APRIL FOOL’S DAY? – NOT FOR LANDLORDS

As the enormity of the Coronavirus pandemic takes hold of the business community, the economic stranglehold on tenant’s ability to pay the rent due the first of the month is coming to bear. 

Today, April 1st, is the first due date for monthly rent since the March 11th apocalyptic change to the business environment.  The World Health Organization (WHO) declared on March 11 that the Coronavirus was a pandemic, an Oil Price War began, and President Donald Trump announced travel restrictions from Europe to the United States.  This was the beginning of the new era, which will mark when things changed. 

Tenants nationwide have announced that they will not be making today’s rent payment.  This will cause major pressure on landlords on how to deal with their own obligations to their lenders, to pay real estate taxes, as well as utilities that continue to be provided to the real property (even if they are getting less use), etc. Landlords need to take a good look at the rental environment and figure out their best strategy, especially in light of the fact that no one right now knows how long they are going to have to wait out this crisis. 

Eric N. Assouline, Esq.

Business Litigation Partner

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-5576

Email: ena@assoulineberlowe.com

www.assoulineberlowe.com

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

Miami · Ft. Lauderdale · Boca Raton

Leave a comment

Filed under Litigation, Real Estate

TRADEMARK ALERT – Is Your Brand “Dead” for Non-Use During the Covid-19 Shutdown?

We are in trying times. The Coronavirus known as Covid-19 has impacted the world. Businesses are trying to navigate how to operate in the middle of a pandemic. Emergency orders are continually coming out from all levels of government regarding essential and non-essential businesses, including “stay at home” orders. What if you are deemed a non-essential business and your business is effectively shutdown as a result? While direct revenue is likely a pressing concern, what about the brands around your products or services that you have built over the years?

Trademark law is centered upon use of a brand in commerce. Without use, the brand will eventually become abandoned. After three years of non-use without any attempt to resume use, the USPTO will presume the owner abandoned the brand. Section 71 of the Trademark Act is designed to remove “deadwood” from the register. However, it is not designed to cancel registrations due to a temporary interruption of use of the brand due to circumstances beyond the control of the trademark owner.

The Trademark Manual of Examination and Procedure (TMEP) details excusable (and non-excusable) non-use of a brand. See TMEP 1613.11.

Some examples of excusable non-use include:

  • Trade Embargo or Other Circumstance Beyond Holder’s Control (Covid-19?):  When the holder of the registered brand is willing and able to continue use of the brand in commerce, but is unable to do so due to a trade embargo
  • Sale of Business: Temporary non-use during the sale
  • Retooling: Limited circumstances if the tooling was critical and there was no other means to produce without the shutdown for tooling
  • Orders on Hand: If the product is the kind of good that cannot be produced quickly or in large numbers (for example, airplanes), but there are orders on hand and activity toward filling them
  • llness, Fire, and Other Catastrophes (Covid-19?): Illness, fire, and other catastrophes may create situations of temporary non-use, with the holder being able to outline arrangements and plans for resumption of use.  Note, illness of the owner does not qualify as excusable non-use unless the business cannot operate without the owner

Examples of non-excusable non-use:

  • Business Decision: A business decision to stop use of the brand is not beyond the holder’s control
  • Decreased Demand: Decreased demand for the product sold under the brand, resulting in its discontinuance for an indefinite period
  • Negotiations with Distributors: Helps to show lack of intention to abandon the mark but not excusable non-use
  • Use in Foreign Country: This has no bearing on excusable non-use in the United States that can be regulated by the U.S. Congress (use in commerce)
  • Use of Mark on Different Goods/Services: Using the brand on goods/services outside of the registered class
  • Use of Mark in Another Form: Material changes to mark

Non-use of a brand due to Covid-19 may be covered as excusable non-use under “Other Circumstance Beyond Holder’s Control” and/or “Catastrophe”. If you have stopped using your brand, it is advisable to document the date you stopped using the brand in all related products and/or services covered by your trademark registration, including why you stopped using the brand. For example, shutdown orders by the government, lack of supply chain to make the products, or workers contracting Covid-19 and directly impacting your facilities. Documenting this situation will suport a declaration surrounding excusable non-use if or when you need to provide justification for the gap of time for non-use of your brand(s). You had spent considerable time and money building your brand through the years. It is important you take the necessary steps to protect the brand if use has temporarily stopped during this pandemic.

For any questions about excusable non-use or to look into protecting your brands, contact Greg Popowitz.

Greg M. Popowitz, Esq.

Make Your IP Pop

Registered Patent Attorney / Partner

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/

LinkedIn  ||  Twitter

Intellectual PropertyLabor & EmploymentCreditors’ Rights & BankruptcyBusiness LitigationCorporate & FinanceReal EstateInternational LawTrust & Estates, Probate and Guardianship

Leave a comment

Filed under Intellectual Property, trademark

BANKRUPTCY BREAKING NEWS – CHANGES DUE TO COVID-19

WASHINGTON, D.C. – According to the American Bankruptcy Institute (“ABI”), the Senate has now included certain provisions in the $2 Trillion “Coronavirus Aid, Relief and Economic Security Act” (“CARES Act”) in order to provide greater access to bankruptcy relief.  The Act, goes to the House, and , if passed, to President Trump.

According to ABI, certain provisions within Sect. 1113 of the CARES Act include:

  • Amendments to the newly created Small Business Reorganization Act of 2019 (SBRA) to increase the eligibility threshold for businesses filing under new subchapter V of chapter 11 of the U.S. Bankruptcy Code from $2,725,625 of debt to $7,500,000. The eligibility threshold will return to $2,725,625 after one year. The increased debt limit for struggling small businesses to access subchapter V reflects recommendations of ABI’s Commission to Study the Reform of Chapter 11.
     
  • Amending the definition of “income” in the Bankruptcy Code for chapters 7 and 13 to exclude coronavirus-related payments from the federal government from being treated as “income” for purposes of filing bankruptcy.
     
  • Clarifying that the calculation of disposable income for purposes of confirming a chapter 13 plan shall not include coronavirus-related payments.
     
  • Explicitly permitting individuals and families currently in chapter 13 to seek payment plan modifications if they are experiencing a material financial hardship due to the coronavirus pandemic, including extending their payments for up to seven years after their initial plan payment was due.

The bankruptcy provisions of the CARES Act listed above sunset within a year of the legislation being enacted.

Additionally, Sect. 3513 of the legislative package provides temporary relief for federal student loan borrowers by requiring the Secretary of Education to defer student loan payments, principal, and interest for 6 months, through September 30, 2020, without penalty to the borrower for all federally owned loans. This provides relief for over 95 percent of student loan borrowers.

Eric N. Assouline, Esq.

Business Litigation Partner

ASSOULINE & BERLOWE, P.A.

Miami Tower

100 SE 2nd St., Suite 3105

Miami, FL 33131

Telephone: 305-567-5576

Email: ena@assoulineberlowe.com

www.assoulineberlowe.com

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

Miami · Ft. Lauderdale · Boca Raton

Assouline & Berlowe SuperLawyers 2019

Leave a comment

Filed under Bankruptcy, BK, Business Litigation

U.S. Department of Labor Issues Final Rule To Update FLSA’s Joint Employer Regulations

In addition to all the other labor and employment updates in the law of the last week, the issue of “joint employment” has gone through an official transformation this past week. 

The issue of Joint Employer arises frequently in Fair Labor Standards Act (FLSA) cases when employees seek to hold more than one “employer” liable for overtime and other wages claimed to be owed.  Oftentimes, the question of whether entities can be considered joint employers is uncertain and differs from court to court.  In an effort to clarify the matter, the Department of Labor (DOL) has adopted a four-factor balancing test to determine joint employer status that is focused on decision-making (did the alleged employer have the right to hire and fire the employee?), supervision (did the alleged employer substantially control the conditions of employee’s employment?), payment (did the alleged employer set the employee’s pay?) and record-keeping (did the alleged employer maintain employment records?).

As with all balancing tests, no one factor is more important than the other.  The questions becomes whether, on balance, the employee performed work that benefitted more than one employer, and additional facts relevant to this inquiry may also be considered.

This final rule quietly went into effect on March 16, 2020 but was understandably overshadowed by critical issues surrounding COVID-19. 

Important to note that this rule is only applicable to joint employer issues arising under the FLSA and not to other federal laws impacting employment such as Title VII of the Civil Rights Act.

More information about the new rule can be found at https://www.dol.gov/agencies/whd/flsa/2020-joint-employment.

Of course, feel free to contact me if you have any questions.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower – Suite 135

Boca Raton, Florida 33431

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

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com


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


Miami • Ft. Lauderdale • Boca Raton 

Leave a comment

Filed under Labor & Employment, Uncategorized

URGENT EMPLOYMENT LAW UPDATE – FAMILIES FIRST CORONAVIRUS RESPONSE ACT

The Families First Coronavirus Response Act (“Act”) was signed into law on March 18, 2020, takes effect on April 2, 2020 and expires on December 31, 2020.  This email briefly summarizes those aspects of the Act applicable to employers with fewer than 500 employees.

EMERGENCY FAMILY & MEDICAL LEAVE

The Act amends the Family & Medical Leave Act (“FMLA”) by providing 12 weeks of job-protected leave for employees who have been on the job for at least 30 days, as follows:

  • The emergency leave must be for an employee to quarantine due to exposure to or symptoms of coronavirus, to care for an at-risk family member who is quarantined due to exposure to or symptoms of coronavirus, or care for a child if the child’s school is closed or a child-care provided is unavailable due to the virus.
  • The first ten (10) days of the leave may be unpaid (though the employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave), but the rest of the leave must be paid as follows: two (2) weeks of fully paid leave, and the remaining leave paid at two-thirds (2/3) the employee’s usual pay.
  • Paid leave shall not exceed $200 per day and $10,000 in the aggregate.
  • While employees taking this leave have the right to be reinstated in a position with equivalent pay and benefits, employers with fewer than 25 employees do not have to reinstate an employee if the position held by the employee when the leave commenced does not exist due to economic conditions or changes of operation that were caused by the public health emergency.
  • Employees who are emergency responders or who work for health care providers may not be eligible for emergency FMLA.
  • Employers with less than 50 employees can be exempted from the Act’s requirements when the imposition of such requirements would jeopardize the viability of the business as a going concern.

EMERGENCY PAID SICK LEAVE

The Act also allows for paid sick leave for employees (the “Emergency Paid Sick Leave Act”) who are unable to work due to: 

  1. A governmental quarantine or isolation order related to COVID-19;
  2. Advice from a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee experiencing symptoms of coronavirus and seeking a medical diagnosis;
  4. A need to care for or assist an individual who is subject to a governmental quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  5. A need to care for a child whose school or place of childcare is closed or unavailable due to coronavirus.

Other highlights of the Emergency Paid Sick Leave Act include the following:

  • Employers with fewer than 500 employees are required to provide up to 80 hours of paid sick leave for full time employees.  Part-time employees can receive an amount equal to the to the number of hours the employee works on average over a two-week period. 
  • Employers may not require that employees use other paid leave time prior to using emergency paid sick time. 
  • Employers may not require employees who request paid sick leave to find a replacement to cover for their scheduled hours as a condition to grant the request.
  • Sick time will not carry over after 2020.
  • As with emergency FMLA, employers of health care providers and emergency responders may elect to exclude such employees from the application of the paid sick leave; and employers with less than 50 employees can be exempted from the Act’s requirements.
  • This section of the Act makes it unlawful for an employer to discharge, discipline, or in any other manner discriminate against any employee (1) who takes leave in accordance with this Act, or (2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding. 
  • An employer who fails to provide sick leave as required under the Act shall (1) be considered to have failed to pay minimum wages in violation of section 6 of the Fair Labor Standards Act of 1938 and (2) be subject to the penalties described thereunder with respect to such violation, including liquidated (double) damages for willful violations.
  • As with other labor law posters, employers will be required to post notice of the Emergency Paid Sick Leave Act (to be provided by the Secretary of Labor) in a conspicuous place on the employer’s premises within seven (7) days from enactment.

TAX CREDITS

Employers who pay employees for emergency FMLA leave or sick leave under the Act are entitled to refundable tax credit taken against the employer’s share of certain employment taxes. The credits are limited up to $200 per day for up to 10 days for each employee who takes paid sick leave, but if the sick leave was for the employee’s own covered quarantine or isolation or for the time for the employee to receive his or her own diagnosis, the credit is limited to up to $511 per day. 

CONCLUSION 

This time of crisis requires everyone to be flexible – employers and employees – and employers must definitely update their time off and sickness policies to reflect the  changes imposed by the Act.  Employers who are able to allow employees to work from home and remain productive, should do so.  Employees who cannot work remotely and who do not qualify for emergency FMLA or sick leave should continue to work for as long as local ordinances do not require sheltering in place and so long as the employer has work for the employee.  The bigger issue, and one which Congress may next have to address, is the slowing down of commerce and the lack of work in many sectors of the business community.  More on that to follow as the matter winds its way through the halls of government.

As always, please stay safe and take care of yourselves and your families.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower – Suite 135

Boca Raton, Florida 33431

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

[Bio] [V-card] [Directions]

eml@assoulineberlowe.com

www.assoulineberlowe.com


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


Miami • Ft. Lauderdale • Boca Raton 

Leave a comment

Filed under Labor & Employment

FL SMALL BUSINESSES (100 employees or less) BRIDGE LOANS – Gov. DeSantis Jump Starts Emergency Short Term No Interest Loans

Florida disaster loan program with Florida Seal (00286185xA4579)

COVID-19 and Florida’s Small Business Emergency Bridge Loan Program

Available until May 8, 2020 to small businesses established before March 9, 2020, and limited to only those businesses having between 2 to 100 employees and maintaining its principal place in Florida, businesses that have suffered economic loss can apply to the State of Florida for a one-year short-term, interest-free loan for working capital. The loans bridge the gap until sufficient profits from normalized business operations, payments from insurance claims, or federal disaster assistance are received. The Program has helped more than 4,750 small businesses statewide to receive more than $157.5 million in assistance

The loans are for up to $50,000; but in special cases, may be up to $100,000.

Although interest free in the first-year, any unpaid balance thereafter is subject to a 12% per annum interest rate; and any default is subject to normal collection processes.

Below is the official Press Release from Florida’s Department of Economic Opportunity

Governor Ron DeSantis Activates Emergency Bridge Loan Program for Small Businesses Impacted by COVID-19

Mar 16, 2020

Tallahassee, Fla. – Today, Governor Ron DeSantis activated the Florida Small Business Emergency Bridge Loan Program to support small businesses impacted by COVID-19. The bridge loan program, managed by the Florida Department of Economic Opportunity (DEO), will provide short-term, interest-free loans to small businesses that experienced economic injury from COVID-19. The application period opens tomorrow, March 17, 2020 and runs through May 8, 2020.

“As we mitigate against the spread of COVID-19, the health, safety and well-being of Floridians comes first,” said Governor DeSantis. “I understand the harm mitigation strategies will have on small businesses throughout our state. By activating the Florida Small Business Emergency Bridge Loan, we are providing the opportunity for Florida’s small businesses to receive cash immediately to ensure they can lessen the impacts felt as a result of COVID-19.”

DEO will administer the Florida Small Business Emergency Bridge Loan Program in partnership with the Florida SBDC Network and Florida First Capital Finance Corporation to provide cash flow to businesses economically impacted by COVID-19. The short-term, interest-free loans help bridge the gap between the time the economic impact occurred and when a business secures other financial resources, including payment of insurance claims or longer-term Small Business Administration (SBA) loans. Up to $50 million has been allocated for the program.

“Governor DeSantis has been a true leader in the fight to prevent the spread of COVID-19 and has prioritized the safety of all Floridians,” said Florida Department of Economic Opportunity Executive Director, Ken Lawson. “The Florida Small Business Emergency Bridge Loan will help Florida’s small businesses get through this unsettling time. We appreciate the Governor’s efforts to keep Florida’s small businesses top of mind and our partners at the Florida SBDC Network and Florida First Capital Finance Corporation to help them recover.”

Small business owners with two to 100 employees located in Florida affected by COVID-19 can apply for short-term loans up to $50,000. These loans are interest-free for up to one year and are designed to bridge the gap to either federal SBA loans or commercially available loans. DEO will work with every borrower to ensure that repayment of the loan isn’t an overwhelming burden. To be eligible, a business must have been established prior to March 9, 2020 and demonstrate economic impacts as a result of COVID-19.

“Mitigating the spread of COVID-19 in Florida must be our number one priority,” said Florida SBDC Network CEO, Mike Myhre. “The Florida SBDC Network stands ready to assist Governor DeSantis and the Florida Department of Economic Opportunity to help small businesses recover as a result of the impacts of COVID-19.”

“We are ready to assist the Governor and state of Florida to deliver this vital assistance to the small business community we serve, as we have 23 times since 1992,” said Florida First Capital Finance Corporation President and CEO, Todd Kocourek.

DEO is currently surveying businesses throughout the state of Florida who have been impacted by COVID-19. Businesses and non-profits can access the Business Damage Assessment survey at FloridaDisaster.BIZ Select “COVID-19” from the drop-down menu on the survey page. Response to the Business Damage Assessment survey is not an application for assistance. Businesses interested in the bridge loan program must fill out a bridge loan application.

For more information on the program, visit www.floridadisasterloan.org. For questions regarding the Emergency Bridge Loan Program, contact the Florida Small Business Development Center Network at 866-737-7232 or email Disaster@FloridaSBDC.org. The phone line will be answered during regular business hours; all voice mails and emails will be responded to within 24 hours.

Details on the Loan Program were also set forth on the www.floridadisasterloan.org web page.

Details from the web page follow:

The Florida Small Business Emergency Bridge Loan Program is currently available to small business owners located in all Florida counties statewide that experienced economic damage as a result of COVID-19.

These short-term, interest-free working capital loans are intended to “bridge the gap” between the time a major catastrophe hits and when a business has secured longer term recovery resources, such as sufficient profits from a revived business, receipt of payments on insurance claims or federal disaster assistance.

The Florida Small Business Emergency Bridge Loan Program is not designed to be the primary source of assistance to affected small businesses, which is why eligibility is linked pursuit to other financial sources.  Note: Loans made under this program are short-term debt loans made by the state of Florida using public funds – they are not grants. Florida Small Business Emergency Bridge Loans require repayment by the approved applicant from longer term financial resources.

Loan Details
      • Designated Disaster Areas: All Florida counties statewide per Executive Order 20-52.
      • Qualified Applicant: Applications will be accepted by qualified for-profit, privately held small businesses that maintain a place of business in the state of Florida. All qualified applicants must have been established prior to March 9, 2020, and suffered economic injury as a result of the designated disaster. Qualified small business applicants must be an employer business with 2 to 100 employees.
      • Amount: Up to $50,000 per eligible small business.  Loans of up to $100,000 may be made in special cases as warranted by the need of the eligible small business.
      • Term: 1 year.
      • Limitation: Only one loan may be made per eligible business. All previous bridge loans received MUST be paid in full.
      • Interest Rate: Loans will be interest-free for the loan term (1 year). The Interest rate will be 12% per annum on the unpaid balance thereafter, until the loan balance is repaid in full.  Loan default is subject to a normal commercial collection process.
      • Application Period: Applications will be accepted by qualified Florida small businesses under this program through May 8, 2020, contingent on the availability of funds.
Get Started
  1. Review eligibility requirements and loan process.
  2. Download, complete and sign the application form.
  3. Gather required support documentation.
  4. To submit completed applications and required documents, send by mail or courier to: Florida SBDC Network Headquarters, C/O Florida Emergency Bridge Loan Process, 220 West Garden Street, Suite 301 Pensacola, Florida 32502.  Applicants may also submit applications and required documents via email to Disaster@FloridaSBDC.org or by fax to (850) 696-2693.
  5. For assistance in completing the application, contact your local Florida Small Business Development Center (SBDC) office. To locate your local Florida SBDC visit www.FloridaSBDC.org/locations or contact us toll-free (866) 737-7232
Contact Information

For questions regarding the Emergency Bridge Loan Program, please contact the Florida Small Business Development Center (SBDC) Network Headquarters. Email: Disaster@FloridaSBDC.org.  Phone toll-free: (866) 737-7232.

About the Emergency Bridge Loan Program
The Florida Small Business Emergency Bridge Loan Program was first activated following Hurricane Andrew in 1992. It has been activated 26 additional times following disasters and has helped more than 4,750 small businesses statewide to receive more than $157.5 million in assistance.
Carl H. Perdue, Esq.
Eric N. Assouline, Esq.
ASSOULINE & BERLOWE
The BUSINESS LAW Firm
Miami – Ft. Lauderdale – Boca Raton
Main Office: Miami, Florida
Telephone: 305-567-5576

Leave a comment

Filed under Business Litigation, Corporate Law, Uncategorized

STAY THE COURSE – Employers on Edge with Labor and Employment Related COVID-19 Concerns

Litigation - Assouline & Berlowe

SOUTH FLORIDA – First and foremost, we at Assouline & Berlowe hope this note finds you and your family, friends, employees and others safe and well.   

We have been hearing from many of our clients and colleagues with questions about the impact of the coronavirus on their businesses – such as: allowing employees to work from home; what to do for those employees who cannot work from home; whether such employees can/should/must be paid for their absences; etc. The questions are wide-ranging and require advice that is a mix of the legal and the practical.

 As most of you may have heard, Congress is currently poised to pass federal legislation that the president is intent to sign into law that will address some of these employment-related issues, including paid leave to employees (along with a corresponding tax credit to the employer), expanded rights under the Family and Medical Leave Act and enhanced unemployment benefits. 

Once the law is enacted, we will follow up this blast with specific details (the House version of the bill – “The Families First Coronavirus Response Act” – has yet to have been voted on by the Senate).

In the meantime, you may have specific issues unique to your business that the law may not address, that may be addressed by other laws or that you may not even know are covered by any law.  Regardless of the nature of the inquiry, we are here to help as best we can, so please feel free to reach out.

Although these are uncertain times, if we each “stay the course” – be safe and smart and look out for ourselves and each other, we will get through this.    

In the meantime, you may have specific issues unique to your business that the law may not address, that may be addressed by other laws or that you may not even know are covered by any law.  Regardless of the nature of the inquiry, we are here to help as best we can, so please feel free to reach out.

Ellen M. Leibovitch, Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A., 2300 Glades Road, East Tower – Suite 135, Boca Raton, Florida 33431 Main: 561-361-6566
Direct: 561-948-2479

 

 

 

Leave a comment

Filed under Uncategorized