There are multiple different types of situations where business litigation may be necessary to address losses or other damages that have affected a company. These cases may involve contract disputes, violations of non-compete agreements, or other situations where a business seeks to recover compensation for losses. However, some business disputes may involve fraud or other criminal actions, and if a plaintiff can demonstrate that another party violated the law, they may be able to recover additional compensation through Florida’s Civil Theft Statute.

Remedies for Civil Theft

Fraud and other forms of theft can significantly affect a company. When another party acts with intent to cause harm or otherwise engages in deceptive practices meant to benefit them financially, this can result in substantial losses. Fortunately, a business that has been the victim of fraud or theft may pursue compensation under the Civil Theft Statute, and if they are successful, they can receive treble damages. This means that they may receive three times the amount of the actual monetary losses they experienced because of the theft. A defendant may also be required to pay a plaintiff’s attorney’s fees.

Demonstrating that theft has occurred is not always easy. Florida courts have ruled that a plaintiff must show that a conversion occurred in which money or assets belonging to one party were illegally transferred to another party, and the defendant must have acted with criminal intent to deprive the plaintiff of property or benefits they would receive from ownership of property. These cases require a “clear and convincing evidence” standard, meaning that based on the evidence, a plaintiff’s claims must be substantially likely to be true.

There are multiple types of situations where disputes may arise between business partners. In some cases, partners may not agree about a business’s goals or the roles and responsibilities of the partners or other business personnel. In others, one partner may believe that another partner has failed to uphold their fiduciary duty to protect the interests of the business. Partnership disputes can have a significant impact on multiple parties, including the partners themselves, other shareholders or investors, and others involved in the business. In many cases, partners will be looking to resolve disputes in a way that will minimize the negative effects on the business while still protecting their financial interests. In many cases, arbitration is an effective way to do so.

Understanding the Arbitration Process

There are a variety of methods that may be used to resolve business disputes. While partners may negotiate agreements between themselves, they may not fully understand the best ways to protect their rights and interests as they make decisions. Litigation in court may ensure that legal issues will be handled properly, but this process can be expensive and time-consuming. Arbitration can provide a middle ground, providing partners with the opportunity to present arguments and evidence to a neutral third party who will determine how the disputes will be resolved.

Partners will need to agree to use arbitration to resolve their disputes. A partnership agreement may include an arbitration clause stating that this process will be used to resolve certain types of disputes. Alternatively, partners who encounter disputes may choose to proceed with the arbitration process instead of pursuing litigation. In most cases, arbitration will be binding, meaning that the parties will need to abide by the decisions made by the arbitrator. 

People or families who are struggling with debt may find that bankruptcy is their best option. Filing for bankruptcy will force creditors to stop any attempts to collect debts that are owed, and it may also put a halt to foreclosure proceedings, wage garnishment, and repossessions of vehicles or other property. When a debtor completes the bankruptcy process, some or all of their debts may be discharged, meaning that they will no longer have the obligation to repay the amount owed to creditors. However, it is important to follow the correct procedures during the bankruptcy process, since failure to do so may result in the dismissal of a case, which will allow creditors to resume their collection efforts.

Reasons for a Bankruptcy Dismissal

During a bankruptcy case, creditors may ask for a dismissal if they believe that a debtor committed violations of bankruptcy laws. The bankruptcy trustee may also take action to dismiss a case if the debtor fails to meet certain requirements. Reasons why a case may be dismissed may include:

• Failure to pay filing fees - A debtor is required to pay certain fees and court costs when filing a bankruptcy petition. If they do not pay these fees as required, the court may dismiss their case. If a person does not have the financial means to pay filing fees, they may be able to apply for a waiver that will allow them to proceed with the bankruptcy process without meeting this requirement.

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Originally published: July 9, 2020 -- Updated: June 17, 2022

Throughout my 20-plus years of practice, and especially recently, I have had substantial involvement in enforcing oral contracts, and in doing so, I have obtained significant payouts for my clients. While there are some situations where courts in Florida may enforce oral contracts, it is essential to understand the limitations that apply. It may be more difficult to enforce these types of contracts since, without a written contract, the parties may be unable to prove the terms, the classic he said she said, and there may be legal principles that prevent enforcement.

May is Mental Health Awareness Month. According to the National Institute of Mental Health, nearly one in five adults in the United States lives with a mental illness. It’s not only prevalent but so many more people are opening up and sharing their own journeys with mental illness in very public manners – from conversations to bigger social media platforms. 

At the Elliot Legal Group, we always want to be sensitive and compassionate to our clients’ personal backgrounds and circumstances. The ability to shine a light on mental illness in May, and beyond, is a fantastic way to normalize the conversations and further remove the stigma. It’s also important to us that our clients who do suffer from any level of mental health issues, know and understand their rights and that they feel seen.

We know that the intricacies of the law are dynamic. They change. They evolve. The law can be confusing and even a little bit tricky to navigate at times. That’s why it’s crucial to have counsel on your side who can help you with legal matters and give you a solid understanding of your rights. Many times, unfortunately people with mental health disorders can get lost in the shuffle and have even been discriminated against within the legal systems in their respective counties and states. 

There are multiple types of industries where non-compete agreements are used regularly by employers to protect their business interests. These agreements may restrict a company’s employees from engaging in certain types of competitive behavior after they leave the company or even while they are still working for an employer. If a former employee commits a violation of a non-compete agreement, a company may need to take legal action to address this issue. There are several possible situations where litigation may be necessary to address the financial losses that were caused by the violation of an agreement or to prevent a business from suffering harm.

Examples of Actionable Non-Compete Agreement Violations

Generally, a non-compete agreement may be used to protect a company’s legitimate business interests, and it may place reasonable limits on the types of work a person can perform within a certain geographical area and during a specific time period. Some situations where litigation may be necessary to address a former employee’s violation of a non-compete agreement include:

• A former employee goes to work for a direct competitor. Non-compete agreements may be used to protect trade secrets, and they may restrict employees from working for other companies within the same industry, since doing so may allow them to use their knowledge of their former employer’s processes to help their new employer gain an unfair advantage in the marketplace. In these situations, the former employer may pursue litigation and seek an injunction requiring the employee to stop working for the competitor.

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In many cases, businesses will be looking to avoid legal disputes, since litigation can be costly and time-consuming, and an unfavorable decision in court can have a significant impact on a company’s bottom line. While many of these cases involve disputes with other companies or outside individuals, there are some situations where employees or former employees may take legal action to address issues related to the wages a company pays or other employment law matters. Understanding how to avoid these disputes or address these concerns can be crucial, and taking the right approach will ensure that a company will be able to hire and retain workers and continue operating successfully in the future.

Wage and Hour Disputes

Some of the most common disputes with employees involve the wages paid by an employer. A business must pay at least the minimum wage to all employees, and it may be penalized if it fails to do so. In Florida, the current minimum wage is $10.00 per hour as of September 30, 2021. The minimum wage will increase by $1.00 each year until it reaches $15.00 per hour on September 30, 2026. For tipped employees, employers may deduct a tip credit of $3.02 from a person’s wages, meaning that the current minimum wage is $6.98 per hour, and in 2026, it will be $11.98 per hour.

Labor laws also require employers to pay workers for all hours worked, as well as overtime pay for any time worked in excess of 40 hours per week. The rate of overtime pay must be at least 1.5 times the person’s regular hourly wages. In some cases, disputes may arise regarding whether certain activities are considered to be compensable work. For example, an employer generally may not require an employee to be present at an office or job site for a certain amount of time prior to actually beginning work unless the employee is paid for this waiting time. Similarly, if an employee continues performing work after the end of their shift in order to finish a task, this is considered working time, and the employee must be compensated for this work.

When business disputes need to be settled in the courtroom, the plaintiff and defendant will both need to be sure they have all the information they need to address the issues raised in their case. After a lawsuit is filed, the case will enter the discovery phase, and the parties will gather relevant information from each other or from other parties. Understanding the procedures that may be followed during discovery will help a person ensure that they are taking the correct approach to achieve success in business litigation.

Methods Used During Discovery

Information that may affect a case may be obtained in multiple ways, including:

• Interrogatories - One party may send written questions to the other party, asking for details about certain issues. These questions may be open-ended, or they may be specific. For example, one side may send the other a request to admit certain facts to ensure that these issues will not be in dispute during a trial.

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There are a variety of issues that can lead to contract disputes, but much of the time, these cases will address claims that one party has committed a breach of contract and failed to meet their obligations under a contractual agreement. During litigation of these disputes, one party may invoke a “force majeure” clause in the contract and claim that they were excused from meeting their obligations due to circumstances beyond their control. By understanding when force majeure clauses may apply and how they can affect the litigation of contract disputes, the parties involved in these cases can make sure they will be able to protect their rights and financial interests.

What Is a Force Majeure Clause?

Most contracts contain terms that define when a party may not be required to fulfill its obligations. The term “force majeure,” which means “greater force,” may be used to refer to clauses in a contract that excuse one or both parties from certain obligations due to issues that are unforeseeable and out of their control. The circumstances that trigger a force majeure clause are often referred to as “acts of God,” and they may include natural disasters such as storms, floods, or earthquakes. Other issues that may be covered by these clauses include wars, riots, labor disputes, or other qualifying events that make it impossible for one party to meet their requirements.

If events occur that fall under a force majeure clause, the parties may have a number of options for handling the situation and reaching an agreement that will minimize the losses for both parties. In some cases, they may decide that the contract will still be carried out, but there will be a delay before one or both parties complete their requirements, such as delivering goods or making payments. In others, the parties may agree to a rescission, or a cancellation of the contract.

There are many situations where a party to a business contract may violate the terms of their legal agreement. When a breach of contract occurs by one party, the other party may experience financial losses or other damages, and they may seek to recover these damages through business litigation. However, there are some situations where an anticipatory breach of contract may occur because one party will be expected to violate the terms of a contract. In these situations, the other party will need to understand their options, including the steps they can take to protect their interests and minimize their financial losses.

Anticipatory Breaches and Repudiation

If one party refuses to honor the terms of a contract, this is known as repudiation. In some cases, one party may inform the other that they will not be meeting their contractual obligations. However, many anticipatory breaches involve suspicions by one party that the other will be unable to fulfill the contract’s terms. For example, if a company has entered into a contract with a manufacturer in which a large number of goods will be delivered by a certain date, and they later learn that the manufacturer has filled a large order of the same goods for another company, they may be concerned that the manufacturer has exceeded their production capabilities and will be unable to manufacture and deliver the goods on time. The company may then need to take action to respond to the expected breach of the contract.

Under the Uniform Commercial Code (UCC), a party that has reasonable grounds to believe that a breach of contract will occur may request adequate assurance that the terms of the contract will be fulfilled. In the example above, the company purchasing goods may contact the manufacturer in writing to ask about the status of their order and when it will be expected to be completed. While waiting for a response, the company may suspend any payments they were required to make under the contract. If a response is not received within 30 days, this will be considered a repudiation of the contract.

There are many ways that a business may grow or expand its operations, such as by hiring new staff, building new facilities, and beginning to serve customers in new markets. However, rather than starting from zero and building a new area of business from the ground up, it can sometimes be preferable to combine with another company that already fills this role. This is often done through mergers or acquisitions. By understanding the differences between these types of transactions, business owners, partners, or shareholders can determine the best approach to take as they look to expand operations or combine with other companies.

Options for Purchasing or Combining With Another Company

While both mergers and acquisitions will involve the combination of two companies into one organization, the procedures followed will often depend on whether one organization will be the “primary” company going forward. In a true merger, both companies will be treated equally, and neither company will purchase the other. Mergers usually take place through mutual consent, and a new company will be formed, which may require a new name and organizational structure.

In an acquisition, on the other hand, one company will purchase another company and incorporate it into its existing structure. Acquisitions may be friendly, meaning that both parties agree that one company will purchase the other, or they may be hostile acquisitions in which  one company assumes control of another by purchasing a majority of its ownership shares. In reality, most mergers are actually acquisitions, and even if the companies will be combining assets and staff, one company will have primary control over the new structure.

There are many types of debts that may cause a person to experience financial problems. When it becomes difficult or impossible to repay debts, bankruptcy may be the best option for avoiding serious consequences, such as a home foreclosure, the repossession of property, or legal judgments that may result in wage garnishment or liens against a person’s home. However, it is important to understand how different debts will be addressed during the bankruptcy process. Domestic support obligations such as child support or alimony are one type of debt that may need to be considered.

Domestic Support Obligations Are Priority Debts

While domestic support obligations are considered to be debts owed by the payor to the recipient, they are treated differently than other types of debts. Financial support paid by a person to provide for the needs of a child or ex-spouse may be necessary to ensure that the recipient can cover their ongoing living expenses. Because of this, a person will generally be required to continue making payments, and they will also be obligated to make up any payments that are past due.

After filing for bankruptcy, an automatic stay is implemented that requires creditors to cease any attempts to collect debts from the debtor. However, this automatic stay does not apply to domestic support obligations. A person must continue making any child support or spousal support payments that are required. 

There are multiple types of business litigation that a company may need to defend against. In some cases, former employees may take legal action against a business because they believe that they were fired or terminated for illegal reasons. In addition to the expenses involved in defending against these claims, a company may face significant penalties if a jury determines that it took illegal actions when terminating an employee. In some cases, a verdict may require a company to repay the employee for wages and benefits they lost due to the termination, as well as other damages, such as compensation for emotional trauma. To avoid these consequences, employers will need to understand their rights, the procedures they will want to follow when terminating employees, and the ways they can demonstrate that they have complied with the law.

Laws Affecting the Termination of Employees in Florida

Like most other states, the laws in Florida follow the principle of “at-will employment.” This means that both employers and employees are free to end a person’s employment at any time and for any reason that does not violate the law. An employer may choose to fire an employee because the person did not meet certain standards in their work, because the company no longer has the budget to cover the employee’s salary, or because of inappropriate behavior by the employee. Similarly, an employee may choose to leave a company because they found a different employer who is a better fit for their needs and goals, because of interpersonal differences with coworkers or managers, or because they have experienced health issues that prevent them from performing work they had done in the past.

While there are many valid reasons for the termination of a person’s employment, there are some cases where firing an employee for certain reasons may be illegal. Employees have protections against discrimination, and an employee may claim that they were wrongfully terminated because of factors such as their religion, sexual orientation, gender identity, race, national origin, or family status (including pregnancy). A company is also prohibited from taking “retaliatory personnel actions,” including discharging, suspending, or demoting an employee, because the employee disclosed a company’s allegedly illegal policies or practices to a government organization or because the employee refused to participate in illegal activity on behalf of the employer.

Businesses will need to take a variety of steps to protect themselves financially. However, the more complex a business is, the greater the chance that it will face issues related to investments, reporting, and other financial issues. Failure to follow the correct accounting or reporting practices may lead to business litigation. In cases where a company encounters disputes with shareholders or investors, owners and partners may need to determine how to defend against litigation and resolve disputes while minimizing their financial losses.

Securities Litigation and Shareholder Disputes

The Securities Act of 1933 is one of the key laws that affects companies in the United States. This law seeks to protect investors by ensuring that companies that offer stock for public sale meet certain requirements. A company must register with the Securities and Exchange Commission (SEC) and publish a prospectus that provides potential investors with financial information that can help them determine the benefits and drawbacks of investing in the company. This prospectus must include information about the types of business the company engages in and its executive management, as well as independently-certified financial statements.

Investors may pursue litigation against a company based on alleged violations of the Securities Act, and in some cases, the SEC itself may pursue legal action. Plaintiffs in securities litigation may claim that a company provided false or misleading information to prospective investors that caused them to experience financial losses. The standards that must be met in these cases are relatively low, and an investor will not need to show that a company acted intentionally when it provided incorrect information. Simply showing that the information provided in a prospectus was false or misleading will usually be sufficient, and an investor may be able to recover damages equal to the difference between the amount initially invested and the value of the shares of stock at the time that they were sold or when a lawsuit was filed.

Whether you are the owner of an existing business or are looking to create a startup company, you will need to make sure your business has enough funds to operate successfully. There are multiple options for financing and capitalization, and they usually fall into one of two categories: debt financing and equity financing. If you do not want to burden your company with debt by taking out loans, equity financing may be the preferred option. There are multiple different types of equity financing that may be available. By understanding the best ways to secure investments, you can make sure you will have the funds you need both now and in the future.

Types of Equity Financing

With equity financing, you will typically receive money from investors in return for an ownership share in your company. The advantage of this type of financing is that you will not have debts that will need to be repaid. However, you will typically be required to share your profits with investors, and in some cases, investors may be involved in the decision-making process for your company.

There are multiple different methods of equity financing, including:

Originally published: July 20, 2020 -- Updated: March 18, 2022

Update: Florida homeowners will want to understand exactly how the homestead exemption may be used in cases involving bankruptcy or foreclosure. The Florida State Constitution states that a property that is considered a homestead will be exempt from “forced sale” based on debts that are unrelated to the property itself. That is, a creditor who is seeking repayment for another loan, such as the balance on a credit card, may not place a lien on a debtor’s home. However, a mortgage lender will have the right to pursue foreclosure if a homeowner defaults on their loan. Unpaid property taxes may result in tax liens, and a mechanic’s lien may be placed on a home if a contractor is not paid for work performed on the property.

Many businesses rely on non-compete agreements to protect their interests. These types of agreements are often included in employment contracts or severance agreements, although they may also be used in partnership agreements or other types of business contracts. The purpose of a non-compete agreement is to make sure a person who has inside information about a company will not use this information to engage in unfair competition, such as by starting their own company or working for a competitor. If a company finds that a person who was subject to a non-compete agreement violated its terms, it may need to determine whether to pursue business litigation. By understanding the remedies that may be ordered by a court to address the violation of a non-compete agreement, a business can seek the proper forms of relief during litigation.

Options for Addressing Non-Compete Agreement Violations

Typically, non-compete agreements will restrict a person from engaging in certain activities, and these restrictions will usually apply within a certain geographic area and for a limited time period. During litigation, if a company can show that a former employee or another party violated the terms of a non-compete agreement, it may ask the court to take certain actions, including:

Injunctive relief - A person may be required to follow the terms of a non-compete agreement and cease any and all actions that violate the agreement’s terms. This may mean that they will be required to stop working for a competitor or move to a different position that is not in direct competition with their former employer. A person who has started their own business may be required to cease certain activities, such as contacting their former employer’s clients or providing services that directly compete with the company where they used to work.

While going to court to resolve legal concerns is often the last resort, there are many cases where businesses may need to pursue litigation to recover financial losses. These include situations where a business’s partners or employees have committed embezzlement. This form of fraud can have a significant impact on a company’s bottom line, and business owners will need to understand their options for holding a person responsible for their wrongful actions.

What Is Embezzlement?

Embezzlement may include any situations where a person who is given the responsibility to hold or manage property owned by someone else wrongfully takes possession of the other person’s money or assets. Embezzlement can take a variety of forms in a business setting, and examples of this type of fraud include:

• Falsifying time sheets - Hourly employees may misreport the number of hours they have worked with the intent of receiving additional pay. This is often done to receive overtime pay when a person has not actually worked additional hours.
• Misreporting expenses - Employees may be compensated for work-related expenses. However, some people may attempt to receive additional compensation by claiming that items purchased for personal use were work-related. Some employees may also engage in “double-dipping” in which they charge purchases to a company credit card or account while also submitting expense reports to receive compensation for these purchases.
• Theft of supplies, equipment, products, or money - Some employees may commit direct theft from a company by taking office supplies or computer equipment, or they may steal products from a store or take money from a cash register or safe. Employees may also steal from an employer by under-ringing items at a cash register or voiding transactions and pocketing the cash paid by a customer, or they may provide improper discounts to allow products to be purchased for less than their actual value.
• Falsified vendor payments - An employee may steal company funds by making payments to a vendor that does not actually exist, or they may accept kickbacks from a vendor after agreeing to make payments for products or services that were not actually received.

These are just a few of the ways that employees may commit embezzlement. Whenever a person misuses a company’s resources for their own personal gain, they could face significant consequences. Embezzlement is a form of fraud, and depending on the amount stolen, a person may face misdemeanor or felony charges. A company may also pursue litigation against a person who committed embezzlement. Under Florida law, a plaintiff may recover up to three times the amount that was stolen through fraud or embezzlement, as well as their attorney’s fees during the case.

There are many situations where businesses may become involved in legal disputes. These disputes may involve claims that a business is owed money by another person or company, that another organization has used trade secrets or proprietary information to engage in unfair competition, that the business or another party has failed to follow the terms of a contract, or that a business has engaged in discrimination or other unfair treatment of employees. While disputes may be resolved through business litigation, the process of filing and answering a lawsuit and conducting a trial in court can be very lengthy and expensive. In some cases, it may be more beneficial for both parties to use other methods to resolve their disputes, including mediation or arbitration.

Mediation Vs. Arbitration

Resolving disputes outside of formal legal proceedings in court can often be a more effective solution. In addition to saving time and money, the solutions reached using alternative dispute resolution may encourage cooperation between the parties, allowing them both to move forward successfully and continue working together in some cases. The specific procedures followed during alternative dispute resolution will depend on how well the parties will be able to work together and the amount of assistance they will need to resolve the outstanding issues.

Mediation may be the preferred option if the parties are willing to cooperate and compromise. In these cases, the parties will work with a neutral mediator who will help them discuss their issues and determine solutions that they will both be satisfied with. The mediator will not make any decisions, but they may offer suggestions and encourage each party to make concessions. The goal will be to create a workable settlement that will meet each party’s needs going forward. The settlement will not be binding unless both parties are in full agreement on how all outstanding issues will be resolved.

There are a variety of situations where a business may use non-disclosure agreements to protect sensitive information. These agreements may be included in multiple types of contracts, and they may prevent the release of trade secrets or other information that could cause a company to experience financial losses. For companies that are looking to create non-disclosure agreements or address violations of restrictive covenants, it is important to understand the legal requirements these agreements will need to meet and the types of restrictions they can put in place.

Terms of Non-Disclosure Agreements

A non-disclosure agreement (also known as an NDA) will include a variety of provisions, and these may include:

• Identification of the parties - As with any contract, an NDA will need to specify the people or companies that will be bound by the agreement. A non-disclosure agreement will usually involve a disclosing party that provides confidential information and a receiving party who will have access to the information being protected. Many non-disclosure agreements are unilateral, meaning that one party will be seeking protections by placing restrictions on the other party. However, other types of agreements may be mutual, and the restrictions may apply to both parties.
• Identification of confidential information - An agreement should fully detail the types of information that will be protected, such as company records, intellectual property, trade secrets and proprietary processes, electronic communications, or details about a business and its operations that have been discussed in meetings.
• Scope of confidentiality - An NDA may detail the restrictions that will apply to confidential information. It may prevent a party from releasing information to others, and it may also place restrictions on how a person can use information for their own benefit.
• Exceptions to confidentiality - Certain types of exclusions will usually apply to ensure that the restrictions placed on a person are not unfair or unreasonable. Generally, confidentiality restrictions will not apply to information that a person knew prior to signing the agreement, information that is publicly available, or information that a person received independently, such as through disclosure by another party that was not subject to a confidentiality agreement.
• Length of the agreement - Confidentiality restrictions can generally only be in place for a limited amount of time that is necessary to protect a party’s legitimate business interests. In Florida, non-disclosure agreements that apply to former employees or contractors can generally last from six months to two years, while NDAs involving former distributors, franchisees, or licensees can generally last from one to three years.

Contact Our Broward County Non-Disclosure Agreement Attorney

If you need to create non-disclosure agreements that will protect your business, or if you are looking to enforce the terms of an NDA or address claims that you have violated an agreement, The Elliot Legal Group, P.A. can provide you with experienced legal help. Contact our Pompano Beach NDA violation lawyer at 754-332-2101 to arrange a consultation.