STEWART A. MERKIN, ESQ.
Specializing in Business & Transactional Law & Real Estate
Serving clients' needs in South Florida since 1974
BUSINESS & CORPORATE
PURCHASE & SALE OF BUSINESSES & REAL ESTATE BY NON-US RESIDENTS
MERGERS & BUSINESS ACQUISITIONS
ESTABLISHMENT OF PUBLIC BENEFIT & NONPROFIT CORPORATIONS
Stewart A. Merkin
Background & Experience
Stewart A. Merkin is an AV peer review rated lawyer by Martindale-Hubbell who has been practicing law in Miami, Florida since 1974 with both a large national firm, and since 1978, his own firm. His core legal practice areas include corporate and business law, real estate, representing startups, mergers and acquisitions, international transactions and nonprofit corporations. He also represents non-US residents who purchase and sell businesses and real estate in Florida.
Mr. Merkin has an extensive background in all types of domestic and international business transactions. He specializes in guiding businesses through the legal complexities of development and works with foreign companies in developing operations in the United States. Mr. Merkin's joint legal and investment banking experience enables him to provide the broad legal representation required to help companies navigate all stages of their development.
Before beginning private legal practice, he was a member of the Corporate Finance Department of Hayden Stone, Inc., a New York investment banking firm. From 1979 to 1992, Mr. Merkin served on the Board of Directors of Safrabank, a commercial bank located in Miami, Florida. He served as a Lieutenant in the United States Army from 1965 to 1967, serving one year in the Republic of South Vietnam.
Through two affiliated companies, Gilkin Properties, Inc., a Florida registered real estate broker and MASCO Management, Inc., Mr. Merkin and his staff provide property management, brokerage and corporate management services.
Mr. Merkin received a Bachelor of Science in Economics degree from the University of Pennsylvania's Wharton School of Finance and Commerce, and J.D. and M.B.A. degrees from Cornell University. He was admitted to the Florida Bar in 1972.
Giving Back to the Community
Mr. Merkin's philosophy has always been to give back to his community.
Mr. Merkin is and has been a member of various nonprofit civic and religious organizations. He has served as Chairman of the City of Miami Community Development Advisory Board, as a member of the Board of Directors of Miami Capital Development, Inc., as a Vice President and member of the Board of Directors of the South Florida Council of the Boy Scouts of America, as a member of the Board of Directors of the Academy of Finance of the Miami-Dade County Public Schools, as an adviser to the Institute for Youth Entrepreneurship of Miami-Dade College, as a member of the Entrepreneurial Studies Work Group of Miami-Dade College and as President and a member of the Board of Directors of the Greater Miami Hebrew Academy. He currently is a member of Board of Directors and past President of the American Jewish Committee and is a member of the Board of Directors of Locust Projects, a nonprofit art space in Miami. He currently devotes much of his time working with youth as a member and as a past Chairperson of the South Florida Advisory Board of the Network for Teaching Entrepreneurship.
In 2017, Mr. Merkin was awarded the Not for Profit Pro Bono Award by Dade Legal Aid of the Dade County Bar Association.
Elia Quintana-Hussey is a paralegal who has been with our Firm for over 40 years. She is knowledgeable in corporate, probate and real estate law, particularly as it applies to the sale of real property by non-US residents. Through MASCO Management LLC, she handles the filing of the required documents for our clients’ companies and through Gilkin Properties, Inc., she is responsible for the management of properties owned by our clients, including all accounting matters, tenant relations and the coordination of all payments for taxes and assessments.
Ms. Quintana-Hussey is a registered real estate associate with Gilkin Properties, Inc.
A WORD ABOUT BENEFIT CORPORATIONS
In business school, a mantra that we learned early in our first year was that for-profit companies had two main goals: the maximization of profit and shareholder value, regardless of the long-term cost to society. Pursuing social or environmental goals at the expense of profit, we learned, could expose corporate directors to the risk of lawsuits from shareholders interested in profits above all else.
Because of an increase in social awareness due to many factors, many states, including Florida since 2014, have allowed for the creation of social purpose and benefit corporations to pursue substantial public interest goals. What had been the exclusive realm of not-for-profit corporations is now open to for-profit corporations that want to devote some part of their business resources to substantial nonprofit or socially beneficial activities. Toward that end, in August, 2019, the Business Roundtable, an influential trade group that represents 200 of America's largest companies, changed its statement on "the purpose of a corporation" to reflect that corporations should not just meet the needs of shareholders but also those of its stakeholders, such as employees, consumers, and society.
While most states have adopted only the benefit corporation model, Florida created both social purpose corporations and benefit corporations, the primary difference between the two being the public benefit purpose imposed on each entity. A social purpose corporation must pursue a specific public benefit and a benefit corporation must generally pursue or create a public benefit which can be broad and encompass social or environmental matters that are impacted by the business and operation of the corporation in addition to the traditional motive of maximizing profits. Both are subject to the same legal requirements as any other for-profit entity, the primary differences being that they provide a “safe harbor” for board members who take interests other than profit into account when making decisions on behalf of the corporation. In either case, the directors can be held accountable for abandoning their commitment to their public benefit purpose.
Large, publicly traded companies and small companies alike are choosing to be "green" or PBC (public benefit corporation) corporations, as they are sometimes called, for reasons from the ability to attract a certain kind of investor or customer, retain talent to general PR reasons. Many entrepreneurs are choosing these benefit corporate structures in order to better lead a mission-driven corporate life and to ensure that the mission will be permanent.
While the rewards can be satisfying, the ability to pursue social purpose goals more freely as a benefit company, though, comes with additional responsibilities, including transparency and accountability. Under the Florida statutes, among other things, benefit and social purpose corporations must: (1) incorporate for the purpose of engaging in public benefit activities; (2) consider the effect of any corporate decision upon the public benefit goals of the company; and (3) file an annual shareholders report accounting for the activities of the company that further its public benefit goals.
The decision-making process can be soul searching and complicated. It may be much easier to deal with just the maximization of profits. With the benefit corporation, the directors may have questions such as: how much will the closure of an old plant hurt its workers and their community?; how do you weigh these losses against the gains to the would-be workers at the new plant?; should you consider the racial makeup of the two groups of workers in an effort to reduce economic inequality?; Does it matter whether the new plant is in South Carolina providing jobs for American workers or in Mexico providing jobs for Mexican workers?
In order for potential investors, employees and others to evaluate whether a benefit corporation meets certain objective standards, a certification process for benefit corporations has been established through B Lab, a nonprofit organization that evaluates a company’s corporate documents, books and records, practices and mission to determine if the company meets its standards for a Certified Benefit Corporation™. If the company qualifies, after paying B Lab an annual fee, that company can hold itself out as a Certified Benefit Corporation™, demonstrating to the public that it has been through third party scrutiny and met certain third party standards in its corporate performance and behavior.
Electing to be a benefit corporation is not a simple, legal decision, is not for every company and is not determined by whether or not the product of the company could be characterized as being “green” (note Ben & Jerry's, the poster child of benefit companies that produces a deeply, unhealthy product). An entrepreneur, in determining whether to establish a benefit corporation, must look to the future in order to evaluate the costs, risks, obligations, rewards and what such a designation will bring to the founders of the company. And surprise. It may even lead to greater profits and shareholder value.
OUR ATTORNEYS AND PERSONNEL
Stewart A. Merkin Elia Quintana-Hussey
Tel: (305) 989-3477 Tel: (305) 458-9283