Just Kidding: “NoJoke” Brand for E-Cigarettes Not Confusing with “Joker” for Cigarette Paper

The Trademark Trial and Appeal Board (TTAB) found the mark JOKER for cigarette paper dissimilar with the mark NOJOKE for e-cigarettes. Republic Technologies, owner of the mark JOKER and related federal trademark registration, opposed an application to register the mark NOJOKE for e-cigarette liquid.

During the federal trademark application process, after examination by the Examining Attorney, a trademark application is published in the Official Gazette for 30 days. During these 30 days, a third party can oppose the trademark application with the TTAB presuming there are grounds to challenge the application. Until the opposition is resolved, the application process is stalled. Often oppositions are based on a likelihood on confusion between the opposer’s mark and the applied for mark, as was the case with Republic Technologies. A TTAB opposition is effectively litigation within the TTAB, but the fight is over the right to register the applied for mark, as opposed to damages in typical litigation.

Some trademark owners engage watch services to monitor what marks are applied for with the United States Patent and Trademark Office (USPTO) and what marks reach the publication period. This is critical so the potential opposer can either contact the applicant directly, or formally oppose the application during the 30 day publication window with the USPTO. If this window is missed, the opposer would have to wait and seek cancellation of any resulting registration. The opposer may also have grounds to assert trademark infringement if or when the applicant begins using the applied for mark in business.

In some cases, the opposer and applicant agree to enter into a co-existence agreement. A co-existence agreement is a contract where each party agrees that the respective marks (brands) do not cause confusion in the marketplace, that the parties will not oppose each other’s applications/registrations in the specified classes, and other conditions as the parties agree upon. Oftentimes, an Office action rejection by an Examining Attorney based on likelihood of confusion will be retracted if the parties enter into a co-existence agreement with the correct language.

Turning back to the TTAB decision here, the TTAB stated that the products are related as they are sold by the same retailers (cigarette paper and e-cigarette liquid). The board also noted that the federal government restricts the marketing of cigarette paper. This fact decreased the strength of opposer’s mark as the opposer is limited to direct retail sales, trade shows, and point of sale engagement.

Although the two marks use the same base of JOKE, the TTAB held that that two marks have different impressions. NOJOKE emphasizes the truthfulness of something potentially unbelievable, and communicates an air of seriousness. While JOKER, and its design mark (logo) gives the impression of a court jester, a comic foolish clown. The TTAB stated that despite the common base term, the meaning and impressions of the marks are not similar. The Board dismissed the opposition, which allows the application for NOJOKE to proceed.

If you need help monitoring your trademark portfolio or want to oppose/cancel a pending trademark application/registration, contact Board Certified Intellectual Property Attorney Greg Popowitz.

Greg M. Popowitz, Esq.

Board Certified in Intellectual Property Law

Registered Patent Attorney

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd Street, Suite 3105

Miami, Florida 33131

Main: 305.567.5576

Fax: 305.567.69343

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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Congrats Ellen Leibovitch!

The team at Assouline & Berlowe P.A. congratulates Board Certified Labor and Employment Partner Ellen Leibovitch for being sworn in on Saturday night as President of the South Palm Beach County Bar Association. Assouline & Berlowe P.A. is proud of Ellen’s achievement and is excited to see what Ellen has in store for her term as President.

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-5576

www.assoulineberlowe.com

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MIAMI IS THE TALK OF THE TOWN (REALLY THE ENTIRE COUNTRY)

Miami Tower – Headquarters for Miami Business Law Firm Assouline & Berlowe

What a time to be in Miami. To think, with all the bad things going on in the world, Miami seems like it is a magical place.

Yesterday, history was made with the confirmation of Judge Ketanji Brown Jackson to the United States Supreme Court, making her the first black female justice in history and only the 8th Justice out of 116 on the High Court who was not a white male. But here in Miami we are extra proud, as Justice Jackson is the first Floridian on the Supreme Court and Her Honor was born and raised in Miami. Justice Jackson graduated from Palmetto High School and was a classmate of Assouline & Berlowe name partner Peter Berlowe. In fact their names, Berlowe and Brown, are so close in the alphabet that they appear on opposite pages of the high school yearbook.

Justice Jackson’s father, Johnny Brown, was also a graduate of the University of Miami School of Law, as were the two named partners of Assouline & Berlowe.

Miami is also going through a transformation to become a hub of technology and innovation. This month is Miami Tech month, with last week being Miami NFT Week, and this week kicked off Bitcoin 2022, a conference in Miami Beach with 30,000 attendees, the largest Bitcoin conference in the world.

In the professional basketball department, the Miami Heat have locked in 1st place in the NBA Playoffs. In the professional hockey department, the Florida Panthers have locked in 1st place in the NHL playoffs. In the professional football department, the Miami Dolphins have acquired six time pro bowl wide receiver Tyreek Hill, possibly the most high profile trade ever made for the team. And today is opening day for the Miami Marlins, who have also made a few high profile off season trades to be more competitive.

Up the road, today is another historic day in Florida in that it is the first time that the United States has sent up a space mission to the International Space Station with four civilian passengers.

Miami and Florida has seen an incredible growth in population and popularity over the past several years and in the midst of all the bad in the world has stood out as a beacon of hope.

For all of us to be here in Miami at this time, we should be exceptionally grateful and appreciate what we are a part of and cherish it.

Eric N. Assouline, Esq., Managing Partner, Assouline & Berlowe

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Employment Law Update: Florida’s “Stop WOKE” Act

Florida’s legislature has passed a law that will impact the manner in which employers conduct workplace training.

Under Florida House Bill 7/Senate Bill 148 (HB 7), nicknamed the “Stop Woke Act” (the “Act”), any employment practices or training programs that cause an individual to feel discomfort or distress by suggesting that they are responsible for actions “committed in the past by other members of the same race, color, sex or national origin,” could be considered an unlawful employment practice and subject an employer to liability. 

HB 7 closely mirrors former President Donald Trump’s 2020 Executive Order prohibiting divisive concepts in diversity training in the Executive Branch. The order was the subject of multiple First Amendment lawsuits, was enjoined nationwide by a federal court, and was ultimately revoked by President Joe Biden.  If the Act is signed into law by Governor DeSantis – which is likely to occur – similar legal challenges are expected.

Among other things, the Act, which applies to public and private employers with at least 15 employees, will amend the Florida Civil Rights Act to provide that subjecting a person, as a condition of employment, to training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels such individual to believe any of the following concepts, constitutes discrimination based on race, color, sex, or national origin:

  1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
  2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
  3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
  4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
  5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
  6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
  7. An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin.
  8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.

The law does not prohibit discussion of these concepts as part of a course of training or instruction, provided such training or instruction is given in an “objective manner without endorsement of such concepts.”

Any employee who believes their employer has violated the Act can pursue a claim for relief, including damages and attorneys’ fees, under Fla. Stat., §760.11.

Once signed into law, the Act is set to take effect on July 1, 2022.  When and if that occurs, employers who offer training to employees on discrimination and harassment should be prepared to tailor such training to comply with the Act.

The full text of the Act can be found at:

If you have any questions about this or any other employment law matters, please contact Ellen Leibovitch.  Thank you.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2101 N.W. Corporate Blvd., Suite 410

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

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eml@assoulineberlowe.com

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4/30: Ellen Leibovitch to be Sworn In as South Palm Beach County Bar Association President

Assouline & Berlowe is excited to announce that, on April 30, 2022 at St. Andrews Country Club in Boca Raton, Board Certified Labor and Employment Partner Ellen Leibovitch will be installed as the President the South Palm Beach County Bar Association at the association’s first gala since 2019!  A copy of the evite is accessible at https://conta.cc/3hQWYfZ.  To register, please visit SouthPalmBeachBar.org/Gala.

You are welcome to attend regardless of whether you are a member of the association, and Ellen would love to see you at the gala to celebrate.  Details for purchasing tickets are in the invitation, and sponsorship opportunities (many of which include tickets) may be available as well.

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-557

www.assoulineberlowe.com

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Employment Update: Forced Arbitration in Sexual Harassment Cases

On February 10, 2022, the U.S. Senate passed H.R. 4445, entitled “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.” The purpose of this Act is to outlaw forced arbitration clauses and joint-action waivers in employment contracts for sexual harassment and assault cases.

The Act, which is soon expected to be signed by President Biden, renders mandatory arbitration clauses and joint-action waivers for these type of claims unenforceable.  The Act is silent as to whether these provisions will be enforced in similar cases involving, for example, claims of racial harassment, age discrimination, etc.

The Act expressly applies “to any dispute or claim that arises or accrues on or after the date of enactment.”  Whether a claim filed after enactment of the Act based on conduct that occurred prior to enactment will be exempt from arbitration and class action remains to be seen, but plaintiffs’ attorneys will surely favor of such a reading. 

Practically speaking, contracts that contain mandatory arbitration or joint-action waivers for sexual assault or harassment should be modified to exempt these claims, though other similar claims may still be subject to mandatory arbitration, class and collective action waivers, etc.

For your review, the relevant text of the Act is as follows:

§ 402. No validity or enforceability

(a) IN GENERAL.—Notwithstanding any other provision of this title, at the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispute arbitration agreement or predispute joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.

(b) DETERMINATION OF APPLICABILITY.—An issue as to whether this chapter applies with respect to a dispute shall be determined under Federal law. The applicability of this chapter to an agreement to arbitrate and the validity and enforceability of an agreement to which this chapter applies shall be determined by a court, rather than an arbitrator, irrespective of whether the party resisting arbitration challenges the arbitration agreement specifically or in conjunction with other terms of the contract containing such agreement, and irrespective of whether the agreement purports to delegate such determinations to an arbitrator.

For any questions, please feel free to contact Labor and Employment Law Attorneys Ellen Leibovitch and Giancarlo Cellini at Assouline & Berlowe.

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-557

www.assoulineberlowe.com

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HAPPY ANNIVERSARY – Two Us, 19 Years!

Litigation Partners Eric N. Assouline and Peter E. Berlowe making the University of Miami sign

Nineteen years ago today, two guys, both graduates from the University of Miami School of Law, who both served on the University of Miami Law Review, left the comforts of big law life at the international powerhouse law firm Weil, Gotshal & Manges, LLP and started their own law firm Assouline & Berlowe.

Hundreds of cases later, and literally tens of thousands of manpower hours later, the firm has established a name for itself as a South Florida business law firm with excellent lawyers and a strong reputation for legal advocacy for its clients.

Congratulations to Assouline & Berlowe, and all of its attorneys, staff, clerks, and their families on this impressive accomplishment.

Eric N. Assouline, Esq. – Managing Partner

@assoulineberlowe

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Colorado Criminalizes Use of Void Non-Compete Agreements

With a law going into effect on March 1, 2022, the state of Colorado will become the first state to criminalize, as a Class 2 misdemeanor, the use of “void” non-compete agreements (i.e., restrictive covenants).

Under the laws of Colorado, a non-compete is “void” unless it relates to a contract: (1) for the purchase and sale of a business (or its assets), (2) for the protection of trade secrets, (3) for the recovery of expenses of educating and training an employee, or (4) for executive/management personnel.

Under the new law, asking an employee to sign a restrictive covenant that does not fall into one of the four categories above can subject the offending employer to up to 120 days imprisonment, a $750 fine, or both.

This law does not, however, expand any of the existing laws, but rather implements a criminal penalty for violating the existing statutes governing non-competes.

For any additional employment or labor related questions, please call the attorneys at Assouline & Berlowe, P.A.

Eric N. Assouline, Esq.

ASSOULINE & BERLOWE, PA.

Miami – Ft. Lauderdale – Boca Raton

http://www.assoulineberlowe.com

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Patent Office Action Timing Estimator is Live!

As an attorney prosecuting patent applications with the United States Patent and Trademark Office (USPTO), clients often ask how long the patent application process will take. Sadly, I can only give an estimate based on historical times and the subject matter of the invention. The invention subject matter is important as art units within the Patent Office have wide ranging backlogs for review of pending applications.

Once the patent application is filed, we wait for the first office action on the merits. This is when the USPTO Examiner substantively reviews the patent application. Now, the Patent Office has updated the First Office Action Estimator. After entering the patent application serial number, the estimator will provide an estimate for a first office action to be issued (e.g., 30 months). The estimate is not guaranteed but is a good general timeframe for patent applicants to gauge expectations.

Setting expectations for first office review timing is important for the applicant. First, if the expectation is too long, there are options to accelerate the review of a patent application. The most common option is to pay an increased filing fee where the patent office will review the application approximately six months from the filing date of the application, and the target is to either grant or issue a final (second) rejection by the one year anniversary of the filing date. Another option to accelerate the patent office review are petitions to make special, the basis of which may include: applicant’s age (over 65), health, prospective manufacture, infringement, and environmental quality (to name a few). It is critical to be accurate in these petitions as they are often used as grounds to try and invalidate patents during litigation.

Second, if an applicant becomes aware of a potential infringement of the patent application proposed claims (as written), the applicant can preserve its provisional rights. Although similar in name to a provisional patent application, provisional rights are unrelated. If an applicant sends notice to the potential infringer of the published patent application, and the claims are in substantially the same form at issuance, applicant preserves its provisional rights and may be able to secure damages from the notice date, as opposed to when the patent issues.

Third, knowing when a patent will issue is important if the applicant is aware of infringement of the invention covered by the patent claims. A patent infringement lawsuit can only be filed once the patent issues. Often, once a patent application receives a Notice of Allowance, the applicant and its attorneys can start preparing a federal complaint for patent infringement, if infringement is occurring. Once the issue fee is paid, the applicant (soon to be patent holder) will be prepared to file its lawsuit in federal court on the day the patent issues.

For questions about your invention or the patent application/litigation process, please contact Greg Popowitz and the Intellectual Property team at Assouline & Berlowe PA.

Greg M. Popowitz, Esq.

Board Certified in Intellectual Property Law

Registered Patent Attorney

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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BANKRUPTCY LAW UPDATE – 11th Circuit Clarifies Case of First Impression, as to Whether a Roth IRA is exempt, Yes, In Georgia.

The BUSINESS LAW Firm – Assouline & Berlowe, Headquarters, Miami Tower, Miami, Florida

The Eleventh Circuit, in a case of first impression, clarified that in Georgia, which may have similar exemptions for garnishments in other states in the circuit (including Florida), a Roth IRA is exempt from the bankruptcy estate.

The 11th Circuit held:

As noted above, a debtor’s property is excluded from his bankruptcy estate pursuant to federal law if: (1) the debtor has “a beneficial interest in a trust”; (2) the interest has a restriction on transfer; and (3) the restriction is enforceable under either state or federal law. See § 541(c)(2); Upshaw, 542 B.R. at 622. Roth IRAs meet all three requisite elements. No one contests that, just like a traditional IRA’s corpus, a Roth IRA’s corpus qualifies as a beneficial interest in a trust. And, pursuant to both the 2006 and the 2016 amendments to the exemptions provision, Roth IRAs have a restriction on transfer that is enforceable under state law. The Bank offers no viable reason why Roth IRAs should not be treated like traditional IRAs in the context of bankruptcy estate exclusion.
In re: TIMOTHY RUSSELL HOFFMAN, Debtor. TIMOTHY RUSSELL HOFFMAN, Plaintiff-Appellant, v. SIGNATURE BANK OF GEORGIA, Defendant-Appellee., No. 20-12823, 2022 WL 203415, at *4 (11th Cir. Jan. 24, 2022)

Eric N. Assouline, Esq.

ASSOULINE & BERLOWE

Full opinion downloaded from Westlaw below:

2022 WL 203415

Only the Westlaw citation is currently available.

United States Court of Appeals, Eleventh Circuit.

In re: TIMOTHY RUSSELL HOFFMAN, Debtor.

TIMOTHY RUSSELL HOFFMAN, Plaintiff-Appellant,

v.

SIGNATURE BANK OF GEORGIA, Defendant-Appellee.

No. 20-12823

|

01/24/2022

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 3:19-cv-00095-TCB

Before WILSON, LAGOA, and ED CARNES, Circuit Judges.

Opinion

WILSON, Circuit Judge:

*1 Appellant-Debtor Timothy Hoffman appeals the district court’s affirmance of the bankruptcy court’s order granting Appel-lee-Creditor Signature Bank of Georgia’s (the Bank) objection to Hoffman’s claimed bankruptcy estate exemptions. The Bank ob-jected to Hoffman’s claimed exemptions of various retirement accounts. The bankruptcy court granted the Bank’s objections as to Hoffman’s Roth Individual Retirement Accounts (IRA), concluding that Roth IRAs—unlike traditional IRAs and 401(k) accounts—are not excluded from bankruptcy estates. The district court affirmed the bankruptcy court’s order.

This appeal presents an issue of first impression for this court: Are Roth IRAs excluded from Georgia debtors’ bankruptcy estates pursuant to federal law? Because we answer the question in the affirmative, we reverse the district court’s affirmance of the bankruptcy court’s order and remand for further proceedings con-sistent with this opinion.

I.

Timothy Hoffman is a retired U.S. Air Force Colonel and private pilot. Hoping to help his son-in-law pursue his dream of opening a restaurant, Hoffman guaranteed a loan of approximately $432,000 with the Bank. The restaurant ultimately failed, resulting in Hoffman defaulting on his loan from the Bank and filing for Chapter 7 bankruptcy.

In his bankruptcy schedules, Hoffman disclosed an interest in the following retirement accounts: (1) Traditional IRA, (2) Roth Conversion IRA, (3) Roth Contributory IRA, and (4) Fidelity 401(k). Hoffman claimed all of the accounts as exempt on his bankruptcy Schedule C.1

The Bank filed an objection in the bankruptcy court to Hoffman’s claimed exemptions, asserting that his retirement accounts either were not qualified retirement plans or did not otherwise qualify as exempt. In reply, Hoffman maintained that all of his retirement accounts are legally exempt. Specifically regarding the Roth IRAs, Hoffman asserted that they either were excluded from the estate pursuant to 11 U.S.C. § 541(c)(2), or, if not excluded, were exempt under O.C.G.A. § 44-13-100(a)(2)(E).2 As to exclusion, Hoffman argued that Georgia’s revised garnishment statute applies to Roth IRAs. Accordingly, Hoffman contended that the court should revisit precedent analyzing a prior version of Georgia’s garnishment statute—a version that applied only to traditional IRAs.

The bankruptcy court entered a final order overruling the Bank’s objections as to Hoffman’s traditional IRA and 401(k) account but sustaining the objections as to Hoffman’s two Roth IRAs. Regarding Hoffman’s Roth IRAs, the bankruptcy court acknowl-edged that Georgia’s garnishment statute underwent an expansive overhaul but noted that there appeared to be no recent authority addressing the contention that Roth IRAs should be excluded under § 541(c)(2).3

*2 Hoffman appealed the bankruptcy court’s ruling that the un-distributed funds in his Roth IRAs are not excluded from his bankruptcy estate. The district court agreed with the bankruptcy court’s assessment, declining to rule otherwise on an issue of first impression. Hoffman timely appealed.

This appeal requires us to determine what is properly included in, and excluded from, the property of a bankruptcy estate. After a careful review of the record and with the benefit of oral argument, we reverse the ruling of the district court. Statutory interpretation as well as the development of caselaw in this area con-vince us that IRAs—whether they be traditional IRAs or Roth IRAs—are excluded from the bankruptcy estates of Georgia debtors pursuant to the Bankruptcy Code and Georgia’s garnishment statute. This conclusion follows naturally from the applicable law and statutory amendments, an overview of which we provide be-low.

II.

We act as a second court of review in bankruptcy appeals, independently examining the factual and legal determinations of the bankruptcy court and applying the same standard of review as the district court. In re Brown, 742 F.3d 1309, 1315 (11th Cir. 2014). When, as here, the district court affirms the bankruptcy court’s order, we consider the bankruptcy court’s decision directly. Id. Because the sole issue in this case is a pure question of law—the proper construction and interpretation of the Bankruptcy Code—we conduct a de novo review. See In re Meehan, 102 F.3d 1209, 1210 (11th Cir. 1997).

III.

The Bankruptcy Code provides that property of a bankruptcy estate includes “all legal or equitable interests of the debtor in property as of the commencement of the case.” 11 U.S.C. § 541(a)(1). The Code, however, “excludes from the bankruptcy estate property of the debtor that is subject to a restriction on transfer enforceable under ‘applicable nonbankruptcy law.’ ” Patterson v. Shumate, 504 U.S. 753, 755 (1992) (quoting § 541(c)(2)). “[A]pplica-ble nonbankruptcy law” has been interpreted to include “any relevant nonbankruptcy law”—whether it be federal or state law. Id. at 759.

On appeal, Hoffman contends that his Roth IRAs should be excluded from his estate pursuant to 11 U.S.C. § 541(c)(2). Section 541(c)(2) provides that “[a] restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable nonbankruptcy law is enforceable in a case under this title.” Thus, a debtor’s property is excluded from his bankruptcy estate pursuant to § 541(c)(2) if three elements are met: (1) the debtor has “a beneficial interest in a trust”; (2) the interest has a restriction on transfer; and (3) the restriction is enforceable under either state or federal law. See id.; see also In re Upshaw, 542 B.R. 619, 622 (Bankr. N.D. Ga. 2015).

The relevant state law here is the exemptions provision of Georgia’s garnishment statute, O.C.G.A. § 18-4-6 (exemptions provision). Georgia’s current exemptions provision provides that “[c]ertain earnings or property” may be exempt from the process of garnishment. Id. § 18-4-6(a)(1). One such example of exempt property concerns funds from an IRA: “Funds or benefits from an individual retirement account or from a pension or retirement program shall be exempt from the process of garnishment until paid or otherwise distributed to a member of such program or beneficiary thereof.” Id. § 18-4-6(a)(2).

*3 We have found that the prior version of the exemptions provision, § 18-4-22(a),4 “clearly constitutes ‘applicable nonbankruptcy law’ ” and that the prohibition on garnishment is an enforceable restriction on transfer for the purposes of 11 U.S.C. § 541(c)(2). See Meehan, 102 F.3d at 1211–12. We therefore concluded that an IRA established under 26 U.S.C. § 408—a traditional IRA—is excluded from a debtor’s estate under § 541(c)(2) because it is exempt from garnishment pursuant to Georgia law. Id. at 1211–14.

At the time that we decided Meehan, traditional IRAs were the only type of IRAs in existence. It was not until the following year, 1998, that Roth IRAs were created with the enactment of 26 U.S.C. § 408A. Section 408A(a) instructs us that “a Roth IRA shall be treated for purposes of this title in the same manner as an individual retirement plan.”

In 2005, eight years after Meehan and seven years after the creation of Roth IRAs, the Bankruptcy Court for the Northern District of Georgia considered whether Meehan’s reasoning should extend to a Roth IRA. See In re Bramlette, 333 B.R. 911, 914 (Bankr. N.D. Ga. 2005). The Bramlette court declined to extend Meehan’s reasoning, finding that Roth IRAs should be included in a debtor’s bankruptcy estate when they were not statutorily exempt from garnishment. Id. The court reasoned that the exemptions provision “applies only to an individual retirement account within the mean-ing of 26 U.S.C. § 408 and Georgia law provides no similar protec-tion for a Roth IRA established under 26 U.S.C. § 408A.” Id.

However, in April 2006—the year after Bramlette was decided—the Georgia Assembly amended the exemptions provision to include IRAs listed under 26 U.S.C. § 408 or § 408A. The amended statute stated that “funds or benefits from an individual retirement account as defined in Section 408 or 408A … shall be exempt from the process of garnishment.” O.C.G.A. § 18-4-22(a) (amended 2016) (current version at § 18-4-6).

A decade later, in 2016, the Georgia Assembly further amended the exemptions provision, now codified at § 18-4-6, to state that “[f]unds or benefits from an individual retirement account … shall be exempt from the process of garnishment.” O.C.G.A. § 18-4-6(a)(2). Georgia’s current exemptions provision thus no longer differentiates between a traditional IRA and a Roth IRA, referring solely to “an individual retirement account.” See id.

IV.

We find that the development of the caselaw in this area and the subsequent amendments to the Georgia Code reflect the Georgia Assembly’s intention to clarify that both traditional IRAs as defined in 26 U.S.C. § 408 and Roth IRAs as defined in § 408A are exempt from garnishment, thus subjecting IRAs to a restriction on transfer by state statute, see Meehan, 102 F.3d at 1211–12, and mak-ing both types of IRAs eligible for exclusion under the Bankruptcy Code. The current version of the exemptions provision compels this result. By no longer listing the kinds of retirement accounts that are exempt from garnishment, and instead exempting “individual retirement account[s],” there is no basis for us to conclude that Georgia intended to treat traditional IRAs differently than Roth IRAs for the purpose of garnishment. It is undisputable that a Roth Individual Retirement Account, by its very name and defini-tion, is “an individual retirement account.” See O.C.G.A. § 18-4-6(a)(2); see also 26 U.S.C. § 408A(a) (noting that Roth IRAs shall be treated “in the same manner” as IRAs for the purposes of this title).

*4 As noted above, a debtor’s property is excluded from his bankruptcy estate pursuant to federal law if: (1) the debtor has “a beneficial interest in a trust”; (2) the interest has a restriction on transfer; and (3) the restriction is enforceable under either state or federal law. See § 541(c)(2); Upshaw, 542 B.R. at 622. Roth IRAs meet all three requisite elements. No one contests that, just like a traditional IRA’s corpus, a Roth IRA’s corpus qualifies as a beneficial interest in a trust. And, pursuant to both the 2006 and the 2016 amendments to the exemptions provision, Roth IRAs have a restriction on transfer that is enforceable under state law. The Bank offers no viable reason why Roth IRAs should not be treated like traditional IRAs in the context of bankruptcy estate exclusion.

V.

We accordingly now hold that Roth IRAs are excluded from a Georgia debtor’s bankruptcy estate pursuant to federal law. The judgment of the district court is therefore reversed, and the case is remanded so that the district court may reverse the order of the bankruptcy court.

REVERSED and REMANDED.

All Citations

— F.4th —-, 2022 WL 203415

Footnotes
1One of the many forms a debtor has to complete when filing for bankruptcy is Schedule C: The Property You Claim as Exempt. Schedule C is where debtors list all of the legally exempt property that they want to keep.
2Pursuant to 11 U.S.C. § 522(b)(2), Georgia has opted out of the federal bankruptcy estate exemptions, and O.C.G.A. § 44-13-100 governs the exemptions available to a debtor in bankruptcy in Georgia.
3The bankruptcy court also found that a Roth IRA is exempt under O.C.G.A. § 44-13-100(a)(2)(E), but only to the extent that it is reasonably necessary for the support of the debtor and his dependents. The court concluded that Hoffman’s Roth IRAs were not exempt under state law, and thus properly included in the estate, because the funds were not reasonably necessary to support him and his wife. Hoffman does not take issue with this alternative finding on appeal. Instead, Hoffman argues only that his Roth IRAs should be excluded from the bankruptcy estate pursuant to federal law (11 U.S.C. § 541(c)(2))—not that they should be exempt under state law (O.C.G.A. § 44-13-100(a)(2)(E)).
4The prior version of the exemptions provision provided that “funds or benefits from an individual retirement account as defined in Section 408 of the United States Internal Revenue Code of 1986, as amended, shall be exempt from the process of garnishment until paid or otherwise transferred to a member of such program or beneficiary thereof.” O.C.G.A. § 18-4-22(a) (amended 2006) (current version at § 18-4-6).
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