Publications: Food and Beverage Industry


  • Landlords, Retailers and Restaurateurs Should Evaluate the Safe Harbor and Final Repair Regulations

    August 24, 2016

    The treatment of remodeling and repair costs has long been an area of controversy between the Internal Revenue Service (IRS) and restaurant owners, retailers, and even landlords. A retailer seeking to remodel its premises to refresh its brand or a restaurant owner seeking to refresh its floor and décor faced a significant risk of challenge from the IRS if they did not carefully analyze and account for the costs of such changes. Generally speaking, the taxpayers are seeking to deduct the costs associated with remodeling, repairing or refreshing their premises under Section 162(a) of the Internal Revenue Code while the IRS...



  • New overtime rules announced. Millions of employees impacted. Are you ready?

    May 18, 2016

    Breaking News: Federal Judge Blocks DOL Overtime Rules (November 23, 2016) Original May 2016 article: On Tuesday, May 17, the Department of Labor (DOL) announced new rules on overtime pay, fulfilling President Obama’s 2014 promise to raise the salary level at which employers are required to pay overtime. These changes will have wide impact for virtually all profit and non-profit organizations, and the DOL estimates that almost 4.2 million U.S. workers who are currently exempt will now be eligible for overtime compensation under the new salary level requirements. The rules provide that employers must implement these changes by DECEMBER 1, 2016. It...



  • ACA Forms Due to Employees by March 31; Potential Need to Appeal Marketplace Employer Notices on the Horizon

    March 24, 2016

    March, May and June Employer Affordable Care Act (ACA) Reporting Deadlines The revised deadline for employer ACA reporting is just around the corner. By the end of the month (March 31, 2016), employers required to report health care coverage offers must furnish a statement to employees who worked 130 hours or more in at least one month in the 2015 calendar year. These employees should receive a completed IRS Form 1095-C or 1095-B, as applicable. Thereafter, employers have until May 31, 2016 (or until June 30, 2016, 2016, if filing electronically) to submit copies of these forms to the IRS, together...



  • Battle of the Forms: Practical Tactics to Minimize Risk in Day-to-Day Transactions

    March 7, 2016

    Sales are negotiated and consummated between companies every day. Yet, what often gets overlooked in these negotiations is which company’s terms and conditions govern the transaction. In a typical commercial transaction, a variety of documents may be exchanged between the contracting companies. At minimum, a purchase order and a sales order are usually exchanged. Typically, parties’ affix their terms and conditions to these documents. A standard and simple procedure, right? Not necessarily. In the rush to finalize the deal, companies often fail to adequately take into consideration their contracting partner’s terms and conditions (or ignore them entirely), or the applicability...



  • IRS Proposes Regulations to Reduce Tax Incentives on Food and Beverage Manufacturers

    February 4, 2016

    Every business in the Food and Beverage Industry, large and small, should consider the effectiveness of the manufacturing deduction (also known as Section 199 deduction) as part of its business plan in 2016. The tax incentive represents an incredibly valuable benefit for businesses that perform manufacturing and other production activities. While the computations behind the deduction can be daunting, more businesses are finding the effort worthwhile in tax savings. The tax benefit for this incentive has become so great that the IRS is now trying to curtail the deduction by aggressively imposing their administrative powers, to try to overcome judicial decisions...



  • Cybercrime – Costly Threats to Your Intellectual Property

    December 29, 2015

    For most people, the terms “cybersecurity” and “cybercrime” conjure up visions of futuristic and rather ill-defined or abstract activities. But the trending attacks on businesses — of all sizes — are neither futuristic nor abstract. They are clear and present dangers to your intellectual property. First, definitions – “Cybersecurity” is the state of being protected against the criminal or unauthorized use of electronic data, or the measures taken to achieve this. “Cybercrime” is any crime or criminal activity that is conducted via the Internet or some other computer network. Second, a question – Is the threat real? The simple answer is...



  • January 31, 2016 ACA Employee Notice Deadline Looms; Cadillac Tax Delayed; Other ACA Developments

    December 23, 2015

    January 31, 2016 Deadline to Furnish Forms to Employees By January 31, 2016, many employers must furnish notices to employees in connection with the Affordable Care Act (“ACA”) information reporting requirements. Think of it as a W-2 for employer-provided health coverage. As summarized in our November 23, 2015 Client Alert, either a Form 1095-C or 1095-B must be furnished to employees, depending on the coverage type, the size of employer, and the existence of related employers. The Form will provide information about health care coverage offered (or not offered) to employees and their family members during the 2015 calendar year. February (or...



  • Don’t Overlook the Basics — Minimizing Litigation Risk in Commercial Deals

    November 6, 2015

    Business relationships are driven by a business’s agreements, both with customers and with suppliers. Over the years, I have come to recognize issues that arise again and again that, if addressed at the outset, would have saved businesses from the headaches, stress, and expense of a lawsuit later on. While you can never totally eliminate litigation risks, developing and implementing a good program to minimize those risks will more than pay for itself over time. Here are ten seemingly obvious yet often overlooked fundamentals that will help avoid some of the most frequent issues that arise. The Devil Is in the...



  • Labor & Employment Attorneys Laurie Meyer Discusses Joint Employer Status Assessments in New North B2B Publication

    October 1, 2015

    Laurie Meyer of Davis & Kuelthau’s appellate practice, employment litigation, food and beverage industry, labor and employment and litigations teams authored an article, The NLRB says you could be held responsible for a worker you didn’t intent to employ., for for New North B2B's October 2015 publication. To read the article, please click here....



  • The NLRB says you could be held responsible for a worker you didn’t intend to employ.

    September 10, 2015

    Late last month, the National Labor Relations Board (NLRB) issued the long-awaited Browning-Ferris Industries of California, Inc. opinion in which it changed the standards for assessing a joint-employer status. With this opinion, the NLRB returned to the traditional test and held that joint-employer status may be found if two or more entities are “both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.” While this opinion may not impact all employers, it does impact over 5.7 million private employees across the country, and implicates three major...



  • Corporate Attorney Tom Rohan Discusses Commercial Contract Provisions in New North B2B Publication

    September 1, 2015

    Tom Rohan of Davis & Kuelthau’s corporate, commercial finance, M&A, and real estate teams authored an article, Don’t Let Your Contract Turn Litigation Into a “Road Game”, for New North B2B's September 2015 publication. To read the article, please click here....



  • Labor & Employment Attorney Bruce Deadman Discusses Overtime Regulation Changes in New North B2B Publication

    August 1, 2015

    Bruce Deadman of Davis & Kuelthau’s employee benefits and labor and employment teams authored an article, Department of Labor Unveils Long-Awaited Proposed Overtime Rules for New North B2B's August 2015 publication. To read the article, please click here....



  • Proposed FLSA Regulations Impact Compensation of Salaried Employees

    July 1, 2015

    On June 30, the United States Department of Labor (DOL) released a 295-page Notice of Proposed Rulemaking (NPRM), seeking public comment on proposed rules amending the Fair Labor Standard Act’s (FLSA’s) “white collar” overtime regulations. The proposed changes will nearly double the salary exemption floor for full-time salaried employees and lay the framework for that floor to rise every year. The proposed rules would also increase the total compensation requirement needed to exempt highly compensated employees (HCEs) from overtime to the annualized value of the 90th percentile of weekly earnings of full-time salaried employees (or $122,148 annually). The proposed rules...



  • Shifting Sands: Uncertainty Emerges for Businesses Expecting Insurance Companies to Defend Their Coverage

    June 16, 2015

    In the wake of recent pro-insurance company rulings in Wisconsin courts, businesses and their owners will need to proceed with extra caution when asking their insurance company to defend lawsuits that may arise from their business dealings. While many suits are typically covered under a policy, all too often an insurance company disputes coverage, which leads to the business having to expend time and resources out of pocket to fight with its insurer. Historically, Wisconsin courts have placed strong incentives on insurance companies to proceed with caution in disputing coverage. However, recent decisions have curtailed those incentives. When an insurance company...



  • Is Your Estate Plan Jeopardizing your S-Corporation?

    June 1, 2015

    Many of us are familiar with the basic S-corporation mantra – avoid the so-called double taxation of regular C-corporations, all while maintaining the limited liability and practical advantages of a corporation. While many business owners engage in detailed planning to ensure compliance with Subchapter S of the Internal Revenue Code in order to maximize the tax benefits of being an S-corporation, the same level of diligence is often ignored when it comes to that business owner’s personal estate plan, and ultimately, their business succession plan. For a corporation to maintain its S-corporation eligibility, it must have fewer than 100 total shareholders,...



  • Strategic Use of Limitation of Liability Provisions in Construction Contracts

    May 28, 2015

    One of the most important strategic approaches in modern day construction contract negotiation is leveraging the extent to which the parties will agree to limitations upon certain liabilities. While such limitations fall into a number of different categories, one of the most common is the mutual waiver of consequential damages. Though agreeing to limit the other party’s liability surely comes at some risk, there are benefits that should be carefully weighed before making a go/no-go decision on such a waiver. In particular, the benefit of limiting the total potential of your project cost. On its face, a mutual waiver of...



  • Take the Mystery Out of the Recoverability of Attorneys’ Fees in Construction Disputes

    May 28, 2015

    In American litigation, all parties are responsible for paying their own litigation expenses (including attorneys’ and experts’ fees) regardless of the outcome of a case. This “pay your own way” rule applies with equal force to claims arising on construction projects, subject to narrow exceptions. For example, a party who successfully prevails on a lien claim is entitled under the statutes to recovery of its attorneys’ fees. The same is true in circumstances where an injury is caused by an OSHA violation. By and large, however, the parties know going in that any litigation that ensues will be an expensive...



  • Wisconsin Supreme Court Confirms Importance for Businesses to Timely Report Insurance Claims

    March 23, 2015

    The Wisconsin Supreme Court recently issued a decision that drives home the importance for businesses and individuals, as policyholders, to immediately report claims to their insurance company. Even a small delay may result in a loss of coverage thereby increasing the risk that, if a claim against you is successful, you will be left to pay for the legal fees to defend the claim, along with the damages that you may be ultimately responsible for – even if your insurance policy would have paid those costs in full if you had notified the insurance company promptly. In the recent case of...



  • Corporate Attorney Tom Rohan Discusses Commercial Contracts in New North B2B Publication

    March 1, 2015

    Tom Rohan of Davis & Kuelthau’s corporate, commercial finance, M&A, and real estate teams authored an article, In Commercial Contracts, We Do Not Want to Be Our Brother’s Keeper, for New North B2B’s March 2015 publication. To read the article, please click here....



  • A Craft Without a Brand Is a Recipe for Disaster. Is Your Brand Protected?

    October 8, 2014

    At a recent Food & Beverage CEO Roundtable hosted by the Milwaukee Business Journal, Giacomo Fallucca of Palermo Villa, Inc. succinctly and effectively offered this advice to attendees: “Build your brand.” Say no more. In three words, he nailed it. To your company, its brand is its lifeblood. To everyone else, it is an indicator of source and quality. From either perspective, it needs to be protected. But how is this best accomplished? Below are a few initial best practices to consider for building and protecting your brand, which can include trade names, trademarks and service marks, collectively “marks.” These...



  • Hiring an Independent Contractor? You Might Be Liable.

    July 2, 2014

    The Wisconsin Supreme Court recently clarified in Brandenburg v. Luethi the law in Wisconsin concerning owner liability for damages caused by an independent contractor. The Brandenburg case involved a homeowner who contracted with a company to spray herbicide on trees on his property. In the course of spraying the homeowner’s trees, herbicide drifted onto 79 trees on an adjacent property, causing permanent damage to those trees. The independent contractor was insolvent and the owner of the damaged trees, Brandenburg, sought damages from the homeowner, Luethi. Luethi denied liability, relying upon the general rule in Wisconsin, i.e., that an individual or entity...



  • Take Control: Customize Construction Agreements to Limit the Time and Costs of Potential Arbitration

    June 30, 2014

    Arbitration was once the industry’s preferred mechanism for resolving construction disputes. This has changed significantly in recent years as construction disputes addressed via arbitration have become no less costly, timely, or efficient than traditional litigation. Often a party’s (or its attorney’s) zeal to engage in broad discovery efforts virtually double or triple the transactional costs of arbitration and prolong ultimate resolution by many months or even years. Similarly, post-decision litigation fights over an arbitration award’s enforceability sometimes unduly prolong the achievement of finality, which is one of arbitration’s most valued benefits. Burned by one or more of these experiences, construction...



  • Review of Overtime Exemptions May Bring Further Costs

    April 7, 2014

    While considerable public debate continues over whether the current federal minimum wage should be increased, a separate wage and hour discussion is also taking place that may have a far greater impact. On March 13, 2014, President Obama directed the Department of Labor to come up with a way to update overtime pay rules to reflect the “changing nature of the American workplace” and to make them more” in keeping with the intention of the Fair Labor Standards Act." The review is intended to focus on the current “White Collar” exemptions which exclude positions that are “executive,” “administrative,” “professional,” “outside...



  • New Wisconsin Crowdfunding Law Designed to Help Businesses Raise Capital

    November 11, 2013

    To facilitate investment in Wisconsin businesses, on November 7, 2013 Governor Scott Walker signed the CASE (crowdfunding and securities exemptions) for Jobs Act (2013 Wisconsin Act 52) (the "Act") into law, creating a state securities law exemption enabling Wisconsin businesses to raise up to $2 Million via online crowdfunding campaigns. Similar to the crowdfunding provisions of the federal Jumpstart Our Business Startups (JOBS) Act, Wisconsin joins only two other states – Kansas and Georgia – in enacting state-level securities law exemptions permitting crowdfunding. The Act permits Wisconsin companies to sell equity and debt securities to Wisconsin investors through internet sites registered...



  • Use Trademark Audits to Identify and Protect Your IP Assets

    April 12, 2012

    Trademarks, including your company and brand names, are among the most valuable assets of your business. They can contribute directly to revenue generation through royalty or licensing payments, and by building your brand and market identity as well as the goodwill of your company. An easy and cost-effective way to help ensure that you are protecting these valuable assets is to have experienced trademark counsel perform periodic trademark audits. A trademark audit will, among other things: Help you identify the trademarks your business uses (including those possibly overlooked by management) as well as any federal and state registrations and applications...



  • New Top Level Domains Will Increase Risk of Online Trademark Infringement

    September 12, 2011

    The Internet Corporation for Assigned Names and Numbers (“ICANN”), the organization responsible for overseeing the world's domain name system, recently made hundreds of new generic Top Level Domains (gTLDs) available for registration, a significant expansion of available Internet addresses and an increased risk of online trademark infringement. Companies should follow developments in the gTLD rollout to determine whether any of the proposed gTLDs infringe their trademark rights. Additionally, once the new gTLD registries are operating, they will require additional trademark policing. Currently, the most popular gTLDs are those with the extensions.com,.net, and.org. There are also nineteen other generic extensions available for...



  • Choosing a Strong Trademark

    September 11, 2011

    One of the most common mistakes brand owners make when they have an idea for a name that they want to "trademark" is that the trademark of choice is merely descriptive of the goods or services that the brand owner wants to identify with the trademark. Descriptive marks to help consumers to identify their products and services. However, if an infringement situation arises, the descriptive nature of such trademarks may make them weak trademarks because, absent a showing of acquired distinctiveness, a trademark owner cannot prevent others from using descriptive terms to describe such goods or services. Trademark laws do not...



  • Licensing A Trademark - Even To A Family Member

    May 11, 2011

    In a case that came down earlier this month, the Court of Appeals for the Seventh Circuit reiterated an old saw of trademark law, namely, that trademark owners who fail to control the quality of their licensee’s goods or services stand to lose their trademark. Trademark law requires that decision-making authority over the quality of the goods or services provided remains with the owner of the mark. Why is this important? As happened in Eva’s Bridal Ltd. v. Halanick Enterprises, Inc., to the extent a trademark owner fails to include such provisions in a license agreement or fails to have a...



  • Thinking About Becoming a Franchisee?

    May 11, 2010

    If your place of employment has recently down-sized and you have lost your position, or if you want to make a pre-emptive strike before that happens, you may have toyed with the notion of owning your own franchised business. Most prospective franchisees have the notion that, by owning a franchised business, they will, in fact, be their own boss. While owning a franchise can be rewarding and profitable, the prospective franchisee needs to understand that he or she is accountable to a new boss or supervisor – the franchisor....



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