Ellen Leibovitch Named Outstanding Board Member of the Year

Ellen SPBCBA Board Award

During the South Palm Beach County Bar Association’s 55th annual installation gala on June 4, 2106 at St. Andrews Country Club in Boca Raton, partner Ellen M. Leibovitch was named “Outstanding Board Member of the Year.”  Ellen has served on the association’s board of directors for the past five years.  During the 2015-2016 term, Ellen co-chaired the association’s annual holiday party as well as the search committee to replace the association’s executive director.  Ellen has also served as the editor-in-chief for the association’s newsletter – The Advocate – for the past three years.  Ellen is also the board liaison to the association’s Labor & Employment committee which sponsored a CLE seminar in the Fall of 2015 on the new  Computer Abuse and Data Recovery Act.  Congratulations, Ellen!

Ellen is a Florida Board Certified Labor and Employment Attorney with Assouline & Berlowe, P.A.  For any employment and labor questions, please contact Ellen below.


1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com


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

Miami • Ft. Lauderdale • Boca Raton

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Significant Changes to Overtime Regulations!


Just this week, the Department of Labor (DOL) released its much-anticipated final changes to the overtime regulations under the Fair Labor Standards Act (FLSA). The new guidelines will go into effect on December 1, 2016, so now is the time for covered employers to start preparing.

What has changed?

Most significantly, the new rules change the salary requirements for exempt employees. Under the old rules, employees could be classified as exempt from overtime if they were earning a salary of $455/week (or $23,660/year) and if they performed exempt professional, managerial, executive or administrative duties. Under the new rules, however, employees must earn $913/week (or $47,476/year) – MORE THAN DOUBLE THE PRIOR SALARY LEVEL – to meet the salary component of the exemption. The salary threshold will automatically be updated every three years, so this is a moving target. Note that the final rule did not include a change to the duties test.

Also, the new rule raises the salary threshold level for the highly compensated employee (HCE) exemption from $100,000 to $134,004. To be exempt, a HCE must customarily and regularly perform any one or more of the exempt duties or responsibilities of a professional, managerial, executive or administrative employee and have the primary duty of performing office or non-manual work. Like the standard salary level, the highly compensated employee salary level will increase every three years, beginning Jan. 1, 2020.

What does this mean?

For exempt employees earning at least $913/week, nothing will change. However, employees who are now classified as exempt but who are earning less than $913/week will lose their exempt status as of December 1, 2016. Becoming non-exempt means that these employees will be eligible for overtime pay when working over 40 hours in a work week, which also means that these employees will be required to record their hours worked. For exempt employees who never “punched a clock,” this may be demoralizing, although some may welcome the opportunity to earn overtime.

Note that employers will be able to count non-discretionary bonuses, incentive payments and commissions toward as much as 10% of the salary requirement. However, such payments must be made on at least a quarterly basis.


What should you do?


  • Determine which employees will be impacted by these new rules, if anyone.
  • Assess the cost of reclassifying these employees as non-exempt or increasing their salaries in accordance with the new guidelines to keep these employees exempt.
  • For employees who will be reclassified as non-exempt, no additional costs will result:
    • if the newly non-exempt employees do not work overtime. Remember that even if you have a policy that requires all overtime hours be approved in advance, non-exempt employees who work over 40 hours a week must be paid at the time and one-half rate.
    • if the hourly rate paid to the newly non-exempt employees is reduced to take into account the need for these employees to work some overtime hours each week.
  • Remember to train all newly-exempt employees on your time-keeping procedures.

Employers impacted by these new rules may need to consider covering increased overtime costs by reducing benefits, but this will certainly result in a drop in employee morale.


  • Notify impacted employees that changes are the result of new rules imposed by the DOL rather than a company decision
  • Assure reclassified employees that the changes do reflect the employer’s opinion of their work or the employees’ value to the company

As always, you should contact legal counsel for any specific questions you may have about the applicability of the FLSA to your business, these new rules and how to best implement same.

Ellen M. Leibovitch

Florida Board Certified Labor and Employment Attorney


1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com


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

Miami • Ft. Lauderdale • Boca Raton

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Protect Your Tech: Florida Bar CLE Edition



Earlier this month, I had the distinct pleasure to present at the Florida Bar Basic Technology CLE about how businesses, and their lawyers, can protect technology using Intellectual Property.  This was the first time a Florida Bar Basic CLE was focused on technology.  To keep the CLE interactive, the presentations included live tweeting using the #CLEHistory hashtag, interactive polls with the audience, and post presentation video outtakes.  The interactive nature of the CLE was perfect for a technology focused CLE.

My portion of the CLE focused on how technology is used protect intellectual property, with the focus on patents.  There are several options when determining how to use patent law to protect technology, from design patents to provisional and non-provisional utility patents.  There are key timetables and strategic considerations to assess when protecting your technology, both before and after the technology is finalized.

One of the interactive questions, pictured below,  I posted to the live audience was whether someone could put “patent pending” on a product as soon as a patent application was filed.  The question was posted during my presentation and the audience texted their results to get an immediate response to the question.  36% of the audience correctly chose the right answer of A – Yes.  Meaning you can put patent pending on a product as soon as you file a patent application.  However, the application must remain active, i.e. not abandoned, to continue marking the product as “patent pending.”  Notably, 44% of the audience thought patent pending depended on what type of patent application was filed.  This is not accurate as it does not matter if the patent application is design, provisional, or non-provisional.

assouline & belrlowe, interactive polling

There are many misconceptions about patent law and it is important to consult with a registered patent attorney to review your technology and plan to maximize your protection.  It was an honor to speak at the first Florida Bar Basic Technology CLE and I enjoyed the interactive nature of the CLE.  Check the Florida Bar CLE page as the Technology CLE will be available for download in the near future.

For questions about Intellectual Property matters involving Technology, contact  Greg Popowitz below.


213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662


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

Miami • Ft. Lauderdale • Boca Raton

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PANAMA PAPERS – Subpoena Issued to Mossack Fonseca Regarding Daddy Yankee Assets

Miami Attorneys Issued a Subpoena to Mossack Fonseca, of the Panama Papers, regarding Daddy Yankee Assetsassouliene-vielleville-berlowe-2
4/12/16- Eric Assouline, Daniel Vielleville, and Peter Berlowe, with ASSOULINE & BERLOWE, P.A., Miami – Picture from Daily Business Review Article 4-14-2016 By AM Holt

 Keeping the whereabouts of your assets is ok, except when . . .

This is a burning question that has surfaced in light of the Panama Papers.  When is it ok to have off shore accounts?  The simple answer is when you do not owe anyone any money and after you have paid all the taxes that are due on the assets that you wish to keep secret.   See recent article by Real Estate and Corporate Law Partner David Blattner: Have the Panama Papers Taught Us Anything We Didn’t Already Know?

You cannot maintain a secret web of companies, with the intention of hiding this information from creditors to whom you owe money.  That is illegal.

You cannot transfer assets that would be subject to execution by a creditor to an off shore, or out of state company, in order to not pay debts that you owe.  That is illegal.

This is the basis of the investigation that has been opened up as to all the public figures mentioned in the Panama Papers.  Including noted celebrity Daddy Yankee.

In today’s Daily Business Review, South Florida’s prominent daily business paper, one of the headline stories regards Assouline & Berlowe, P.A.’s subpoena issued to Mossack Fonseca, the Panamanian law firm that has gained notoriety for opening off shore accounts for high profile individuals all over the world.

Through their subpoena, Assouline & Berlowe, on behalf of their clients, creditors of Daddy Yankee, are seeking financial information from Mossack Fonseca as to Daddy Yankee’s assets and financial affairs.

A link to the complete article is: http://www.dailybusinessreview.com/home/id=1202754983211/Panama-Papers-Reports-Show-Daddy-Yankee-Might-Have-a-Way-to-Pay-Millions-Owed?mcode=1202617073880&curindex=2

For more information regarding this case, please contact Daniel E. Vielleville, Peter E. Berlowe, or Eric N. Assouline.


/12/16- Eric Assouline, Daniel Vielleville, and Peter Berlowe, with ASSOULINE & BERLOWE, P.A., Miami – Photo by Daily Business Review Photographer AM Holt 


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What is Good for the Goose . . . Florida Supreme Court Rules Opposing Counsel’s Billing Records are Relevant to the Reasonableness of Amount Sought

The Supreme Court of Florida has put the stamp of legitimacy on an argument long disfavored by large institutions when they lose a case and are faced with having to pay attorneys’ fees to the prevailing party.

Whether based upon an Offer of Judgment, by contract, or by statute, the issue of the reasonableness of attorneys’ fees sought by the prevailing party is often a contested matter.  Unfortunately, as both a delay tactic and a means to reduce the amount the prevailing party may recover, larger institutions all too often argue that the amount of attorneys’ fees sought by the entitled party is unreasonable.

On March 24, 2016, the Supreme Court of Florida issued its opinion in the case of Paton v. GEICO General Insurance Co.  In Paton, the plaintiff sued its insurance company for failing to pay a claim.  After winning at the trial level the Plaintiff sought attorneys’ fees from the defendant insurance company, as provided by statute.  As part of the Plaintiff’s preparations for presentation as to the amount of attorneys’ fees sought, Plaintiff propounded paper discovery on the insurance company related to their attorneys’ billing records and other related attorneys’ fees discovery.  The insurance company objected to the discovery propounded by the plaintiff, and the basis for the objection is the subject of the Supreme Court of Florida’s review.

At the Supreme Court of Florida level, Florida’s high court ultimately held that, in light of the objections raised by the insurance company, as to the amount of attorneys’ hours expended by the Plaintiff, the amount of hours expended by the insurance company’s attorneys was relevant to the issue of the reasonableness.

Although the court noted that this is an issue that falls within the decision of the trial court, the fact that the Supreme Court of Florida, the highest court in the State of Florida, one of the most densely populated states in the nation, recognizes the legitimacy of this argument will help prevailing party’s attorneys to argue these records should be produced when the issue is contested.

If you wish to discuss this opinion or any other attorneys’ fees issue, please do not hesitate to contact our office.

ERIC N. ASSOULINE, ESQ., Assouline & Berlowe, P.A., Miami – Ft. Lauderdale – Boca Raton






Attorneys' Fees - Assouline & Berlowe

Attorneys’ Fees in Florida – Opposing Counsel’s Billing Records are Relevant

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“Trump” the Union Workers! – In re The Bankruptcy of Trump Entertainment Resorts – 2016 Decision from 3rd Circuit Court of Appeal

Bankruptcy Litigation

Bankruptcy Adversary Proceeding Defense Attorney Eric Assouline Preferential Transfer

Trump Entertainment Resorts and its predecessors have filed for Chapter 11 bankruptcy protection four times, in 1991, following construction of the $1-billion Trump Taj Mahal, and in 2004, 2009 and 2014.

Last week the 3rd Circuit Court of Appeals, issued an important ruling.  Here are excerpts from the opinion:

This appeal requires us to resolve the effect of two potentially conflicting provisions of federal law. Section 1113 of the Bankruptcy Code allows a Chapter 11 debtor to “reject” its collective bargaining agreements (CBAs) under certain circumstances.1 The National Labor Relations Act (NLRA) prohibits an employer from unilaterally changing the terms and conditions of a CBA even after its expiration.2 Thus, under the NLRA, the key terms and conditions of an expired CBA continue to govern the relationship between a debtor-employer and its unionized employees until the parties reach a new agreement or bargain to impasse. This case presents a question of first impression among the courts of appeals: is a Chapter 11 debtor-employer able to reject the continuing terms and conditions of a CBA under § 1113 after the CBA has expired?UNITE HERE Local 54 (Union) appeals the Bankruptcy Court’s order granting the Debtors’ motion to reject their CBA with the Union pursuant to § 1113(c). The Union contends that the Bankruptcy Court lacked subject matter jurisdiction to approve the Debtors’ motion because the CBA had expired. The Debtors, Trump Entertainment Resorts, Inc., and its affiliated debtors,3 contend that § 1113(c) governs all CBAs, expired and unexpired, and that the Bankruptcy Court’s interpretation of § 1113 is consistent with the policies underlying the Bankruptcy Code.We conclude that § 1113 does not distinguish between the terms of an unexpired CBA and the terms and conditions that continue to govern after the CBA expires.

Thus, we will affirm the order of the Bankruptcy Court. – See more at: http://caselaw.findlaw.com/us-3rd-Circuit/1723108.html#sthash.QY9WSfqj.dpuf

Under the policies of bankruptcy law, it is preferable to preserve jobs through a rejection of a CBA, as opposed to losing the positions permanently by requiring the debtor to comply with the continuing obligations set out by the CBA. Moreover, it is essential that the Bankruptcy Court be afforded the opportunity to evaluate those conditions that can detrimentally affect the life of a debtor, whether such encumbrances attach by operation of contract or a complex statutory framework. In light of Chapter 11’s overarching purposes and the exigencies that the Debtors faced, we conclude that the Bankruptcy Court did not err in granting the Debtors’ motion.

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ASSOULINE & BERLOWE 13th Anniversary Lunch


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