My last blog post addressed the differences between derivative and direct actions. Only a few weeks ago, the Florida Third District Court of Appeal issued an opinion clarifying the requirements for a direct action. A full copy of the opinion can be found here.
Category: Commercial Litigation & Business Disputes
Florida LLC Litigation: Theft or Other Misconduct by a Managing Member of an LLC
In the context of Fort Lauderdale business litigation, some members of Florida limited liability companies, also known as “LLCs,” learn that the managers or other members of the LLC have wrongfully taken funds from the company, or have otherwise harmed the company by breaching their fiduciary duties to the company. When this happens, the members’ ownership interests in the company—which entitles them to distributions of the company’s profit—are usually dramatically reduced or completely eliminated. Understandably, these members may wish to sue the managers and members whose conduct caused their losses. READ MORE
I recently wrote about the enforceability of forum-selection clauses in Florida business contracts. The Florida Third District Court of Appeal recently issued an opinion enforcing a forum-selection clause. A full copy of the opinion can be found here.
The case, Quick Cash, LLC v. Tradenet Enterprise, Inc., involved a business contract between two corporations, one of which filed suit in Florida. The defending corporation moved to dismiss the lawsuit, because the contract in question provided that jurisdiction and venue would be in another State. READ MORE
In my last blog post, I wrote about the importance of including in a Florida business contract an “attorney’s fees” provision that permits a party to a contract to recover its attorney’s fees from the other party to the contract if it sues over the contract and “wins.” Moreover, I alluded to the existence of other important provisions in Florida business contracts, but did not specify those provisions. READ MORE
As a Fort Lauderdale commercial litigation attorney, my Florida business clients frequently request that I review and draft their contracts. In addition to capturing the parties’ intentions regarding the key aspects of the transaction for which their contract is drafted—and avoiding ambiguities and inconsistent provisions that might fuel a potential business dispute—most business contracts contain certain boilerplate terms that will be “virtually the same” in every contract. These provisions are included for good reason (they’re important!), even though lawyers may differ as to what they should say. READ MORE
I’ve previously written about Florida business litigation solutions for corporate deadlock, but, in that prior blog post, I addressed only a single method of resolving corporate deadlock and mismanagement: dissolution and liquidation of the corporation. In this post, I will describe a second, alternative solution: receivership. READ MORE
The great, late entrepreneur, Steve Jobs, once said, “Great things in business are never done by one person. They’re done by a team of people.” But what if that team of people can’t agree on how the business should be managed? What if one of the members of the team steals or mismanages the company’s assets, causing harm to the company? READ MORE
Earlier this month, the Fourth District Court of Appeal issued an opinion in Pro Finish, Inc. v. Estate of All American Trailer Manufacturers, Inc., — So. 3d —-,2016 WL 4132721 (Fla. 4th DCA 2016). Fort Lauderdale business lawyer Justin Carlin represented the appellant after handling the case at the trial level. The decision is important, because there is little case law on Chapter 727 assignment-for-the-benefit of creditors proceedings (so-called “ABCs”), and the proceedings have been widely used by debtors who don’t qualify for bankruptcy but who seek to evade creditors’ claims.
The opinion issued in the case can be found here. Here’s a portion of the Court’s ruling, which, for the first time in Florida, makes clear that the provisions of Chapter 727 are to be strictly construed and that the failure to adhere to those provisions renders the assignment void:
Chapter 727 “provide[s] a uniform procedure for the administration of insolvent estates, and . . . ensure[s] full reporting to creditors and equal distribution of assets according to priorities as established under [chapter 727].” § 727.101, Fla. Stat. (2013). Section 727.104(1), Florida Statutes, provides the form of the assignment and requires compliance with it. § 727.104(1), Fla. Stat. (2013); see Smith v. Effective Teleservices, Inc., 133 So. 3d 1048, 1050–51 (Fla. 4th DCA 2014). The June 11, 2013 Assignment did substantially follow the required form. “Section 727.104 . . . [also] requires the assignee to record the assignment in the public records as well as to file a petition and bond in the circuit court.” Moecker v. Antoine, 845 So. 2d 904, 910–11 (Fla. 1st DCA 2003). Subsection (2) requires that this be done within ten days after delivery of the assignment to the assignee. § 727.104(2), Fla. Stat.
Here, the record lacks evidence as to when the June 11, 2013 Assignment was recorded. The only record evidence of the June 11, 2013 Assignment is a copy attached to the ABC Proceeding petition. It does not indicate whether or when it was recorded. But, the creditor also argues the assignee failed to file the ABC Proceeding petition within the section 727.104(2) time limits. The creditor suggests the failure to timely petition the trial court for the ABC Proceeding “is in direct contravention of Chapter 727 and violates public policy, which favors the expedient payment of just debts to creditors and prompt notice to creditors of an assignment of the debtor’s assets.” We agree and reverse.
“There is little case law addressing chapter 727, and none addresses the issues presented here.” Lanier, 898 So. 2d at 144. However, “the provisions of an assignment which are inconsistent with the applicable statute are void, and the assignment as a whole is void where it fails to comply with such a statute, or is against public policy.” 21 C.J.S. Creditor and Debtor § 9 (footnotes omitted). Here, the assignee failed to file the petition in the circuit court within ten days of delivery of the assignment. The assignee petitioned for the ABC Proceeding on November 26, 2013, and signed the acceptance of the June 11, 2013 Assignment on July 15, 2013. Although the June 11, 2013 Assignment met the section 727.104(1) form requirements, the untimely filing invalidated the ABC Proceeding under section 727.104(2).
If you’re in need of a Fort Lauderdale business lawyer to assist you with a complex business litigation matter or appeal, call (954) 440-0901 or e-mail firstname.lastname@example.org.
By: Justin C. Carlin
As a business litigator who depends on business litigation cases to sustain my business law practice, it may seem strange that I would write a blog post about how to avoid litigation. But my goal as a business attorney is to provide valuable services to people, so I’ve always made it a practice to assist my clients with avoiding litigation, even though I am a litigator. Here below are my top five strategies for avoiding business litigation in South Florida: READ MORE
By: Justin C. Carlin
Businesses who do not require advanced payment for services frequently find themselves without any kind of payment for their services. In more unusual circumstances,
they encounter a client or customer who tenders a worthless check for services performed or, in an effort to defraud the business, stops payment on a check after services are performed. As infuriating as it may be to not get paid and have to pay bank service charges because of a non-paying client, Florida Statutes Section 68.065 (known as Florida’s Worthless Check Statute) provides a remedy for businesses or individuals who are the recipients of bad checks, drafts or orders of payment. It reads: READ MORE