henderson franklin street sign - smaller versionThank you to those readers who attended our C-Suite Seminar Kick-off on September 15, 2016. I posted on September 1 about the topic that my colleague, Mark Nieds, Esq., and I would be presenting. If you did happen to miss us on the 15th, Mark and I explained what to do when a shareholder demands an inspection of the company’s books and records.

To make the discussion more lively, we prepared a mock letter.

While the letter didn’t track the statute, our advice was to respond to the letter promptly, pointing out that the company is ready to comply with a document inspection demand that complies with the statute. This way, the company refuses to comply with a demand outside of the statute, but shows it’s ready to promptly comply with a demand within the statute. This will be useful if the shareholder decides to forego a statutory demand and, instead, files suit under Florida Statute section 607.1604. In that scenario, the company will be well-protected and may have an opportunity to recover its attorneys’ fees and costs for an improper document demand.

The take-away from our presentation? Don’t ignore the demand and get your counsel involved early so that you are ahead of the game on this issue. Click here for a link to the handouts.

Have you ever received a letter from a shareholder in your business demanding an inspection of the books and records of the company? If you never have, count yourself lucky.

Florida Law

That’s because Florida law provides a right for any shareholder to inspect the books and records of a company. Florida Statutes section 607.1602 gives a shareholder the right to inspect various categories of company books and records. The key to evaluating a request is to determine what is being requested. Florida law defines corporate records; not everything for which a shareholder demands an inspection must be provided.

Continue Reading “I demand an inspection of the books and records of the company!”

tax flickr 401k 2012Guest post by Eric Gurgold, Florida Bar Board Certified Wills, Trust & Estate Expert

The IRS has just published proposed new regulations under Section 2704 of the Internal Revenue Code that could significantly impact planning for estates that may be subject to estate tax.  If finalized, the proposed regulations would change how transfers of business interests to family members are valued by eliminating certain discounts, disregarding restrictions in transfer agreements and adding attribution rules for family members.  The proposed regulations will not apply to transfers to non-family members.

A public hearing on these proposed regulations has been scheduled for December 1, 2016.  If adopted, the regulations will become final.  A short window of opportunity exists to complete transfers of business interests to family members under the current rules.

If you would like to discuss the impact of the proposed regulations on your estate planning, contact any of our wills, trusts and estates attorneys at 239-344-1100 or by email to eric.gurgold@henlaw.com.

About the Author:

Gurgold - blogEric Gurgold currently serves as Chair of the Estate Planning and Administration division and is Board Certified in Wills, Trusts & Estates by The Florida Bar. For over twenty-five years, Eric has concentrated his law practice in the areas of estate planning and administration, elder law, probate litigation, title insurance claims related to probate issues, business law and taxation. He assists clients in the preparation of wills, trusts, family limited partnerships, inventories, inheritance and estate tax returns, as well as providing counsel to minimize income and estate taxes.

Tax photo courtesy of 401(K) 2012 under Flickr Creative Commons License

BrexitBy a slim margin, the United Kingdom voted to leave the European Union (EU) last week. Via the European Union Trademark System and the European Patent Convention a trademark or patent owner had the ability to secure protection across all EU member states by a single, unified registration. Of course, EU protection extended only to EU member states. So, with the UK on the way out of the EU, questions arise as to what protection will the owner of an EU right have in the UK once the BREXIT is complete? For companies that do business in Europe, this could have an impact on European Intellectual Property rights. Smart companies should start considering European options now.

Short Term

It will take at least two years for the UK to officially and fully withdraw from the EU. Until that time, all EU treaties and laws will continue to apply. So, for the near term, there does not appear to be any significant impact.

Long Term

Continue Reading BREXIT: What does it mean to your Intellectual Property in Europe?

Last week, the Defense of Trade Secrets Act (“DTSA”) was signed into law. The DTSA creates a federal legal scheme for the protection of trade secrets. Previously, protection of this form of intellectual property was solely a matter of state law, unlike patent, trademark and copyright, which have always been matters of federal law. The DTSA has a number of unique provisions, one of which immediately impacts employers who use confidentiality agreements with their employees. My colleague Suzanne Boy and I offer the following summary of this new law.

Whistleblower Protection

Due to concerns over the impact that confidentiality agreements might have on employees who might otherwise report their employer’s wrongdoing to the government, an amendment was tacked on to the DTSA to provide civil and criminal immunity to whistleblowers under state and federal law for disclosing confidential or trade secret information to the government as part of whistleblowing activity.

Continue Reading Why Employers Need to Review Employment and Confidentiality Agreements in Light of the Newly-Enacted Defense of Trade Secrets Act

trade secrets label on folderIn a rare example of getting something done, the Senate and House of Representatives have passed Defend Trade Secrets Act of 2016 (“DTSA”) and it is now headed to the White House for signature. President Obama has indicated he will likely sign the legislation. With this in mind, it is a good time to review just what proprietary information your business has and how thoroughly it is protected.

Current law

Until now, trade secrets have been protected by state law. While the law is relatively standard there are some slight variations state by state. Indeed, 48 states, Florida included, have adopted the Uniform Trade Secrets Act (“UTSA”) in order to provide businesses with uniformity. At the federal level, while providing protection for other forms of intellectual property like patents, trademarks and copyrights, trade secrets had no specific protection. The DTSA is changing this legal landscape.


Continue Reading Upcoming Changes in Federal Law Means It Is Time to Look At Trade Secrets

7041862895_6192f3c764_zLast spring, we discussed Tesla’s problems securing trademark rights in its name in China. See our post here. The moral of the Tesla story was to seek trademark registration in China as early as possible. Now, Apple has lost a trademark battle in China that underscores the importance of the Tesla lesson and gives an additional twist.

Apple’s Battle

In 2002, Apple registered the IPHONE trademark in China for computer hardware and software and mobile telephones. In 2007, Xintong Tiandi, a leather goods maker, sought and obtained registration of the IPHONE trademark for leather goods, including phone cases. Apple, claiming that its IPHONE mark was famous and well known in China, challenged Xintong Tiandi’s IPHONE registration in the China Trade Mark Review and Adjudication Board, where it lost. Apple then took the fight to the courts in China and lost in the lower court. Apple appealed and The Beijing Municipal High People’s Court has ruled against Apple again, stating that Xintong Tiandi registered the IPHONE mark before Apple, thus giving it superior rights, and Apple’s IPHONE trademark was not sufficiently well known in China at the time Xintong Tiandi registered IPHONE for leather goods. As the first user of the mark, Xintong Tiandi had the greatest rights and Apple’s claims failed.

Continue Reading Learn from Apple’s Woes in China: Register Early and Often

Guest post by Henderson Franklin Attorneys Suzanne Boy and Carlos Kelly

iStock_000015122897XSmallThese are important questions, and like many questions involving the law, the answer is “It depends.” There are pros and cons to both arbitration and a traditional lawsuit in court. Arbitration can be (but is not always) faster. But faster doesn’t necessarily mean cheaper all the way around.

Is faster better?

For example, the filing and arbitrator fees can be significantly higher (at least double) than filing fees for many civil lawsuits. And, if arbitration is quicker than resolving a dispute in the court system, that may not necessarily translate to significantly smaller legal fees. Instead, a similar amount of work (discovery, pre-trial motions, and exchanging exhibits, for example) could take place in a shorter amount of time.

Arbitration can be useful if you have a dispute that you want to keep out of the public eye, though a noisy party on the other side of the case could still bring media or social media attention.

Proceeding through the court system can be (but is not always) slower than resolving a dispute through arbitration.

Can you appeal the decision?

Continue Reading Business Owners: Should You Arbitrate or Should You Litigate in Court?

220px-Flag_of_Cuba.svgPresident Obama’s historic visit to Cuba is yet another step on the “new course” for US/Cuba relations. Since late 2014 the US and Cuba have been working toward normalizing relations. In January 2015, a number of changes to US sanction and trade policies toward Cuba were implemented which are beginning to open up new business opportunities for US companies in Cuba. While change may be incremental and slow, companies that prepare now for business in Cuba will be ready. One area that US companies should begin to consider regarding conducting business in Cuba is protection of their intellectual property in that country.

Cuban Trademark System

Continue Reading Preparing for Business in Cuba

NCAA flickr bp6316The NCAA Basketball Tournament is here which also means local pride is high and many businesses use the Tournament as a marketing opportunity. Many promotions will refer to terms like MARCH MADNESS or FINAL FOUR for impact. The NCAA, however, is always vigilant and aggressively protects against unauthorized uses of its trademarks, especially during the Tournament. The NCAA has a number of registered trademarks relating to the Tournament including MARCH MADNESS, FINAL FOUR, ELITE EIGHT, and THE BIG DANCE. Use of these trademarks in ways that connote come sort of connection or affiliation with the NCAA or the Tournament will likely draw an objection from the NCAA.

Dos and Don’ts

Continue Reading March Trademark Madness—Don’t Foul Out