I want to start my own business. How do I know what business entity is right for me?

Starting your own business is an important decision. One of the first things you must decide is what type of business organization you want to create and operate. When determining what business entity is right for you, you will need to consider, among other things, how many owners the company will have, how the owners intend to finance the business, the tax consequences, the disbursement of losses, limited liability concerns, and whether there exist any regulatory rules governing the particular business. Answers to the above will help you determine whether your business should be a sole proprietorship, a partnership, a limited partnership, a limited liability company, or a corporation (or a variation of). Depending on the business entity, you will have to file certain forms with the Florida Department of State, registering your business and its owners. Pollack, Pollack & Kogan, LLC, a business litigation firm, can assist you in determining what business organization is right for you, as well as assist you in filing the necessary paperwork with the Florida Department of State.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

Can a foreign corporation transact business in Florida? Can a foreign corporation bring a lawsuit in Florida? What about a foreign limited liability company?

A foreign corporation (a business which was incorporated in a state other than Florida) may transact business in Florida, but it must first obtain a Certificate of Authority from the Department of State, and continuously maintain a registered office and agent in Florida. There are however certain exceptions, and Florida law specifies which activities do not constitute transacting business in Florida and thus do not require a Certificate of Authority (for example, interstate commerce or defending a lawsuit). Among other consequences, failure to obtain a Certificate of Authority when required by Florida law may make the foreign corporation liable to the State of Florida for fees, taxes, and civil penalties, and may preclude the foreign corporation from bringing or maintaining a lawsuit in Florida until the Certificate of Authority is obtained.

Assuming all necessary filings have been made with the Department of State, a foreign corporation can bring a lawsuit in Florida. However, just like a nonresident Plaintiff, a foreign corporation is required to post a $100 bond with the Florida Court prior to brining a lawsuit in Florida. These same general principles regarding transacting business in Florida and bringing a lawsuit in Florida similarly apply to foreign limited liability companies. Pollack, Pollack & Kogan, LLC is a business litigation firm and can assist foreign corporations or limited liability companies by obtaining a Certificate of Authority from the Florida Department of State and litigating the company’s business matters in the state of Florida.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Many claims have time limitations, so you should pursue your rights in a timely manner.

Can I bring a breach of contract lawsuit if I do not have a written contract?

Generally, both written and oral (verbal) contracts are enforceable by Florida law. However, under Florida’s Statute of Frauds, certain contracts must be in writing before you can bring a lawsuit for breach of contract (among others are contracts for the sale of real property, contracts for the sale of goods worth $500 or more, and certain lease agreements). If you cannot bring a breach of contract claim, Florida law may offer another remedy. Pollack, Pollack & Kogan, LLC can evaluate your contractual dispute and assist you in prosecuting or defending this type of action.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Many claims have time limitations, so you should pursue your rights in a timely manner.

What is a Non-Competition Agreement? Can I be sued for violating a Non-Compete Contract?

Non-competition Agreements, also known as Restrictive Covenants or Non-Compete Contracts, are frequently used in employment and business contracts. There are various forms of Non-Compete Contract restrictions, including restrictions against solicitation of employees, solicitation of customers, and competition in general. The purpose of a Non-Competition Agreement is to prevent employees from using and/or disclosing information about the business (such as trade secrets, confidential business information, and client information) and to prevent employees from improperly taking clients or employees, or unfairly competing with their former employer for a period of time during and even after an employee leaves his or her employment. However, because Florida does not favor restraints on trade, Non-Competition Agreements are strictly governed by the Florida Statutes and they must be fair or reasonable for the employee. Unfortunately, some employers try to improperly enforce these Restrictive Covenants against their former employees. A Non- Compete Contract will only be enforced if it is in writing, reasonable in time, area, and line of business, and justified by a legitimate business interest. A Non-competition Contract may not be legally enforceable if it is not properly drafted, if it fails to have certain requirements or if it is unreasonable. If a Non-Compete is proper and binding, the employer may be able to obtain an injunction prohibiting the employee from violating the agreement. Often, the prevailing party in a lawsuit with Non-Compete Contracts will be entitled to recover their attorney’s fees and costs. Pollack, Pollack & Kogan, LLC, a business litigation firm, can help draft Non- Competition Agreements to fit your business interests, and can we assist in enforcing, or defending claims against Non-Compete Contracts. We are also available for consultations to discuss the enforceability of Non- Competition Agreements.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.

What is an Injunction?

An injunction is a procedural tool, governed by Rule 1.610 of the Florida Rules of Civil Procedure, which is used to ask the Civil Court for immediate (temporary or permanent) relief. Temporary Injunctions can take effect before the final determination of a case. Injunctions are a type of Court Order which directs someone to do or not to do something in order to prevent future harm. Because injunctive relief is considered an “extraordinary remedy,“ the person asking for this relief must show, among other requirements, that he/she is likely to succeed in the underlying case and that severe harm will occur if the injunction is not granted. In certain emergency circumstances, where there is an immediate threat of severe harm, an injunction can even be granted against someone without prior notice to that person, or a hearing before the judge. The person asking for an injunction is required to post a bond in an amount determined by the Court. Practicing in the field of commercial litigation, and business and contractual disputes, Pollack, Pollack & Kogan, LLC has experience in both obtaining injunctions to prevent future harm, and defending against improper injunctions that have been filed in violation of Rule 1.610.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Many claims have time limitations, so you should pursue your rights in a timely manner.

How do I know if I have been defrauded?

Fraud can take many forms and faces. The legal definition of fraud is an intentional misrepresentation of a material fact (or intentional withholding of information), causing another person to rely on it, and causing damage to that person as a result. Fraud can occur in the course of simple contractual transactions, as with private loans and mortgages, or in the course of more complicated transactions, as between businesses, shareholders or members of a company, and in bankruptcy matters. Many people are embarrassed to admit that they have been defrauded—don’t be; some of our smartest and most sophisticated clients have been the victims of fraud and conmen. If you believe that you and/or your business have been defrauded, or if you are wrongfully accused of fraud, Pollack, Pollack & Kogan, LLC can evaluate your claim and assist you in prosecuting or defending against a fraud action. We are available for consultations regarding fraud.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Many claims have time limitations, so you should pursue your rights in a timely manner.

What is a Will? What happens when a loved one passes away without a valid Will?

It is prudent to have an estate plan which details how real and personal property (your estate) should be distributed upon death. The most common form of an estate plan is a Will, which is a legal document that explains how a person’s property is to be distributed upon death. A Will is also used to appoint a Personal Representative – a person chosen by the deceased to administer the estate. Among other things, the Personal Representative collects all of the estate’s assets and distributes them in accordance with the deceased’s wishes. Florida law details how to execute a Will in order for the document to be valid and legally enforceable.

However, not everyone leaves behind a Will. If a person dies without a Will (or if the only existing Will is declared invalid by the Court), the estate is distributed by the laws of intestacy. This means that Florida law (more specifically Florida’s Probate Code) governs how the person’s property is distributed upon death, and who will be appointed Personal Representative. Depending on the circumstances, an intestate estate is usually distributed between the spouse and children, and the spouse or children are the statutorily preferred people to serve as Personal Representative. If your loved one passed away, with or without a Will, Pollack, Pollack & Kogan can assist you in determining whether you are an heir or a beneficiary of the estate, whether the right person has been named Personal Representative, and whether and how you should Petition the Court for Probate of an Estate. We are also available to represent you with the administration of an Estate.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Many claims have time limitations, so you should pursue your rights in a timely manner.

A Will names me as the Personal Representative. What does that mean? What are the responsibilities of a Personal Representative?

Being named Personal Representative of an estate is an important responsibility. Whether you were named Personal Representative in a Will, or you are the preferred Personal Representative pursuant to Florida’s intestacy laws, the qualifications of a Personal Representative are strictly governed by Florida’s Probate Code, and the Court will ultimately decide whether you are qualified to serve. A Personal Representative must be 18 years or older, and be a resident of the state of Florida at the time of the decedent’s death. If you have been convicted of a felony, or are mentally or physically unable to perform the duties, you are not qualified to serve as a Personal Representative. If the Court determines that you are qualified, the Court may formally appoint you as Personal Representative by issuing Letters of Administration. Once appointed, you must accept your appointment by signing the Oath of Personal Representative, declaring that you will faithfully administer the estate, and, if applicable, designate an attorney of your choosing to represent you in the proceedings. The powers, duties and responsibilities of a Personal Representative are governed by Florida’s Probate Code, and include a fiduciary duty to settle and distribute estate assets according to the wishes of the decedent as expressed in a Will, or according to the laws of intestacy. If you have been named or selected to serve as Personal Representative, Pollack, Pollack & Kogan, LLC can assist you with performing your duties.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Many claims have time limitations, so you should pursue your rights in a timely manner.

Can a Will be challenged?

Yes, a Will can be challenged if it does not reflect the true wishes of the decedent, such as when a person did not have the capacity to create a Will or when another person improperly influenced the contents of the Will. An action can be brought in the Probate Court disputing the validity of the Will, and/or the manner in which property is distributed. For example, if the decedent was mentally incapacitated at the time the Will was signed, the Will may be invalid due to lack of capacity because the decedent did not fully understand the manner in which his/her property would be distributed upon death. A Will can also be challenged for undue influence. In other words, if the Will is the result of someone’s unlawful manipulation of the decedent, then that Will may be invalid because it doesn’t express the true wishes of the decedent as to how he or she wants property to be distributed upon death. If the Court determines that the Will is invalid, the estate may be administered according to a prior Will (if one exists) or according to the laws of intestacy.

However, not everyone can dispute a Will. According to Florida law, only an interested person can challenge a Will. An interested person is one that stands to benefit if the challenge is successful. Although every situation is different, when challenging the validity of the Will, a good rule of thumb is to ask yourself: “Will I receive a benefit from the estate, whether under a prior Will or through intestacy, if the Court says the challenged Will is invalid?” Pollack, Pollack & Kogan practices in the area of probate litigation and can advise and represent you in matters pertaining to Will disputes.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Many claims have time limitations, so you should pursue your rights in a timely manner.

Can I file a lawsuit if I have been cheated out of my inheritance?

Depending on the circumstances, you may be able to sue to recover your inheritance. If someone named you in their Will and you have not received the gift or devise, then you may be able to take action. Further, if you cannot find a Will or someone has destroyed a Will which named you as a beneficiary, you may be able to file an action to probate a lost or destroyed Will. There are other situations where you have the right to sue to collect your inheritance. Pollack, Pollack & Kogan, LLC can assist you with probate litigation.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Many claims have time limitations, so you should pursue your rights in a timely manner.

I am in the business of buying and selling goods. How do I know what my rights are when conducting business with other buyers and sellers?

The sale of goods in Florida is governed by Florida’s Uniform Commercial Code (UCC); more specifically, Chapter 672 of the Florida Statutes. The UCC covers a broad range of regulations pertaining to the sale of goods, such as the creation of the contract, the manner in which goods are to be delivered, the manner in which goods are to be accepted or rejected, inspection, payment, and remedies for breach of contract. The UCC also defines certain terms of the trade such as FOB, FAS, CIF, and C&F, which, when used in a contract, impose certain obligations on buyers and sellers when goods are being transported by a carrier. Pollack, Pollack & Kogan has litigated UCC issues for both domestic and international transactions, and can assist you in determining what your rights are, as a seller or as a buyer, under a sales contract.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Many claims have time limitations, so you should pursue your rights in a timely manner.

What is FDUTPA (Florida Deceptive and Unfair Trade Practices Act) and Can I sue for deceptive advertising or other unfair business practices?

FDUTPA stands for Florida Deceptive and Unfair Trade Practices Act, and is governed by Florida Statutes, Chapter 501. FDUTPA makes it unlawful to engage in unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce. Generally, the purpose of FDUTPA is to protect consumers and legitimate businesses from trade practices that are immoral, unethical, and cause injury to consumers. A classic example of a FDUTPA violation is the “bait and switch” tactic, where a vendor advertises a product at a certain price not intending to sell that product at that price, but rather to attract the customer into the store to sell him another similar product which is more profitable to the vendor. A violation of FDUTPA results in civil penalties, and permits those injured by unfair and deceptive practices to seek individual remedies. Generally, Consumers that have suffered harm due to this type of fraud have a right to sue businesses which engage in deceptive or unfair practices, although there are some exceptions. Pollack, Pollack & Kogan, LLC practices in the field of commercial litigation and can help you seek relief if you have been injured as a result of unfair and deceptive trade practices.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Many claims have time limitations, so you should pursue your rights in a timely manner.

What do I do after I succeed in my lawsuit and obtain a money judgment? How do I collect?

Unfortunately, obtaining the judgment is only half the battle! The subsequent collection of a judgment can often be a long and frustrating process, mostly because the judgment debtor (the person against whom the judgment was entered) may be uncooperative and even try hiding his/her assets. The first step in the collection process is to record a certified copy of the judgment with the Recording Office, which will serve as notice that you hold a judgment for a certain sum of money against that judgment debtor. The second step is to locate the debtor’s assets (i.e., real property, cars, bank accounts, salary or wages from employment, interest in a company). Some research into a debtor’s assets can be done on the internet through resources such as the property appraiser’s website, the public records website, and Sunbiz. The links to these websites for Dade, Broward, and Monroe Counties are provided on our webpage. Many people and even other law firms find this process to be arduous and find that it is easier and more efficient to hire attorneys with experience in collecting judgments. Pollack, Pollack & Kogan, LLC has experience in collecting the most difficult judgment from debtors who go so far as to try to hide their assets. We represent numerous other law firms to help collect their judgments for them. Our firm may be willing to assist you with collecting your judgment on a contingency basis, with the client to pay costs—however, we must evaluate your judgment and the debtor before we can agree to accept your case. Please feel free to contact us today to schedule a consultation.

*The hiring of a lawyer is an important decision that should not be based solely upon advertisements. This web site is designed for general informational purposes only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Many claims, including the collection of judgments, have time limitations, so you should pursue your rights in a timely manner.