Tip of the Day: Use Keywords in Your Email Subject Lines

When you send an email, the first thing your recipient sees is the subject line, so make sure it’s as clear as possible: What is your email’s purpose? What do you want your recipient to do? Take a page from military personnel. Their subject lines use keywords in all caps to note the email’s purpose. For example:

  • INFO – For informational purposes only
  • REQUEST – Seeks permission or approval by the recipient
  • ACTION – The recipient must take some action

These demarcations might seem obvious or needlessly exclamatory, but they make your emails stand out in the recipient’s inbox. So if you need to send your direct reports a status update, try using the subject line: INFO – Status Update. If you need your manager to approve your vacation request, you could write REQUEST – Vacation. Using these key words also forces you to think about what you really want from someone before you contribute to their email clutter.

Safe and Relaxing Weekend

The Beregovich Law Firm wishes you a safe and relaxing weekend. For emergencies, please call our after hours line at (407) 809-4800 and leave a message. #tellusyourstory #beregovichlaw

Lawyers Advising on Marijuana Laws May Violate Ethics Rules

Have medical or recreational marijuana laws been enacted in your state? While medical and recreational marijuana laws are being passed in various states, it is still illegal to manufacture, distribute or dispense a controlled substance under federal law. Many states are issuing ethics opinions which effectively bar attorneys from advising on state marijuana laws while marijuana is still illegal under federal law. Read more here

A Gift for Lawyers 2016

Is there a special lawyer on your list this season? Check out the American Bar Association’s recommendations on 2016’s Gifts for Lawyers. Click here.

First Self Driving Uber in San Francisco Runs Red Light

California demands that Uber obtain permits for its fleet of Volvo self-driving vehicles. On its first day in operation, the autonomous vehicle blew through a red light in San Francisco. Fortunately, no one was injured. Uber claims that self-driving vehicles will make driving safer. Ironically, video of the incident was captured by the dash cam of a nearby traditional taxi. Read more here.

Supreme Court Rejects NFL and Allows $1B NFL Concussion Settlement

Thanks to The Supreme Court, thousands of former pro football players who have been diagnosed with brain injuries linked to repeated concussions will receive a share of the estimated $1 billion settlement with the NFL. The payments could begin in 90 to 120 days. Read more here.

Choose to Be Grateful. It Will Make You Happier.

Building the best life does not require fealty to feelings in the name of authenticity, but rather rebelling against negative impulses and acting right even when we don’t feel like it. In a nutshell, acting grateful can actually make you grateful. This is a great article by Arthur C. Brooks in the New York Times. To read more click here.
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Can There Be Personal Liability With Limited Liability Companies?

People usually open Florida Limited Liability Companies not only to obtain beneficial tax treatment but also to ensure the members can avoid personal responsibility of corporate obligations. Florida law generally provides for limited liability for owners and managers by stating that members and managers of a limited liability company “ [are] not personally liable, directly or indirectly, by way of contribution or otherwise, for a debt, obligation, or other liability of the company solely by reason of being or acting as a member or manager.” Florida Statute §605.0304(1). The separation of a legally organized entity from its owner and the prohibition of piercing the corporate veil, absent proof that the entity was organized or used to mislead creditors or to work a fraud on them, has been Florida’s common law for decades. The Florida revised Limited Liability Company Act (the LLC Act) even protects the owner when corporate formalities are not observed.

There are however some exceptions to the rule that members and managers cannot be held personally liable for company obligations. Florida Statute provides that this liability is imposed without the need to pierce the corporate veil of the LLC, and includes the following exceptions:

  1. a members written obligation to make future contributions;
  2. execution of an agreement for a to-be-formed LLC prior to its organization;
  3. the two-year clawback for distributions approved and made which are in violation of FS§605.0405, which liability can be imposed on the transferee as well as the members of a member-managed LLC;
  4. Responsible person liability for taxes owed to the United States;
  5. similar responsible party liability for Florida sales or use taxes; and
  6. tortious conduct individually committed by a member or manger.

Furthermore, there are also other developing court-created exceptions, such as when there are multiple levels of LLC’s formed for the express purpose of either avoiding liability or “hiding” who the actual owners of an entity are. The matter of In re USA Cafes, L.P Litigation, 600 A.2d 43 (Del. Ch. 1991), started the expansion of fiduciary duties when limited partnerships are managed by a corporate general partner. At issue was whether the individual directors of the corporate general partner owed the fiduciary duties of loyalty and due care to the limited partnership and the limited partners when, as a matter of corporate law, their duty of loyalty ran to their own corporate general partner and its shareholders. The court relying on trust law held that the directors had the “duty not to use control over the partnership’s property to advantage the corporate director at the expense of the partnership” USA Cafes has been relied upon extensively to extend the fiduciary duty of loyalty down the corporate trail to persons in control. The Delaware courts have consistently relied on USA Cafes to expand the duty of care to the control individuals.

The extension of fiduciary duties down the corporate line together with recent changes to the LLC Act imposes a requirement for attorneys drafting operating agreements to specifically address the fiduciary duties owed by a managing member or manager of an LLC.  For example, the operating agreement executed by all of the members could include specific actions that do not breach the duty of loyalty, such as a real estate rental entity allowing one of its managers to use a unit rent-free to manage the LLC and store the records of the LLC. Alternatively, the attorney could recommend that the client consider organizing the LLC in Delaware. The Delaware Limited Liability Act allows members pursuant to the operating agreement to eliminate all fiduciary duties that may otherwise be owed.

If the goal of the corporate owner is to limit exposure to a potential claim for breach of fiduciary duties then formation of a Delaware LLC with an operating agreement that includes exculpatory language may be the way to go. However, if the Delaware LLC operates in Florida, an issue may arise regarding whether and how a Florida court would apply the Florida LLC Act in determining the enforceability of contractual exculpatory clauses.

The formation and operation of an LLC entity does not insulate its members and managers from all potential liability exposures. In addition. Layering entities with a structured LLC also does not necessarily insulate the ultimate control persons from potential liability exposure. The operating agreement should be drafted to thoughtfully consider restrictions of fiduciaries’ duties, identifying conduct that the members agree does not constitute a breach of fiduciary duty by the managers or managing members, and exculpatory language that a Florida court would accept as not violating the “manifestly unreasonable” standard.

U.S. Foreign Investor Program Funding Luxury Projects, Provisions Set to Expire December 9

The federal EB-5 immigration program meant to encourage investment in the United States from wealthy foreigners is increasingly supporting large luxury real estate projects, not the development in the rural and downtrodden districts that some say were the original targets of the program. Portions of the EB-5 program are set to expire December 9. Read more here.

USCIS Announces Increase in Fees for Immigration Applications Effective December 23, 2016

On October 24, 2016, U.S. Citizenship and Immigration Services announces a final rule published in the Federal Register adjusting the fees required for most immigration applications and petitions. The new fees will be effective December 23, 2016. This is the first fee increase made by USCIS since November 2010.

USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits. The law requires USCIS to conduct fee reviews every two years to determine the funding levels necessary to administer the nation’s immigration laws, process benefit requests and provide the infrastructure needed to support those activities.

Fees will increase for the first time in six years, by a weighted average of 21 percent for most applications and petitions.   This increase is necessary to recover the full cost of services provided by USCIS. These include the costs associated with fraud detection and national security, customer service and case processing, and providing services without charge to refugee and asylum applicants and to other customers eligible for fee waivers or exemptions.

Applications and petitions postmarked or filed on or after Dec. 23 must include the new fees or USCIS will not be able to accept them.