Specialists from six area law firms offer valuable insight and free guidance for decision makers of busineses large and small.

In the entrepreneurial world, it’s often said that the difference between a successful business venture and a financial catastrophe lies in the advice of a trusted advisor. The problem is that there’s no shortage of people, qualified or not, willing to tell you how to run your business.

Indeed, finding the right resource isn’t easy, especially during troubling economic times, when the inclination is usually to look out for oneself first.

FirstMonday offers assistance. The editors have tapped some of the region’s leading law firms in an effort to deliver, at least for starters, information that can help you run your business just a bit smarter

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MEDIATION

Rumberger, Kirk & Caldwell PA
by James A. Edwards

If your business is involved in litigation, mediation is in your future.

Mediation is done at an informal, confidential settlement conference where the parties and their lawyers are led by an impartial, neutral third party. Successful mediation avoids the uncertainty of a judge or jury’s decision. Private disputes stay out of the public eye. Litigation costs end. Your focus returns to your business, not litigation.

Here are six secrets to successful mediation settlements:

1. Get the right mediator. A skilled mediator focuses the parties on how to settle the case and offers creative solutions to consider.
2. Be prepared. Know what facts have been developed during litigation. Realistically project the most probable outcome of the case.
3. Do more listening, less finger pointing. Offers or demands are more likely to be acceptable if you understand what the other side’s needs or resources are. Accusations make people defend their positions; discussions lead to settlement.
4. Be patient. Mediation is like cooking in a crock pot; tough positions and attitudes formed during years of litigation take time to tenderize and become palatable. Spending an extra hour in mediation is a better investment than spending many days and dollars in trial to achieve a similar or worse outcome.
5. Keep an open mind. You are still litigating because somebody or everybody is not being realistic. To settle the case, both sides must adjust what they will give or take.
6. Immediately put the settlement agreement in writing and have everybody sign it.

James A. Edwards, a partner, is a certified circuit court mediator and board-certified civil trial lawyer in the firm’s Orlando office.

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INTELLECTUAL PROPERTY

Foley & Lardner LLP
by Shine Tu, Stephen Maebius and Anat Hakim

Protection of intellectual property should play a key role in every business venture. Just like locking the doors to the company car to prevent theft, corporations can take these three simple, affordable steps to lock the doors to their valuable IP assets.

1. Use nondisclosure agreements. An NDA is a legal contract that restricts access to confidential material. It is used when one company needs to evaluate and/or understand the IP before entering into a potential business relationship. Although companies should file patents before disclosing an invention, NDAs can allow parties to discuss an unpatented invention while retaining the right to file a patent.
2. Leverage employment agreements. Employment contracts should contain an agreement specifying that the employee (a) will not disclose information relating to the company’s
   products or business activities (trade secrets); (b) will not compete against the company for a certain period of time after leaving its employ; and (c) agrees that all inventions resulting from the employee’s work at the company are assigned to the employer. Many jurisdictions treat employment agreements differently from others; thus, counseling regarding employment agreements is essential.
3. Have a laboratory notebook practice. Although many types of evidence may be used to prove what a company invented and when, ideally such evidence will include countersigned
   notebooks and electronic equivalents. Notebooks are used to corroborate statements made by an inventor and help establish the date of invention. Notebooks should (a) be witnessed by someone who understands the technology (but not a co-inventor) on a weekly basis; (b) provide essential facts; (c) draw a conclusion; (d) have test results copied into them; (e) be written in ink; and (f) be recorded in chronological order.

Although it is necessary under many circumstances to disclose confidential information, these three steps can help deter unlawful behavior and help avoid costly litigation. Shine Tu, an associate, is a member of the firm’s Biotechnology & Pharmaceutical Practice, Life Sciences and Nanotechnology Industry teams. Stephen Maebius, a partner, handles many types of IP work for clients, including IP diligence reviews, opinions, international portfolio management, licensing, litigation, reexaminations, patent term extensions and interferences. Anat Hakim, a partner, specializes in a broad spectrum of patent, trademark and trade secret litigation and counseling.

Shine Tu, an associate, is a member of the firm’s Biotechnology & Pharmaceutical Practice, Life Sciences and Nanotechnology Industry teams. Stephen Maebius, a partner, handles many types of IP work for clients, including IP diligence reviews, opinions, international portfolio management, licensing, litigation, reexaminations, patent term extensions and interferences. Anat Hakim, a partner, specializes in a broad spectrum of patent, trademark and trade secret litigation and counseling.

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LABOR

Lowndes, Drosdick, Doster, Kantor & Reed PA
by Rachel D. Gebaide

Social networking and e-mail have assumed prominent places in the personal and professional lives of the 21stcentury workforce. Most companies have electronic communications policies to address employee use of company e-mail. Employers can fill a new void in their employee handbooks by developing, implementing and enforcing policies to govern employee use of social networking sites and related tools including, but not limited to, Facebook, MySpace, Twitter and LinkedIn.

Social networking is one of several new communications trends that have weakened employer control over employee communications involving the company. For example, indiscriminate
posts on social networking sites may compromise a company’s brand integrity or reveal proprietary business information. Photographs and other content can devolve into evidence of workplace harassment. The line between employees’ blogging for themselves rather than on behalf of their employer can become blurred as readers fail to make the distinction.

Some employers have adopted zero-tolerance policies and disabled employees’ ability to access social networking sites and related tools through the company’s computer system.
Other employers recognize social networking as a valuable marketing tool and, in some cases, an indispensable investigative tool. Employers who seek balance can develop, implement and enforce a social networking policy to govern employee use of social networking tools for work- and nonwork-related purposes.

Companies in states other than Florida need to confirm whether those states have laws that prohibit an employer from taking adverse employment actions against an employee for
engaging in lawful conduct outside of work. They then should make any necessary revisions to their social networking policies before implementing the policy in those states.

Rachel D. Gebaide, a partner, counsels management and human resource professionals on a wide range of issues related to the workplace.

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BUSINESS ESTATE PLANNING

Broad and Cassel
by Scott G. Miller

Succession planning for owners of closely held businesses presents numerous issues related to the death, disability or retirement of the owner, such as these: Who will continue to run your business? How will the business impact your family financially? Will your family want to keep the business?

If you do not have answers or are uncomfortable with the current answers to these questions, it likely is time to seek professional assistance. If you have a plan in place, or are considering putting a plan in place, ask yourself the following questions:

1. When do I want to transfer my business?
2. How will such a transfer be funded?
3. Who has the skills to maintain and continue to grow my business?
4. Are all my children involved in the business? If not, how will the ones outside enjoy the benefits of my life’s work?
5. How will my estate pay estate taxes?
6. If my business is sold or transferred, how will my family support itself?

There are many solutions to these issues, depending on your specific answers to these questions. The following are a few of the commonly used tools that may fit one or more of your or your family’s needs.

If, for example, the business is to be kept in the family after your retirement, disability or death, the proper estate-planning documents must be in place to ensure that the necessary control will be transferred to the family members who will continue to run it. If not all family members are involved in the future of the business, then recapitalizing the business into voting and nonvoting shares will allow everyone to enjoy the future success of the business. Also, the purchase of adequate life insurance can ensure that there is liquidity in the estate to pay estate taxes. This will prevent the heirs from having to sell the business or the estate from becoming indebted to pay
the federal taxes.

Regardless of the way the business is sustained after your death, how would your immediate family, who depend on you for support, survive financially? Surround your family with a team of trusted financial and legal advisors to ensure that they receive the best advice on how to best enjoy and benefit from the financial security you have provided.

Scott G. Miller, a partner located in Orlando, is a member of the firm’s Estate Planning and Trusts Practice group.

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NEW LEGISLATION

Akerman Senterfitt, Attorneys at Law
by Valerie J. Hubbard

Gov. Charlie Crist recently signed into law Senate Bill 360, intended to streamline development approvals and stimulate the economy in the face of the ongoing recession. The legislation removes the state requirement for transportation concurrency in certain areas, allowing local governments to adopt transportation requirements that focus less on automobile travel and roadway expansions and more on mobility strategies such as transit. Controversy remains over what local governments must do to implement the transportation concurrency exceptions and the extent to which they can disregard the new exception provisions and continue business as usual.

In the Orlando area, the exception applies to certain unincorporated areas in Orange and Seminole counties and throughout the municipalities within these counties. The exception also applies to a long list of other municipalities, including Kissimmee, Deltona, DeLand, DeBary, Eustis, Mount Dora and St. Cloud. Businesses within these areas may see changes in transportation requirements and in fee structures for new and expanded business locations. The same areas are also
exempted from the state requirement for development of regional impact review. Some existing DRIs may now attempt to rescind their DRI development orders, with potential effects on property owners within the DRI.

Under specified conditions, the legislation also provides a two-year extension to certain permits and approvals with expiration dates of Sept. 1, 2008, through Jan. 1, 2012. This may allow some projects to retain their approvals through the economic downturn. Conditions include written notification by the permit or approval holder to the authorizing agency by Dec. 31, 2009.

Valerie J. Hubbard, not an attorney, is the firm’s director of planning services. She carries AICP (American Institute of Certified Planners) and LEED AP (Leadership in Energy and Environmental Design Accredited Professional) designations.

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DEBT COLLECTION

Zimmerman, Kiser, & Sutcliffe PA
by Sarah A. Lindquist and J. Timothy Schulte

The first step in any debt-collection plan is to establish a well-written agreement between your business and your customers, who may become your debtors. The importance of a written agreement cannot be stressed enough. Beyond the obvious reason for a written agreement, which is to define each party’s expectations of the business relationship, a written agreement will provide you with other important rights.

Here are a few of those rights:

First, the written agreement can establish the rate at which interest will accrue on unpaid accounts. If you do not have a written agreement providing for interest, you can collect interest only at the “legal rate,” which is currently 8 percent per year. If, on the other hand, you have a written agreement, you can agree to a rate of up to 18 percent per year.

Second, a written agreement can establish your right to collect your attorneys’ fees associated with any collection action. Under Florida law, if you do not have a written agreement expressly providing for an award of attorneys’ fees, you cannot recover them, even if you win the lawsuit.

Finally, a written agreement will establish the law that governs the agreement and the venue for any legal action that is brought pursuant to the agreement. This is especially important when you are doing business with a company that is in a different state or county.

In conclusion, the upfront time and expense invested in documenting your agreement can pay huge dividends, especially in these cash-poor economic times.

Sarah A. Lindquist, an associate, practices in the Commercial Litigation group. Her practice includes creditors’ rights and bankruptcy, construction contract and construction lien disputes, landlord-tenant issues and a variety of real property matters such as partitions and quiet title actions. J. Timothy Schulte leads the Commercial Litigation Practice group, with a practice dedicated to representing business entities in complex litigation matters and other disputes in the areas of commercial litigation, construction litigation, lender representation and eminent domain.