When You Go to Court, all that Matters is “THE LAW” (and Reality)

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Clients often ask attorneys, “what are my chances of winning?”  It sounds like a reasonable question.  But what clients do not seem to understand is that there is “the law” and there is “reality.”  All a good lawyer can tell you is: here is what I think is good about your case and here is what I see as the weaknesses, and here is the law “as I see it”.   Huh?

I was preparing for a hearing in Broward Circuit Court, on an Order to Show Cause why the other party’s entire case against my client and several others should not be dismissed.  I had case law precedent from both the Supreme Court of Florida and the District Court that binds the Judge hearing the case to support my client’s position.  I provided a copy of these cases to opposing counsel as we waited for our turn.

Before our case was heard, opposing counsel came over to me and advised that he agreed to dismiss my client as defendant from the case (leaving other defendants still in the case).  I thought this was great news, because the client would be very happy.

I still had to wait my turn for the hearing, because I wanted to make sure that the Judge’s order clearly reflected that my client was now out of the case.

I waited and waited and then I heard the calendar begin on the next round of hearings.  I asked the Clerk what happened since my case from the earlier round had still not been called.  The Clerk advised that I should notify the Judge that my case was not yet called.  the Judge asked me for the name of the case and I told him.  The Judge then blurted out “I find that cause was shown why the case should not be dismissed.”  As I said, luckily, opposing counsel and I had already agreed that my client was being dismissed from the case.  Opposing counsel so notified the Judge and he was ok with the dismissal of my client.

But what would have happened if we did not work it out?  What would have happened if I did not give opposing counsel a copy of the cases that supported our position?  Instead of going into the hearing with “the law on my side”, I would be going into this hearing with a Judge who had already made up his mind.  Perhaps I could have changed the Judge’s mind.  But I cannot count on that.

Instead, my client would be stuck in this case for who knows how long.  Could we appeal the Judge’s finding of cause to not dismiss the case, maybe.  Courts of appeal do not let you appeal every ruling as soon as it is made.  We could try, but it is likely it would not be heard until the case is over.

Maybe we would win the case in the end.  But maybe not.  And, if we did not win, could we appeal and argue that that the plaintiff’s case should have been dismissed at the Order to Show stage.  Probably.  Would we get the entire proceeding thrown out for failing to follow the correct procedure, maybe.

So many “maybes”.  Hmmm.  Sounds like there is “the law” and there is “reality”. 

Eric N. Assouline, Esq., Litigation Partner, Assouline & Berlowe, P.A.

 

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Attorneys: Thanks-for-Giving Back to the Community

Legal Aid Picture of Litigation Attorney Eric N. Assouline

Happy Birthday Eric N. Assouline, and thank you for your Pro Bono work at the Legal Aid Service of Broward County!

At a time when the front page article of the Daily Business Review is reporting on an $18M legal fee being imposed upon a public company for unnecessarily fighting about every legal issue in a drawn out commercial dispute, and lead counsel’s normal hourly rate of $1,200 an hour being cut down to $675 an hour by a Federal Magistrate to be more in line with prevailing community rates, it is very humbling to discuss “real life” legal problems ordinary people deal with every day.   

I spent part of my 49th Birthday at the Legal Aid Service of Broward County’s offices in Fort Lauderdale speaking to individuals who called Legal Aid for assistance with their legal problems.

I learned long ago, from my former boss Hank Adorno, who taught all the associates at Adorno & Zeder, that it was the culture of the firm to give back to the community.  Going back to the Adorno days, we were paid by the firm to help those that were less fortunate, including reading to elementary school children and participating in Hands On Miami. 

Keeping up with that tradition, Litigation Partner Eric Assouline is seen here speaking to a group of young men and women about how hard work pays off.  Attorney Assouline also received a FLITE Program framed certificate as a thank you for his time.

FLITE Photo

Giving back time to the community has been part of the culture at Assouline & Berlowe.  As mentioned on the Community Service page of the Firm’s website:  The Firm has been involved in giving back to the community, in the form of time, money, and energy in order to support those who are less fortunate as well as in support of other important causes.

Examples of how the firm has been involved in philanthropic commitments are many. As early as in 2004, when the Firm was just a year old, the Firm sponsored a mayoral debate for Miami-Dade County.

In 2005, the Firm sponsored the Beauty and the Best Fund Raising Program for the Cystic Fibrosis Foundation.

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In 2006, the Firm sponsored Juvenile Diabetes Research Foundation (JDRF) Walk-a-Thon in Sunrise, Florida.  In 2014, the firm again returned to support JDRF when the Firm sponsored a charity golf tournament in support of JDRF.

In 2008, during the economic crises, as the headlines were filled with news about Americans losing their jobs, the Firm did not feel it appropriate to have a year end holiday “party” for its staff.  Instead of celebrating another successful year, the Firm made a donation to the Joe DiMaggio Children’s Hospital for the support, care and treatment of children at Joe DiMaggio Children’s Hospital at Memorial Regional Hospital in Hollywood, Florida.

The donation is commemorated by an inscribed brick to be placed next to the statute of Yankee Clipper, Joe DiMaggio at the hospital.

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Joe DiMaggio Paver

Brick Paver at the Joe DiMaggio Children’s Hospital, in Hollywood, Florida

 

In Miami, the Firm donated to the Miami Children’s Hospital, and was recognized with another inscribed brick at the Fountain.

The Firm has also been involved in several directorships for non-profit organizations. For example, Eric Assouline serves as a director for both the B’Nai Brith Justice Unit and Jewish National Fund. Ellen Leibovitch is a director with the South Palm Beach County Bar Association. Mr. Assouline and Ms. Leibovitch have also been involved in supporting the Florida Bar as members of the Florida Bar Grievance Committees in Broward and Palm Beach counties.

On this Thanksgiving Holiday, on behalf of my firm and all those attorneys that Give Back to the community, I want to say Thank you.

Happy Holidays.

Eric N. Assouline, Esq.

Managing Partner, Assouline & Berlowe, P.A.

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University of Miami Law Alumni – 1997 Class 20th Anniversary Reunion

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Assouline & Berlowe, P.A., The BUSINESS LAW Firm, proudly sponsored the University of Miami Law Alumni Association’s 20th Reunion for the 1997 Graduating Class.  Eric N. Assouline, Esq., a member of this graduating class from the “U” was in attendance with many others, at the law school.  For Eric, it was a great time to see many of his classmates not seen in many years, as well as to meet some new classmates he had not known while in school together.

The event took place at the Coral Gables campus of the U just days before the University of Miami won another giant victory in its undefeated season, on the road to its first run to a national championship since 2001.

Eric is one of many of the attorneys at Assouline & Berlowe who graduated from the U.  Besides Eric, named partner and Head of Real Estate Litigation Peter Berlowe, Intellectual Property Partner and Patent Attorney Loren Pearson, and International Arbitration Partner Daniel Vielleville all also graduated from the University of Miami.

Eric Assouline sits on the Board of Directors of the University of Miami Law Alumni, and he often assists the University of Miami with students’ Moot Court and Mock Trial competitions.

 

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Protecting Employers from Sexual Harassment Claims

sexual harassment

 

As all of you know, today’s headlines have been dominated by stories of sexual harassment.  Last year, Bill Cosby and Donald Trump got most of the press, as did the decades-old charges against Bill Clinton.  This year, we have heard about complaints made against Harvey Weinstein, Bill O’Reilly, Roger Ailes, Kevin Spacey, Louis C.K., Roy Moore and others.  The list grows day by day.

Not all of these claims took place in a workplace setting, but many of them did.  Some of you may remember back in 1991 when sexual harassment in the workplace first became mainstream news.  I can still recall when Anita Hill accused Clarence Thomas, her former boss (and nominee to the United States Supreme Court), of sexually harassing her while the two worked together:  asking her out on dates even after she repeatedly refused, discussing sex in the work place, commenting on his own sexual prowess, etc.  After the hearings on Justice Thomas’ confirmation, lawyers like me first began seeing a slew of sexual harassment lawsuits brought against our employer clients.  In fact, I eventually became an employment lawyer exclusively because I had to learn how to defend these lawsuits, which had never before been handled by any of the lawyers in the large, litigation-driven firm where I was then working.

Over the years, employers – especially those who were sued and paid big-time attorneys’ fees and settlements – got smarter.  They developed anti-harassment policies, they trained their managers and employees, they hired sophisticated human resources managers to nip these claims in the bud and some even procured employer practices liability insurance (EPLI) coverage.  These actions, as well as the Supreme Court’s holding in Faragher v. City of Boca Raton case (which limited an employer’s liability for a supervisor who engages in sexual harassment at work), have made lawsuits for sexual harassment a rarity these days.

Although these lawsuits no longer dominate my case load, the tide could easily change with the new wave of sexual harassment claims in today’s headlines.  It will not be long before the person behind the “Me Too” post on Facebook brings a sexual harassment claim against her employer (note that individual harassers are not personally liable under applicable employment laws such as the Florida and federal civil rights acts; the employer bears sole responsibility).  Accordingly, my advice to smart employers is to be proactive today, and I have two key recommendations for how to do so:

First, all employers need to review their existing sexual harassment policies (or, heaven forbid, hire an employment attorney to draft one if you do not have a policy).  Make sure the policy clearly defines and prohibits any form of sexual harassment in the work place and describes a procedure for making complaints of harassment, including designating alternate persons to whom such complaints can be reported.  Although it should go without saying, the policy must be followed by the employer and must not be pure window dressing: complaints should be taken seriously, investigated and resolved and, if the complaint has merit, the offending employee should be disciplined.

Second, all employers should train managers AND employees on the policy.  Many employers have new hires simultaneously sign off on receipt of their handbook and sexual harassment policy without specifically training employees about recognizing, addressing and reporting sexual harassment in the work place.  And other employers wrongly assume that managers should know what to do if they see or are presented with a harassment complaint.  Employment attorneys and human resources consultants offer such training services, as do employee leasing companies; some EPLI providers may offer these services as well.  An investment in training goes a long way in establishing an harassment-free work place, and the costs of training are far less than those that may be incurred defending a lawsuit.

The old saying goes, “An ounce of prevention is worth a pound of cure.” If your business is ever forced to defend a sexual harassment claim, you will be in a better position to defend such claim by following the guidance above.  If I can assist you in any way, please call or email.

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

Intellectual Property, Labor & Employment Law, International Dispute Resolution, Bankruptcy, Commercial Litigation, Real Estate, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

 

 

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Expand Your Brand

 

TM So you want to apply for a federal trademark to protect your brand. How does it work?  Does it cover all use of the brand?  These are a sampling of the questions I receive from entrepreneur’s and business owners looking to protect their brands.  Securing a federal trademark is a complicated but worthwhile process.  The Intellectual Property attorneys at Assouline & Berlowe take the time to explain the process to the brand owner so they understand what to expect and how to maximize their protection.

When applying for a federal trademark, you must pick the class of goods/services that your brand covers based on your existing use, or expected use, of the brand in commerce. For example, you own and operate a retail space where apparel is sold and you want to protect the brand name of the retail space (the name of the store).  You may want to seek protection in a services based trademark class for the bran associated with the retail space.  If the apparel sold at the retail space, the products, use the same brand, you may want to seek protection in a second product based class for the applicable apparel.  You can seek federal trademark protection in multiple classes of goods/services in the same application.  Generally, the scope of your federal protection is limited to the class of good/services in your federal trademark registration. Common law rights are handled differently.

In a recently released opinion, the Eleventh Circuit Court of Appeals held that a federal trademark registrant’s services based brand had extended protection related to goods. Savannah College of Art & Design, Inc. v Sportswear, Inc., 2017 U.S. App. LEXIS 19168 (11th Cir. Oct. 3, 2017).  The Court relied on a prior trademark case that extended protection of federally registered service marks to goods, despite little rational as to the basis for the expansion.  The Sportswear case stated that a federal registered service mark does not have to register that mark for goods to “establish the unrestricted validity and scope of the service mark, or to protect against another’s allegedly infringing of that mark on goods.” Id. at *15.  The registrant still needs to show the alleged infringer’s use of its brand is creating consumer confusion as to the source or origin of the brand. Notably, the Court did not discuss the “natural zone of expansion” doctrine, which can be used be extend a trademark owner’s rights into a new product line that is a natural expansion of their prior use.

While the Sportswear case helps trademark owners for services assert their rights for related goods, the optimal method of protection is registering the brand in the class from the outset.  As a trademark applicant, you can seek registration based on your actual use of the brand in a services field, while also applying for the same brand in a goods classes based upon your bona intent to use the brand in business in the future.  A well thought out branding strategy may include preserving your rights in a field that you plan to expand into.  While the trademark cannot register until you begin use of the brand in the applicable class, you can effectively preserve your place in line for up to three years (extending use in 6 month intervals) while you are preparing to use the brand in commerce.  Utilizing a trademark attorney helps you develop a branding strategy to maximize your protection now and for the future.  Don’t forget, a trademark is an asset and can have immense value. Just ask Apple and Google, whose brands are estimated to be worth $170B and $101B by Forbes, respectively.

For any questions about patents, trademarks, and copyrights, or IP generally, please contact Greg Popowitz below.  Follow him on Twitter @InventionAtty.

Greg M. Popowitz, Esq.

Registered Patent Attorney

AV Rated by Martindale-Hubbell

Intellectual Property Litigation

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Intellectual Property, Labor & Employment, Creditors’ Rights & Bankruptcy, Business Litigation, Corporate & Finance, Real Estate, International Law

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Florida Judgment Interest Rate Increase to 5.35%, sort of.

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Hamilton – Assouline & Berlowe – Business Law Firm – joint tax disclosure by US and Swiss governme

Florida has a very interesting way to keep track of the interest rate of a Florida judgment.  Unlike the old system that was in place, Florida requires a judgment holder to compute the interest rate of their judgment by the quarter of the year.  The interest rate is determined by Florida’s Chief Financial Officer.  So, it is possible that a judgment that is one year old may have more than one interest rate for the past one year period.

After being stuck at 4.75% from October 2011 to March 2016, Florida’s interest rate has been steadily creeping upward.  During the second quarter of 2017, Florida’s judgment interest rate was 5.17%.  Florida’s CFO has just announced that the new applicable interest rate for the third quarter of 2017 is now 5.35%.  Florida’s interest rate is now at its highest in 6 years.

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Ethical Training in the Military – JNF Speaker Series

IntroJNF

Assouline & Berlowe, P.A., Litigation Partner, Eric N. Assouline, Esq., had the pleasure of introducing Lt. Col. Zohar Vloski, of the Israel Defense Forces (IDF), and JNF Israel Emissary for Florida, when he spoke at the Lawyers for Israel Speaker Series in Fort Lauderdale, Florida.

Zohar Vloski, has been a senior educator for three decades and an expert in the area of the State of Israel’s focus on leadership, values, Jewish identity, Zionist identity, and Israeli identity.   Until recently, Zohar served as the Executive Director of JNF’s Education Division for nearly three years.

Prior to his JNF educational position, Zohar was an educational entrepreneur in innovation in education and led projects and educational programs in Israel and abroad, including American-Israelis in North America, and he also led many delegations to Poland.

Zohar has served in the IDF for 25 years as a commander of Education units & Education Officer and he previously played a key role in a series of senior IDF’s educational system, including the command of the IDF’s educational Midrashot, and management of all an educational ground forces.  During Zohar’s army service he led some projects connecting Taglit birthright to the army soldiers, “Witnesses in Uniform” IDF officers in Poland, Jerusalem tour for every IDF soldier, and Shabbat in Jerusalem for every IDF officer.   Zohar retired from IDF as a lieutenant colonel.

Zohar holds a master’s degree in law (LL.M) from Bar Ilan University as well as a bachelor degree in law (LL.B) from Shaarei Mishpat College, and he also has a graduate degree in the Land of Israel Studies (B. A) at Bar Ilan University.  Zohar  is also certified as an Israeli tour guide by the Ministry of Tourism, and as a senior educator and Poland guide Zohar graduate from Yad V’Shem and the ministry of Education and a graduate of Command and staff College of the IDF.

During Zohar’s presentation, he spoke of the IDF’s ethical training provided to its military forces and the need to balance the needs of its mission with the rights of those involved and affected by the mission.

 

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