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Archive for the ‘business’ Category

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How to write a business plan

June 7th, 2011

By Mark Schecter | Comments Off

How to write a business planInvesting in a business plan for your new venture is one of the smartest decisions you can make.

While you know that is true, you have yet to start writing it. Why?

If you are like the business owners I hear from, you don’t know what to write, where to start or how the plan should be formatted.

There is no single way to write a business plan. Yours will vary from your competitor’s. However, there are key components you should include if you want to be taken seriously by investors, potential partners and financial institutions.

Follow these simple 7 steps and you will be well on your way:

1.    Start with an attention-grabbing executive summary

The executive summary is a crucial component of your business plan. It’s your first opportunity to capture and keep the reader’s attention.

Start by summarizing the vision you have for the new venture. Explain the need your industry has and how you plan to fill it. Include a brief description of your target market and how you expect it to perceive the new business.

2.    Share your story

Do you have a personal story that led to your new business vision? Share it! The executives that will read your plan are humans first and relate to personal stories. Don’t refrain from telling them who you are and why you believe in your new venture.

3.    Elaborate on the nature of the business

Explain in detail the nature of your business. Include the company name, location and how it is structured, whether as a corporation, partnership or LLC.

Provide the reader with an overview of how the business operates, the need it satisfies in the market, and how your approach is different (and more effective) than your competitor’s.

4.    Introduce your management team

Financial institutions and investors will want to know who is involved in managing the business before they will seriously consider a loan.

Introduce the members of your management team and explain the roles they will play. Be sure to include details about the qualities and expertise they bring to the table.

5.    Include a market analysis

You must have a good understanding of the market you will serve if you plan to build a profitable business. Use the initial planning process to research and analyze your target market.

Give details about industry trends, the products and/or services you will provide, and how you will price your offerings. You should also provide insight on the sales and marketing approach you plan to take to target potential customers.

6.    Discuss the money you need

Now that you’ve laid out details about the new business venture, the market you will serve and what you will offer, it is time to discuss money.

Provide a breakdown of the money you are personally investing as well as the capital you need from banks, investors or other sources. Include annual income projections, cash flow statements, balance and break-even worksheets… and don’t forget to explain how and when you expect to repay any loans you receive.

7.    Start writing!

Make planning a top priority for your new venture. Start writing your business plan today… or let our lawyers handle it for you. Call 954-779-7009 to schedule a consultation.

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Business planning is a smart investment

June 1st, 2011

By Mark Schecter | Comments Off

Your desire to launch a new business venture is admirable. However, making it a success will require more than mere desire.

According to the Small Business Administration, many new ventures end in failure… and most of those failures are due to lack of planning.

Business planning is a smart investmentWhether you are launching a new product or service-based business, proper planning is a smart investment. Here are reasons to make it a top priority:

Better estimate costs

Many people underestimate start-up and operating costs, especially when they are new to entrepreneurship.

To prevent making the same mistake, use business planning to detail the products, people, services and capital you will need to launch and grow a sustainable company through the first few years.

Attract partners and investors

A thorough plan not only outlines the overall mission and objectives of your business, it also lays out how you expect to start, build, maintain and grow. This information is vital if you want to attract partners and investors for your new venture.

Reduce stress and uncertainty

Launching a business can be stressful for new and seasoned entrepreneurs. You have to raise capital, consider tax implications, find a location, hire staff… the list gets longer as you give it more thought.

A business plan allows you to outline your ideas, determine what you need, and set out on a well-planned path. This reduces stress and uncertainty, and increases the likelihood you will establish a profitable company.

If you were building a dream home for your family, you would not buy supplies and start construction without a blueprint in hand, right? The same should be true when it comes to starting a new business venture. A solid plan is a blueprint you cannot afford to ignore.

Before you start hiring staff and announcing the grand opening, invest time in planning your business. If you need help, let our lawyers walk you through the process. Call 954-779-7009 today.

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When are Brokers Not Entitled to a Commission?

October 4th, 2010

By Mark Schecter | 1 Comment »

Florida real estate brokerWhen multiple real estate brokers are involved in the same property sale, it is not uncommon for a fight to break out about who is entitled to a commission.

Under Florida law, in the absence of a special contract, a broker is entitled to a commission when that person is the procuring cause of a sale. See Siegel v. Landquest, Inc., 761 So. 2d 415, 416-17 (Fla. 5th DCA 2000).

For a broker to be considered the “procuring cause” of a sale, he must have brought the purchaser and seller together and the sale consummated as a result of continuous negotiations conducted by the broker. See Sanson v. Dutcher, Higginbotham & Bass, Inc., 401 So. 2d 913, 915 (Fla. 4th DCA 1981).

Florida Courts: Brokers are not entitled to commission when…

Here are three cases that illustrate the factors Florida courts consider when determining whether a broker is entitled to a commission for causing a sale:

(1) Kotler v. Kroop, Inc., 354 So.2d 110 (Fla. 3d DCA 1978)
In this case, a real estate broker sued to get a brokerage commission but the buyer and seller showed the court that they negotiated the sale with no assistance from the broker. The court found that the broker was not entitled to a commission because he was not a procuring cause of the sale.

(2) Lee Giusti Realty, Inc. v. L.D. Corporation, 603 So.2d 39 (Fla. 4th DCA 1992)
This case involves a real estate broker and two joint venture partners. Lee (the broker) showed a property to one of the partners but the other partner is the person that actually made the purchase.

The broker claimed he was a procuring cause of the sale because he had shown the property to one of the partners. But the court held that the broker was not entitled to a commission because the actual purchaser had no association with him and had specifically stated that there was no broker involved in the purchase.

(3) Leon Realty, Inc. v. Hough, 310 So.2d 767 (Fla. 1st DCA 1975)
Brokers of Leon Realty had a verbal contract with the property owner to sell his property. The owner believed the brokers did not perform according to the contract, so he contracted with a second broker (defendant Hough) who actually sold the property.

The court ruled that the first brokers (Leon Realty) were not entitled to a real estate commission because they did not consummate the purchase, nor did they affect the sale as a result of continuous negotiations.

Involved in a dispute over real estate commissions? Email our Fort Lauderdale real estate attorneys or give us a call at 954-779-7009.

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Posted in business, Florida, Fort Lauderdale, real estate | 1 Comment »

Recover Costs and Fees under the Offer of Judgment Statute

September 24th, 2010

By Mark Schecter | No Comments »

moneyclipDid you know you can recover reasonable costs and attorney’s fees from another party when your offer of settlement is not accepted?

Florida Statute §768.79 (also known as the offer of judgment statute) states in part:

“If a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him… if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer.”

If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney’s fees incurred from the date of the filing of the demand.”

The purpose of the offer of judgment statute is to encourage parties to resolve disputes and eliminate the need for unnecessary litigation.

Recovering Costs and Attorney’s Fees

Before  you can recover any costs or attorney’s fees, the law requires that the following is done:

  • The offer must be made in writing and pursuant to the above Florida statute;
  • The name of the party making the offer and the party to whom it is being made must be clearly stated;
  • The offer should state with particularity the amount offered to settle a claim for punitive damages (if any); and
  • The offer must state the total amount of the offer. See Fla. Stat.  §768.79(2).

Once a court enters a final judgment, if you are seeking to recover costs and attorney’s fees under the offer of judgment statute, you must file a motion within 30 days to allow recovery.

If you can show that you have complied with the statutory requirements, the trial court will then determine whether to award the costs and attorney’s fees. Camejo v. Smith, 774 So.2d 28 (Fla. 2d DCA 2000).

Court Determines the Award

If there is to be an award, the court will decide the reasonableness of the award pursuant to the Florida statute. Factors the court must consider include:

  • The then apparent merit or lack of merit in the claim;
  • The number and nature of offers made by the parties;
  • The closeness of questions of fact and law at issue;
  • Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer;
  • Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting non-parties; and
  • The amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation be prolonged. See Fla. Stat. §768.79(7)(b).

This law applies to settlement offers made by both plaintiff and defendant in any civil action. Because the statute is punitive in nature, the courts have held that it must be strictly construed.

For more information about the offer of judgment statute, contact our business lawyers. Email or call us at 954-779-7009.

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Posted in business, commercial litigation, Florida Statute, Fort Lauderdale | No Comments »

What is Trademark Infringement?

September 16th, 2010

By Mark Schecter | No Comments »

trademarkA trademark is a distinctive name, logo, word or symbol that is used to identify and distinguish a service or product.

Trademark infringement occurs when a business uses the identical trademark of another business (or a “confusingly similar” version of the mark) without permission to create and/or promote a product or service of its own.

Elements of Trademark Infringement

According to Florida law, there are four elements that must be satisfied to bring a civil action for trademark infringement.

1. The Plaintiff must prove prior use of the trademark;

2. The trademark must have acquired secondary meaning;

3. The Defendant is using an identical or “confusingly similar” trademark to identify or promote a service or product similar to the Plaintiff’s; and

4. The actions of Defendant will likely lead to consumer confusion as to the origin of the products and services.

Florida Court’s Opinion

To prove the similarity of the marks in question, you must show that consumers will assume the infringer’s product or service has the same origin as the original owner of the trademark. This is known as the “likelihood of confusion.” Proving this can get tricky as it involves more than measuring actual consumer confusion.

In Tortoise Island Homeowners Association vs. Tortoise Island Realty, Inc, 790 So. 2d 525 (Fla. 5th DCA 2001) the association sought relief in the form of an order to stop a local realty company from infringing on its trade name and mark.

The circuit court denied the association’s request stating that “Tortoise Island” is a geographic mark with no secondary meaning, and the common use of a turtle in the realty company’s logo was not enough to cause consumer confusion or injure the association’s reputation.

The association appealed the decision and upon review, the appellate court reversed the circuit court’s ruling – holding that the association met its burden to show the trade name was arbitrary and deserving of protection, and proved the likelihood of confusion caused by the realty company’s use of the trade name and mark. Furthermore, the court found that the association established its right to relief by showing that the name and logo were distinctive.

You can find incidents of trademark infringement in any competitive industry. If you are dealing with this type of unfair competition, you may be able to obtain an injunction to prevent further use of the trademark by the infringer, and seek other legal remedies.

Contact our business lawyers today to discuss your options. You can use this form to email or call us at (954) 779-7009.

Posted in business, commercial litigation, litigation, small business, South Florida, Trademark | No Comments »

What is Unfair Competition?

September 8th, 2010

By Mark Schecter | 1 Comment »

CompetitionWe recently reviewed common disputes that both small and large businesses face.

Absent from the list of disputes is unfair competition, which happens when one business causes financial harm to another (likely a competitor) due to deceptive and wrongful behaviors and practices.

Unfair competition is a broad area and includes various torts (and criminal actions), but can usually be divided into two main categories:

(1)unfair trade practices; and

(2)civil actions arising from a business intent to confuse consumers about the source of services and/or products.

Types of Unfair Competition Claims

There are many types of unfair competition claims. Some of the more common include misappropriation of trade secrets by former employees, trademark infringement, libel, false advertising and false representation of services and/or products.

Misappropriation of Trade Secrets – This occurs when a former employee wrongfully divulges or threatens to divulge your business trade secrets to your competitors for some type of economic advantage. The Uniform Trade Secrets Act prohibits the divulging of trade secrets and can be used to secure an injunction against the former employee, damages (actual and punitive), and other civil remedies.

We have discussed trade secrets in detail on this blog. Make sure you check out our previous articles – here, here and here.

Trademark Infringement – An example of this type of tort is when a business uses the logo and/or name of another business to create a new product or service that deceives consumers as to its origin. This often leads to consumer confusion and can cause serious financial loss to your business.

Trade Libel – When a competitor knowingly spreads false information about the nature and quality of your products and/or services, they are engaging in trade libel.

While this article focuses only on torts, it should be noted that some claims of unfair competition can lead to criminal charges.

You can expect more information about civil actions arising from unfair competition and similar torts in the near future. In the meantime, feel free to contact our business attorneys if you are dealing with this issue. You can use this form to email or call us at (954) 779-7009.

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Posted in business, Corporation Law, small business, South Florida, trade secret | 1 Comment »

Common Types of Fraud Actions

August 27th, 2010

By Mark Schecter | No Comments »

Have you been lied to or taken advantage of by another person or business? You may have a viable cause of action for fraud.

Earlier this week, we discussed the elements of fraud – a four-part threshold that must be satisfied to sustain an action against another person.

Today, lets look at 3 common types of fraud claims:

1. Fraud in the Inducement

This type of fraud takes place when someone deliberately deceives another person into taking action. This happens often when homeowners are tricked into transferring a deed giving their property away, while believing they are actually taking action to save their home.

2. Fraudulent Misrepresentation

When a person knowingly makes a false statement or misrepresents the truth, causing another person to take action and sustain losses, they are engaging in fraudulent misrepresentation. This can include deliberate lies as well as known omissions of fact.

To prove this type of fraud, you must show three things:

1) That the party providing the information is aware that the info is false;
2) The party’s intention is to convince another person to take action based on false information; and
3) The action-taker enters the agreement with the defrauder and sustains losses based on the information provided.

3. Negligent Misrepresentation

This type of fraud is similar to the fraud described in the preceding paragraph. Unlike the first, negligent misrepresentation involves carelessness. It occurs when a person relays information to another to encourage action without knowing for sure if the information is credible.

Proving your Fraud Claim

The elements that must be satisfied to support a cause of action are the same for each type of fraud mentioned above. The only differences are the facts that lead up to the fraudulent actions. To learn more about what is needed to prove your fraud claim, read this article.

If you (or your business) has been injured due to the fraudulent actions of another person, use this form to contact us, or give us a call at (954) 779-7009

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Elements of Fraud Claims in Florida

August 25th, 2010

By Mark Schecter | 1 Comment »

fraud elementsMuch has been said about mortgage fraud in recent months, especially with Florida holding the second highest rate in the nation.

But fraudulent actions are not limited to mortgages and are occurring everyday throughout the real estate market.

One of the most common incidents of fraud is when a seller misrepresents a property or fails to disclose important information to the home buyer, which usually causes a financial loss to the latter party.

If you have experienced this, you may have a cause of action against the defrauder – but there are certain elements you must satisfy first.

The elements of a fraud claim, established in Huffstetler v. Our Home Life Ins. Co., 67 Fla. 324, 65 So. 1 (1914), are:

(1) a false statement must be made concerning a material fact;

(2) the seller had (or should have had) knowledge that the representation was false;

(3) an intention that the representation induces another to act on it; and

(4) an injury to the acting party (homebuyer) relying on the representation.

In Johnson vs. Davis, 480 So. 2d 625, 627 (Fla. 1985), Davis entered into a contract to buy the Johnsons’ home for more than $300,000. Davis paid $5000, the first installment of the deposit, and agreed to pay the second installment of $26,000.

They Davis family later noticed a problem with the home’s roof. And after further investigation, they came to realize the roof was more problematic than the Johnsons mentioned before.

Davis filed a lawsuit against the Johnsons asking to rescind the contract to purchase, and for return of the deposit payments.

The court held that a seller has a duty to disclose when he or she knows of facts that affect the value of the home, and those facts are not readily observable. The court also upheld the Huffstetler decision which sets the standard needed to establish a claim of fraud.

If you (or your business) has been injured due to the fraudulent actions of another person, use this form to contact our Florida business lawyers, or give us a call at (954) 779-7009.

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Posted in business | 1 Comment »

Are your Claims Barred in Florida?

August 20th, 2010

By Mark Schecter | No Comments »

claims barred in floridaEvery business owner wants to get paid for services performed. Whether you are working with the public or involved in business-to-business relationships, you may have to take legal action for unpaid invoices and broken agreements.

In most instances, you can sue and recover your losses when you lose money at the hands of another person or business.

But here’s the deal: you must file the lawsuit in the time the law allows – the statute of limitations (SOL).

If you fail to commence your action before the SOL period expires, you can be barred from seeking legal remedies permanently. This includes the recovery of monetary and other damages.

The statute of limitations period varies, depending on the type of case you have, where the injury occurred and other factors. It’s in your best interest to know the amount of time you have to file a lawsuit to recover your losses.

Written and verbal contracts

Many civil actions stem from breach of contract issues involving business-to-business transactions. When a written contract is at issue, the SOL period is 5 years. If there is a verbal contract, the time limit is only 4 years.

Slander, defamation and libel

If you are trying to build a business, the last thing you need is for someone to slander you and your company. When your reputation has been damaged due to slander, libel or defamation, you have 2 years from the date of injury to file a suit in Florida against the slanderer.

Fraud

The statute of limitations for a lawsuit arising from fraudulent actions is 4 years. There are many other factors that affect the SOL period.

If you believe you are a victim of business fraud, contact our business lawyers today. Give us a call at 954-779-7009.

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Posted in breach of contract, business, South Florida | No Comments »

Defend your Company in Breach of Contract Lawsuits

August 18th, 2010

By Mark Schecter | No Comments »

business personIf your business is involved in a dispute or has been sued, it is imperative that you understand how to defend and protect your interests.

Let’s review legal defenses that are commonly used to defend small businesses against breach of contract claims. You may find that one or more of these defenses apply to your situation.

Implied Covenant of Good Faith and Fair Dealing

The implied covenant of good faith and fair dealing requires all parties of a contract to adhere to the contract’s original purpose. It’s a defense that is relied on in many contract disputes. In Florida, the court has made it clear that this defense cannot negate the terms of a valid contract.

Unconscionable Contract Terms

A contract is considered unconscionable when the terms are unjust or unfair. In Kohl v. Bay Colony Club Condominium, Inc., 398 So. 2d 865, 868 (Fla. 4th DCA 1981), the Florida court held that when the terms of the contract are unfair and unreasonable at the time the contract was entered into, unconscionability can be used as a legitimate defense to a breach of contract claim.

Statute of Limitations

There is a limited period of time in which you can bring forth a breach of contract action. In Florida, a breach involving a written contract must be filed with the court within five years. If this does not happen before the time period expires, the injured party can be permanently barred from recovering damages for any of its losses.

Impossibility of Performance

If you are unable to perform as per a contract due to circumstances beyond your control, this is referred to as “impossibility of performance.” In Home Design Center Joint Venture v. County Appliances of Naples, Inc., 563 So. 2d 767, 770 (Fla. 2d DCA 1990), the court established impossibility of performance as a legitimate defense to some breach of contract claims.

Above is merely a partial list of defenses that are used in breach of contract lawsuits. If your company has been accused of failing to fulfill the obligations of a contract, consult a knowledgeable contract attorney to discuss how to best defend your company. You may find additional defenses available to you that are not covered in this article.

Contact our contract lawyers to discuss how you can defend your company against breach of contract claims.

You can use this form to email or call us at (954) 779-7009.

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Posted in breach of contract, business, small business | No Comments »

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