Tag: pollack pollack & kogan

DEBT COLLECTION SERIES: Successor Liability

Are you having trouble collecting a business debt? To make matters worse, is the business you are trying to collect against dissolving right before your eyes? You might have been told when the company is gone and out of business, that so are your chances of collecting on your debt, but that may not be correct. In Florida, creditors, including judgment creditors, have a variety of collection tools at their disposal to help fight the elusive type of duck-and-cover tactics employed by some business debtors. This article will introduce to you some examples of Florida’s solutions to the voluntarily dissolution of debtor-businesses that essentially continue to operate under a different name, in the same physical location, with same or similar executives, and/or using the assets of its predecessor.

Under Florida law, courts will impute the liabilities of a business onto its successor where it is evident that a de facto merger has occurred or where the successor business is a mere continuation of its predecessor. “A de facto merger occurs where one corporation is absorbed by another, but without compliance with the statutory requirements for a merger.” Amjad Munim, M.D., P.A. v. Azar, 648 So. 2d 145, 153 (Fla. 4th DCA 1994); see also Lab. Corp. of America v. Prof’l Recovery Network, 813 So.2d 266, 269 (Fla. 5th DCA 2002). Certain indicia of a de facto merger include: the same management, personnel, or assets; the successor operating out of the same physical location; a continuity of stockholders; and the dissolution of the predecessor business.

The concept of continuation of business arises where the successor corporation is merely a continuation or reincarnation of the predecessor corporation under a different name.” Id. Similar to de facto mergers, the court’s primary is whether the change from predecessor to successor business is one of form, but not substance. In these instances, creditors may file an action against the successor business for the debt owed by its predecessor. The procedure and strategy associated with this sort of legal action will be the subject of a future article in this Debt Collection Series.

Should you find yourself chasing a debtor-business attempting to escape its liabilities by continuing its operation under a new name, remember that the stresses associated with debt collection can be eased by retaining experienced collection attorneys that understand the variety of remedies and strategies available under Florida law. For questions regarding debt(s) owed to you, the collection attorneys at Pollack, Pollack & Kogan LLC may assist you in obtaining a meaningful resolution. This article is for informational purposes only and not intended as legal advice.

Author: Anthony Lopez, Esq. – Florida licensed attorney at Pollack, Pollack & Kogan, LLC, a law firm focused on commercial debt collection, business litigation, and probate litigation.

protect your business assets and investments with pollack polllack & kogan

Protect your Business Assets and Investments with a Business Consultation

The US economy continues showing signs of improvement.  The DOW Jones Industrial Average hit record highs, surpassing 20,000 in January.  The January United States Jobs Report indicates that the economy added 227,000 jobs in January 2017.  With all of these positive economic developments, now is the time to set up a consultation to analyze your business and help protect your business’s assets.  At PPK Firm, we can help you protect your employees, intellectual property, and profitable business relationships with proactive legal advice and counseling.

To read more about the performance of the DOW:  https://www.theguardian.com/business/2017/jan/25/dow-jones-industrial-average-breaks-record-20000

To read more about the January Jobs Report: http://money.cnn.com/2017/02/03/news/economy/january-jobs-report/index.html

Business Confidentiality Agreements Are Not “One Size Fits All”

It’s no secret that entrepreneurs tirelessly strive to perfect their ideas and to outperform competition in the marketplace. In doing so, many successful businesses spend significant investment cultivating a model that’s unique to their marketplace, which often results in the compilation of valuable data that must remain a secret to competitors. A “competitor” is not always a person outside the company payroll, yet disclosure to employees is often inevitable in order for the business to properly function. This is especially true for smaller companies given that they usually expose to employees the day-to-day operations when relying on their employees to carry out duties. So to prevent this information from sneaking out the front door (and turning into a copy business overnight), this article discusses one way companies protect their intellectual property from unfair business competition.

Florida business law recognizes the struggles between preserving confidential business information and disclosing such information to employees. Under Section 542.335, Florida Statutes, companies may require employee to sign confidentiality or non-competition contracts as a condition of employment to protect the company’s confidential information. As their names imply, a business confidentiality contract generally seeks to prevent a person from disclosing certain information, often learned through his or her employment. On the other hand, a non-compete contract looks to prevent an employee from competing in the same market as the employer for a specific duration of time.

These contracts have quickly become useful in a vast majority of business sectors. This is because whether one’s business competes in the tech-driven mobile application realm, or the next trendy tattoo parlor, today’s digital age inevitably produces sensitive information worth protecting. For this reason, these contracts are not a one size fits all. A sloppy and loose contract, not tailored to the specific business, runs the risk that a cunning individual could simply circumvent the contract; or even worse, the contract may simply be found to be unenforceable. At the same time, even if a business already relies on these contracts, a rapidly expanding business may have outgrown its contractual terms. Therefore, companies should periodically revisit their contracts to ensure that they comfortably fit the company’s business (metaphorically speaking).

Understanding the type of information one’s business creates is often an initial step in properly tailoring your contract. For example, technology’s ability to data mine and compile large amounts of customer and market data analysis is a detail that should not go overlooked within the contract’s language. Also realizing your current market reach and geographic regions where business has expanded into is vital to ensuring the business has a properly tailored contract. The following is a non-exhaustive list to help you determine whether your business information could rise to level of proprietary information:

  • Vendor and contractor identities not generally known to the public
  • Client contact information and profile lists and compilations
  • Pricing and promotional structures
  • Specialized employee training
  • Marketing and advertising information and strategies
  • Information deriving economic value from not being generally known with efforts to maintain its secrecy (i.e., trade secrets)

In conclusion, ignoring the value in your intellectual property could leave your business at risk of being cloned by a competitor from within. Among many important tools to help businesses protect their intellectual property, a strong non-compete and confidentiality agreement can often become the first line of defense. Each state differs, but in states that have a history of decisions similar to Florida, courts favor enforcing these reasonable contracts when the business shows the contract is supported by a legitimate business interest. For questions regarding your confidentiality or non-compete contracts, the attorneys at Pollack, Pollack & Kogan LLC may further assist your concerns. This article is for informational purposes only and not intended as legal advice.

Author: Justin Maya, Esq. – Florida licensed attorney at Pollack, Pollack & Kogan, LLC, a business, commercial litigation, and probate litigation law firm.

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Trademark Owners Policing the Internet for Counterfeit Goods

Businesses have understood the importance of trademarks and brand recognition for hundreds of years. In today’s internet and smartphone world, this is especially true given the billions of users shopping online via e-commerce marketplaces such as eBay, Amazon, Groupon, and the like. In fact, with over 80% of Americans using the internet daily, businesses worldwide continue to set unprecedented levels of investments in their brand imaging, and in filing trademark applications to protect their image. In large part, a brand’s reputation, when connected with quality in a consumer’s mind, provides online shoppers with a strong preference when making a quick purchase decision, thus removing the costs affiliated with closely inspecting the item.

A trademark is “any word, name, symbol, or device, or any combination thereof” that is used “to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods.” 15 U.S.C. § 1127 (2016). With trademark owners’ increased focus in servicing internet presence and demand, with this, come increased numbers of companies that facilitate in the sales transaction between an online buyers and sellers (e-commerce marketplaces, like eBay; online payment systems, like PayPal).

E-commerce marketplaces have unfortunately created plenty of opportunity for counterfeiters to unlawfully exploit trademark owners by selling knockoff goods to consumers online. Each year, in the United States alone, hundreds of billions of dollars in counterfeit goods flood the borders from foreign countries. For instance, during December 2016, the White House’s Office of the Intellectual Property Enforcement Coordinator (IPEC) issued the U.S. joint strategic plan on IP enforcement noting that in 2015, 52 percent of goods seized by U.S. Customs and Border Protection originated in China. Much less obvious are the millions of U.S. jobs supporting the intellectual property industry, as highlighted by IPEC’s joint strategic plan; counterfeit goods damage the job market and circumvent taxes creating a substantial and harmful ripple effect in the U.S. economy.

Counterfeiters located abroad rely on marketplace websites for the vast majority of their sales. As such, while trademark owners strive to build goodwill among their consumers, by ensuring that each item produced meets a specific quality threshold, at the same time, trademark owners must quickly locate and disable online counterfeiters to avoid affiliation with unsafe and poorly manufactured goods. Due to the internet’s anonymity, companies face very difficult challenges to police the internet and enforce their legal rights against counterfeit infringement. Accordingly, massive financial and employment losses have left trademark owners with many questions on how to hold the enablers––such as Internet Service Providers, Online Payment Systems (e.g., Paypal), marketplace websites, and domain name registrars––liable for the infringing activity occurring by their counterfeit users.

Under United States federal law, the Lanham Act provides trademark owners enforcement methods to protect their trademark against the likelihood of confusion, often arising when another infringes or counterfeits a good that bears a protected trademark. See e.g., Rosetta Stone Ltd. v. Google, Inc., 676 F.3d 144, 152 (4th Cir. 2012). Remedies for trademark infringement may include: lost profits, compensation for harm or damage sustained, the costs of the lawsuit, attorneys’ fees, statutory damages, and/or injunctive relief. See 15 U.S.C. § 1114. For questions regarding your trademark or suspect unlawful sales of fake and counterfeit goods, the attorneys at Pollack, Pollack & Kogan LLC may further assist your concerns. This article is for informational purposes only and not intended as legal advice.

Author: Justin Maya, Esq. – Florida licensed attorney at Pollack, Pollack & Kogan, LLC, a business, commercial litigation, and probate litigation law firm.