fla. 4th DCA Sep 05, 2007)

The court found that even after 41 years, the Continuing torts doctrine allowed a family the opportunity to recover from a PR when they discovered the PR had breached his fiduciary duty to the family. The court reasoned that the statute of limitations did not begin to run until the PR died, which was when the issues were discovered.

For many years before I became an Florida Small Business Attorney and Florida Estate Planning Lawyer, I was in the computer industry. Much of our business was from selling products internationally. Often the resellers in those countries complained that what we were doing was Black market or Grey Market. The customers liked the US prices and the availability of the products. Although for many years there have been grey market problems in the United States with electronics and cameras, it was not a big problem with software. Occasionally there would be "unauthorized" product sold in the market place. One example I can remember is when some hard drives that were sold to a computer manufacture became available in the normal channels of distribution. This problem was that these devices were able to be sold for 1/2 the price of the normal drives.

Lately Microsoft has been having the same problems with their OEM software. It appears that they have begun to file lawsuits to enforce their rights and persuade others from being tempted to use their software in an unauthorized manner.

Recently Microsoft filed nine suits in Florida Courts:

MICROSOFT CORPORATION v. AMERICAN BEGONIA CORPORATION ET AL, 1:07-CV-21642
MICROSOFT CORPORATION v. COMPUTERS & LAPTOPS CENTER, INC. ET AL, 1:07-CV-21643
MICROSOFT CORPORATION v. COMPUGLOBE, INC. ET AL, 0:07-CV-60900
MICROSOFT CORPORATION v. KEN’S COMPUTERS INC. ET AL, 5:07-CV-00258
MICROSOFT CORPORATION v. PC TOUCH OF FLORIDA, CORP. ET AL, 1:07-CV-21644
MICROSOFT CORPORATION v. TAKE A BYTE COMPUTERS, INC. ET AL, 0:07-CV-60901
MICROSOFT CORPORATION v. CRUZ ET AL, 8:07-CV-01117
MICROSOFT CORPORATION v. GUNTHER, 3:07-CV-00596
MICROSOFT CORPORATION v. NETFX PRO, INC. ET AL, 3:07-CV-00597

The suits filed in the Middle and Southern Districts of Florida set forth claims of copyright and trademark infringement as well as state counts for unfair competition. This wave of lawsuits principally seems to focus on pre-installers of unlicensed software. Much of this software is purchased overseas and enters the country in through the parallel market. They add to the growing number of lawsuits recently filed in other parts of the country by Microsoft against parallel market software importers.

If you have a similar claim, you may want to speak with a Patent lawyer.

For More information on these suits check out the following links:Microsoft wages New War on Parallel Market and Microsoft Lawsuits against unauthorized Resellers

Recently the Florida statutes changed to allow for arbitration clauses in Florida Revocable Trust Agreements. When including an arbitration clause in a Florida Revocable Trust one needs to make sure the arbitration clause will be enforceable.

Below are some issues with arbitration clauses in Florida that need to be considered whether used for Florida Business Contracts, Transactions in Florida, or Florida revocable trusts. Luckily the US Supreme Court has ruled that if an arbitration clause is invalid, the clause can be removed from the agreement and the underlying agreement can still be valid.

Florida Arbitration Clauses

An agreement to arbitrate, or a provision in a contract providing for the arbitration of disputes, is valid, enforceable, and irrevocable without regard to the justiciable character of the controversy. The only questions for a court to determine when looking to see whether an arbitration clause is enforceable are:

1. Whether the agreement that contains the arbitration clause is valid?
2. Whether the parties have a valid arbitration agreement;
3. Whether an arbitrable issue exists; and
4. Whether the right to arbitrate has been waived.

Continue reading " Validity of Florida Arbitration Clauses" »

As your Florida Business Attorney or Florida Estate Planning Attorney if there is conflict of interest when more than one person is going to be represented.

There is an interesting article in the Post Gazette today regarding potential conflict of interests between a husband and wife. Whenever a lawyer represents two or more individuals, there is always at least the potential of a conflict of interest, even when the clients agree about everything.

The article goes on to state that:

The same is true when a married couple sees an attorney because the estate plan decided upon, depending on the circumstances, may well result in one spouse being deprived of a legal right. Whenever a person in a joint representation may be deprived of a legal right, the lawyer must advise that person that he or she is entitled to seek the opinion of an independent attorney and, in fact, must recommend a second attorney.

However after being advised of the right to see another opinion of an independent attorney, the couple may decide that they are willing to waive any potential conflict. If a conflict arises, the attorney must decline further representation of either party. For more information on this please review the link above and discuss it with your estate planning attorney

It is important to have a Florida Business Attorney review important and complex contracts. In my experience as an entrepreneur, I have found that the number one reason why problems occur with employees and clients is a failure to set proper expectations and communicate effectively. Often when one looks hard enough at any problem, the cause and cure deal exclusively with expectations and communication. Often Florida estate planning involves litigation, although this article is focused on business, the same issues tent to apply to probate, guardianship, will constests and other types of Estate Planning.

I ran across this article which describes 5 things that one can do to help avoid litigation.

1 Think carefully about the type of people that you do business with 2 Be the kind of organisation which does not create disputes 3 Seek to communicate effectively and consistently. 4 Have management trained to face up to the dispute. 5 Have plain English and not too onerous legal term.

A new problem has begun to surface in Florida Estate Planning. What happens if you use email, or other online services? Will your loved ones be able to act upon your behalf if you are incapacitated or unable to act on your own?

With the rising use of the internet, it doesnt matter if you are in Jacksonville Florida or another city.How can you give your heirs access to information that may be stored online but secured by a password, but without the risk of unauthorized access.

If you put your passwords in your Florida will, they could change, or people who should not have access to them might gain access. Likewise biometrics (fingerprint or retinal scans) could also pose problems if there is not a password in addition to the biometrics.

The best solution seems to deal with a password vault where there is a master password. This way if your passwords change, the person who has access to the master password would always have the current password.

The master password could be on a document that is referenced within the will or other estate planning documents.

With the increase in electronic communications it’s important to choose a Florida Estate Planning Attorney who is familiar with the technology and how to deal with these recent problems in estate planning.

Another solution is to create a Digital Asset Revocable Trust. This trust can be the owner of all of your digital assets or the assets you wish others to have access to upon a disabling event or your death. Since most of these digital assets are licenses, the trust will survive your death and others will be able to access the information. You still need to plan on how to transfer the information or knowledge to the successor trustee or beneficiary.