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Monthly Archives: February 2016

The Delaware Rapid Arbitration Act: Possible Panacea or Potential Pitfall?

Posted on Feb 26, 2016 in Complex Commercial Litigation

Arbitration is often believed to be a great alternative to litigating a dispute in state or federal court.  Faster, cheaper, and more definitive.  No lengthy court dockets.  No expensive, never-ending discovery.  And no lengthy appeals.  Right?  Well, not always. Although arbitration has been lauded as solving many of the problems associated with litigating in the courts, in practice arbitration often has its own set of potential pitfalls which may include:  litigating over whether the parties’ arbitration agreement applies and the scope of arbitration, disputes over the selection of the arbitrators, extensive discovery  similar to that faced in litigation, delays in […]

Internal Revenue Code Section 1031 Tax Deferred Exchange (Part I)

Posted on Feb 19, 2016 in Real Estate

An opportunity to defer taxes and build wealth arises when and individual or entity sells an investment property for more than he or it purchased it for. Generally, tax on the seller’s capital gain is due upon the sale of property. However, Internal Revenue Code Section 1031 provides an exception to this rule and allows a seller of investment property (referred to here as the “Relinquished Property”) to re-invest his proceeds into another investment property (referred to here as the “Replacement Property”) as part of a qualifying “like-kind” Exchange. Often misunderstood by taxpayers, capital gain deferred in an Exchange is […]

Contract Damages in Florida – Avoiding the “Overhead” Trap

Posted on Feb 19, 2016 in Complex Commercial Litigation

A party suing for lost revenue under a contract in Florida must deduct a portion of its general “overhead” expenses when calculating its damages. A plaintiff who is unaware of key aspects of this requirement could easily overestimate its potential recovery in breach of contract lawsuit—or, worse, unwittingly stumble into an evidentiary “trap” that might severely limit their recovery at trial. A plaintiff typically seeks to recover damages based upon the net benefit it expected to receive under the contract. If the plaintiff has not performed some or all of its obligations under the contract, the damages will generally be […]

FLSA Settlements and Obtaining Binding Releases

Posted on Feb 19, 2016 in Complex Commercial Litigation

Originally enacted in 1938, the Fair Labor Standards Act (FLSA) was written to “protect all covered workers from substandard wages and oppressive working hours, ‘labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency and general well-being of workers.”1 Employers facing FLSA litigation will sometimes turn quickly to settlement negotiations with former employees to minimize the costs of litigation.  However, the private settlement of FLSA disputes requires careful consideration. The purpose of settlement is to reach an agreement that resolves a pending legal dispute once and for all. Outside the FLSA setting, […]

Do Minority Shareholders Ever Owe A Fiduciary Duty of Loyalty and Care to the Corporation and/or Other Shareholders?

Posted on Feb 19, 2016 in Complex Commercial Litigation

It may seem surprising to many that Florida law has not clearly prescribed by statute or otherwise what duties, if any, minority shareholders may owe to the corporation and/or to other shareholders.  While minority shareholders in publicly traded or held corporations usually do not owe the same fiduciary duties of loyalty and care owed by officers and directors to the company and to its shareholders, what duties are owed to whom becomes much less clear in the context of closely held corporations. A closely held corporation usually has no publicly traded market for its stock and often is owned by […]

Selling your Business through a Charitable Remainder Trust – a Win-Win for Taxpayers and Charities – Part 1

Posted on Feb 19, 2016 in Estate Planning

You worked hard and built a successful, valuable business. You wonder, “Is it is time to sell?” Now could be the time to travel and enjoy the fruits of your labor and check items off your bucket list.  But if you decide to sell, now is also the time to pay a large capital gains tax to the IRS on the gain from the sale of your business. What if you had a choice?  What if you could take a portion of the proceeds and give it to charity instead of to the IRS?  What if you could make that […]

NLRB’S Continued Invalidation of Class Action Waivers

Posted on Feb 10, 2016 in Complex Commercial Litigation

After about a year of silence on the topic, the National Labor Relations Board (NLRB) has issued yet another decision invalidating a class and collective action arbitration waiver, doubling down on its earlier decisions in In re D.R. Horton, Inc. and Michael Cuda1 and Murphy Oil, U.S.A, Inc. and Sheila M. Hobson.2 In doing so, the NLRB is again seemingly unfazed by the federal courts’ near absolute refusal thus far to follow the NLRB’s decisions invalidating class and collective action waivers in employment arbitration agreements.3 In The Neiman Marcus Group, Inc. and Sheila Monjazeb, Neiman Marcus became the latest company to draw […]