Articles Posted in Commercial and Business

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If you are someone to whom a business owes money and that business files for Chapter 11 bankruptcy, you may begin to hold grave concerns about whether or not you’ll get paid in full… or maybe whether you’ll get paid at all. Creditors do not lose all their rights to collect just because a debtor files for bankruptcy, though. If you find yourself in that position, be sure you act without delay to retain the services of a skilled South Florida commercial bankruptcy attorney to preserve your right to collect, or at least minimize your losses.

Recently, a Tampa builder was in exactly that sort of position. The builder had inked a deal with a local veterinarian’s LLC to do approximately a half-million dollars of interior finish work on the veterinarian’s new clinic in Tampa. However, in the middle of the project, the LLC filed for Chapter 11 bankruptcy.

The builder wisely took the step of retaining counsel and filing a claim in the bankruptcy case. In most bankruptcy cases, a creditor has only a limited period of time in which to file a proof of claim. In a Chapter 11 case, the bankruptcy judge will enter an order that sets the deadline date for that case. Soon after the court enters that order, the debtor is required to send notice to all known creditors telling them when that deadline date is.

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There are many reasons why the pursuit of your commercial litigation might proceed slowly at times. Perhaps you need to amass more evidence to make your case. Maybe there were other reasons that slowed the process. It is important to be careful in permitting too much time to elapse, though, as a prolonged delay may result in a fatal outcome for your case known as a dismissal for “failure to prosecute.” To make certain that your case is proceeding as it should, it helps to have a diligent and reliable South Florida commercial litigation attorney on your side from the start.

While the risk of a dismissal for failure to prosecute is very real, it’s worth noting that Florida erects some very substantial limits on when your case can be thrown out due to inactivity… and when it can’t.

As an example, we can look at this recent case from Miami-Dade County. The plaintiff was a lighting company that retrofits buildings with LED lighting systems. In 2012, the company sued a condo association for breach of contract. Seven years and two months after the filing of that complaint, the trial court sent the company a “Notice of Lack of Prosecution.”

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When you hear the phrase “intellectual property litigation,” the first thing that probably leaps to mind is taking action to protect your intellectual property rights. Of course, there’s actually another side to that coin, which is taking action to defend against a claim of intellectual property infringement. When someone has wrongfully accused your business of encroaching on their intellectual property rights, you need the help of a skilled South Florida commercial litigation attorney experienced in intellectual property cases to get you the outcome your business deserves.

One way this kind of lawsuit can happen is if the business suing you had a valid copyright and/or trademark, but your conduct didn’t actually encroach on their intellectual property. In a recent case from federal court, the plaintiff was a dealer of used cars with locations in Central and South Florida. The dealership owned the copyright and trademarks on a stylized version of the phrase “DON’T PAY MORE” in white all caps, enclosed in alternating red and black boxes.

The defendant was a Lakeland auto dealer who had billboards on Interstate 4. The Lakeland dealership’s billboards said, “NEED A USED CAR?” on the top, “Don’t Pay More” on the bottom and the dealership’s name in the middle. The Lakeland dealership’s billboards used a different font, and contained no black or white, instead using only blue and a different shade of red.

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In most breach of contract cases, the correct remedy for any wrongdoing by the defendant is an award of money damages reflecting the extent of the economic losses that the plaintiff proved. In some circumstances, though, when a case revolves around a parcel of property, it may be true that the only way for that victim of breach to be what the law calls “made whole” (meaning fully compensated) is by an order of specific performance, which means forcing the owner to transfer the property to the plaintiff who was harmed by the breach. Whether the recovery you need is an award of money damages or an award of specific performance, make sure you have the adept legal representation your case needs by retaining a skilled South Florida real estate attorney.

So, what does it take to get specific performance – or to keep your opponent from getting specific performance – in Florida? A recent contract dispute case from Miami offers a good illustration.

In 2008, a developer group purchased a property in the financial district. Within that 2008 sales contract, the buyer and the seller included a provision creating an option for the seller to repurchase the property. In 2015, after the seller unsuccessfully sought to exercise that option, it sued for breach of contract.

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Getting the right legal representation when you’re preparing to enter a commercial lease is important in many ways. Your knowledgeable South Florida landlord-tenant attorney can, of course, help you negotiate your lease. In addition, however, your attorney can help you obtain a clear understanding of what rights and responsibilities you do – and don’t – have under your lease, and provide effective advocacy to ensure that you are not held to a higher standard (or more obligations) than what the lease agreement actually prescribes.

A federal case that originated here in South Florida is a good example. The lessee was a major “big box” home improvement store. The lease agreement, signed in 2006, established an initial 20-year term. The lease gave the lessee the option to “construct and operate a retail building.” If the lessee didn’t exercise that option, then that failure to exercise the option gave the landlord the right to increase rent or terminate the lease.

Two years into the lease, the tenant had constructed and opened one of its stores on the property. Five years after that, misfortune struck. A suspected arson fire did significant damage to the building. The local government inspected and determined that the building needed to be repaired or demolished. The tenant opted to do the latter, and also decided not to rebuild.

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Sometimes, when you’re a defendant in a commercial litigation action, success is measured by the ability to avoid liability and avoid paying any damages. Other times, though, the possibility of paying $0 in damages is not realistic. Even then, there are still important goals to reach; namely, avoiding paying more in damages than the law says you really should owe. As a defendant, whether you are seeking a defense verdict or just to minimize the damages you owe, be sure to retain a skilled South Florida commercial litigation attorney to help you reach your goals and protect your business interests.

A concrete contractor from Davie was one of those commercial litigation defendants. The recent case revolved around the construction of a new airport taxiway, and several other improvements, at the Fort Lauderdale-Hollywood Airport. The owner, Broward County, hired several entities to handle the work, including the entity from Davie, which served as the general contractor.

There were problems with the new taxiway’s construction, as the county spotted flaws on the taxiway’s surface. Eventually, the county ended up hiring a different engineering firm to reconstruct the taxiway, costing the county millions of dollars. That led the county to sue several contractors involved with the allegedly defective initial construction of the taxiway. The trial court found that the county had suffered $6 million in damages and ordered the general contractor to pay the county $900,000.

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As shareholder, you may eventually find it necessary to contemplate a derivative lawsuit. Like anyone considering legal action, you must identify what your goals are, and also identify what your potential risks are. For some types of shareholders, the fear of the negative repercussions of defeat may intimidate them into not taking action. Fortunately, a recent case from Miami-Dade County offers some potentially good news for certain shareholders considering derivative actions. In short, don’t let your fear scare you away from asserting your rights. Instead, reach out to a knowledgeable South Florida shareholder litigation attorney to get the advice you need about your case.

In that recent case, R.C. filed a shareholder derivative suit in Miami-Dade County against a corporation and several of its directors. The corporation fought back by filing a motion to dismiss the shareholder’s lawsuit.

After an independent investigator completed her work and issued her report, the trial judge dismissed R.C.’s lawsuit with prejudice, which meant that he could not re-file. After winning the motion, the corporation asked the court to order the shareholder to pay attorney’s fees and costs, including the costs related to the independent investigation.

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Whenever you prepare to enter into a commercial contract, you almost certainly have a range of outcomes that you’d define as “likely” regarding how the arrangement will work out. A good commercial contract will have “failsafes” that protect your position, not only when the project achieves an expected outcome, but also when the project is far more successful – or a much bigger failure — than you would have ever imagined. This way, a truly complete commercial contract can protect your interests whatever the final outcome. For these reasons and more, be sure to seek representation from an experienced South Florida commercial contract attorney when it comes time to draft your next deal.

A recent case decided by the federal 11th Circuit Court of Appeals (whose ruling directly impact Florida, Georgia and Alabama,) offers an example of how things can go wrong and how you can be harmed if you have the wrong contract.

The parties to the contract were an insurance brokerage firm and a company that provided consulting services related to helping life insurance companies set up plans. The contract called for the consulting firm to provide services to the brokerage firm, including substantial pre-rollout services. The agreement included various provisions related to compensation, including one that said that, notwithstanding a deferral provision, “no payment shall be made” to the consulting firm “in excess of 20% of any commission payment.”

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Due in part to the nature of its geographic location and its culture, Miami has a strong connection with much of the Caribbean and Latin America. While business activities in other parts of the U.S. might spill across state lines, here in Florida, business activities (and their related legal actions) often cross national borders. If you find yourself needing to undertake a legal proceeding in Florida to enforce rights you acquired in another country, you need to be sure you have the right South Florida commercial litigation attorney on your side.

A recent court battle involving a Chilean wine company is a good illustration. A Chicago-based LLC had an investment in the wine company (it had purchased 4.24 million shares) and it also had a Shareholders’ Agreement that was created to protect its interest in the wine company. The agreement stated that, if certain breaches occurred, the LLC could demand that the majority shareholders of the wine company buy back the LLC’s shares at a premium price.

Eventually, a dispute erupted related to the agreement, which led to arbitration in Chile. The Chilean arbitrator ruled in favor of the LLC and awarded it $28 million.

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Especially here in South Florida, businesses frequently find themselves doing business with entities based outside the United States. Whether your contractual partners are based in the USA or elsewhere, it is extremely important to make certain that the arbitration clause in your agreement is drafted with the utmost care. That’s because, whether you’re using Florida rules, federal rules or United Nations rules, if you’ve included provisions about how arbitration will occur (or if it is to occur at all,) the courts will generally follow what’s in that contract. This is another reminder of the profound importance of having a skilled and knowledgeable South Florida commercial contract attorney on your side as you negotiate and draft your commercial agreement, because even one seemingly small provision can have major consequences.

A recent CBD oil contract dispute from South Florida is a good example. The plaintiff was an El Salvador-based supplier of hemp-based biotechnology. The defendant was a Doral-based distributor of CBD oil products. The two entities had a distribution agreement whose arbitration clause indicated that “exclusive International Arbitration through JAMS International using UNCITRAL rules in New York.” The contract also specifically declared that a United Nations convention on International Sales of Goods did not apply.

Just four months after the two entities inked their distribution agreement, the supplier served a demand for arbitration on the distributor. Three years later, the dispute (which encompassed a mixture of contract and tort law claims) went before an arbitration panel, which found for the supplier, awarding $3.9 million in damages.

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