Category Archives: Arbitration

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

Crowdfunding

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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Former U.S. Ambassador Discusses Technology & Miami as Global City

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Assouline & Berlowe Partner Peter E. Berlowe had the privilege of listening to firm friend Former U.S. Ambassador to Singapore Hon. Kirk Wagar speak last week at Pipeline Workspaces. Ambassador Wagar spoke about opportunities in South and Southeast Asia and how Miami can grow in to a truly global city.  In part, Ambassador Wagar discussed how driverless vehicles and related technology will begin to have far reaching implications for worldwide employment and economics over the next five to ten years.  Ambassador Wagar reflected upon the United States as the true world power, in part because of U.S. private business’ continued respect for business formalities and intellectual properties of the other countries in which they invest.  Pictured are Peter E. Berlowe, Hon. Kirk Wagar, and WLRN V.P. of News Tom Hudson.

For more information about the speech or related issues, please contact Mr. Berlowe at:

Peter E. Berlowe, Esq.

ASSOULINE & BERLOWE, P.A.

3250 Mary Street, Suite 100

Miami, Florida 33133

Main:  (305) 567-5576

Fax: (305) 567-9343

Email: PEB@AssoulineBerlowe.com

http://www.AssoulineBerlowe.com/

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

Miami • Ft. Lauderdale • Boca Raton

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Crowdfunding: A New Way to Invest in Florida

Assouline & Berlowe - Business Law Firm - Crowdfunding

How do 4th grade entrepreneurs make their classroom solar-powered?  In today’s day and age they set up a Crowdfunding campaign.  Hoping for $800, the students raised more than $5,000 by Crowdfunding support across America and around the world.

Money is a scare commodity; and it takes effort to have investors part with it. While subjectively attractive to the project sponsor, the business thesis may not be to a potential investor. Some potential investors may not be interested in the particular business or industry sector. Others may have limited funds that are better deployed elsewhere. And yet for others, the potential project may not meet their investment criteria. For example, generally, investors target emerging growth companies over startups and mature over emerging growth companies. That universe of potential investors has been further constrained through federal and state securities regulations that forbid general solicitation of investors and require the sponsor expend substantial, and often prohibitive, transaction costs.

For the entrepreneur taking concept through to IPO, or for a businessperson expanding operations with a merger or acquisition, financing is always an issue; money is a scare commodity. Personal or retirement savings may insufficient; bank loans (with or without personal or other guarantees) could be unavailable; and family, friends, and so-called Angel investors may not be interested or able to provide project support. What is needed is a larger universe of potential financiers….Enter Crowdfunding!

“Crowdfunding is a new and evolving method to raise money using the Internet. Crowdfunding serves as an alternative source of capital to support a wide range of ideas and ventures.  An entity or individual raising funds through crowdfunding typically seeks small individual contributions from a large number of people. “

A crowdfunding campaign generally has a specified target amount for funds to be raised, or goal, and an identified use of those funds. Individuals interested in the crowdfunding campaign—members of the “crowd”—may share information about the project, cause, idea or business with each other and use the information to decide whether or not to fund the campaign based on the collective “wisdom of the crowd.”

The venture life-cycle moves from Concept to Business Plan to Startup to Sales Ramp-up to Emerging Growth Company to Exit (Buyout or IPO). Maturing businesses grow organically or through mergers and acquisitions. Each step in the process requires more capital and capital and transaction costs. The critical factor: adequate financing!

Governor Scott is expected to sign the Florida Intrastate Crowd Finance Act; amending the Florida Securities and Investor Protection Act Effective October 1, 2015, Florida-based entrepreneurs, small business owners, and others can use web-based Crowdfunding platforms as intermediaries for their intra-state funding campaigns. The Act amends Florida’s securities transactions law. A Florida entrepreneur or business person will no longer be limited to soliciting financing support from Florida “accredited” or a high net worth individual. Florida joins a growing list of states allowing the general solicitation of in-state investors through crowdfunding internet platforms.

Florida’s Office of Financial Regulation will administer the Crowdfunding Law. The Office, reporting to the Financial Services Commission, provides oversight for the State’s financial service providers. Its mission is “to protect the citizens of Florida, promote a safe and sound financial marketplace, and contribute to the growth of Florida’s economy with smart, efficient and effective regulation of the financial services industry.” The Agency’s work is divided among the Division of Consumer Finance, Division of Financial Institutions, and Bureau of Financial Investigations.

To ensure compliance with the rules and regulations of the Florida Securities and Investor Protection Act, the Division of Securities and Finance’s, Bureau of Securities Regulation examines securities dealers, investment advisers, their respective offices, and associated persons who conduct securities business in, to or from Florida. The Bureau of Financial Investigations is a criminal justice agency. It is generally responsible for conducting securities and mortgage fraud investigations.

Florida’s Crowdfunding law exempts certain “issuers” (entrepreneurs, business persons, and others) and their intermediaries (Crowdfunding Internet Platforms) from registration requirements relating to the offer and sale of certain securities. Among other things,

a. An issuer must be a for-profit business entity formed under the laws of the State, be registered with the Secretary of State, maintained its principal place of business in the State, and derive its revenue is primarily from operations in State;

b. The securities offering must be made through a registered dealer or intermediary (the Crowdfunding Internet Platform).

c. The issuer must not be company with an undefined business operation, a company that lacks business plan, a company that lacks a stated investment goal for the funds being race, or company that plans to engage in a merger or acquisition with an unspecified business entity.

d. Unless otherwise exempted by certain mitigating factors, the issuer will be disqualified from using the Crowdfunding exemption if a director, officer, person occupying a similar status or performing a similar function, or person holding more than 20% of the shares of the issuer is a so-called “Bad Actor.” That is, that person cannot have been convicted of a felony in the last 15 years or a misdemeanor in the last 5 years of crimes involving registration as a dealer, investment adviser, issuer of securities, or associated person or the application for such registration or involving moral turpitude or fraudulent or dishonest dealing.”

e. The issuer must execute an escrow agreement with the federally insured financial institution authorized to do business in Florida for the deposit of investor funds. Under the Agreement, offering proceeds will be released to the issuer only when the aggregate capital raise from all investors is equal to the target offering amount.

f. Investors can cancel an investment commitment within 3 business days before the offering deadline. This must be stated in the disclosure statement, and the issuer is required to refund to all investors if the target offering amount is not reached by the offering deadline.

g. The issuer must file a written or electronic notice of the offering with the Office of Financial Regulation that includes

i. the intermediary’s website address where the issuer’s securities will be offered;
ii. The target offering amount;
iii. A nonrefundable $200 filing fee.

h. The issuer must provide to investors and the dealer or intermediary, along with a copy to the office at the time the notice is filed, and make available to the potential investors through the dealer or intermediary, a disclosure statement containing certain material information about the issuer, the offering, and the potential risks to purchasers of the securities including a description of the Company’s physical condition.

i. For offerings, in combination with all other offerings of the issuer 12 month period, having target offering amounts of $100,000 or less, the descriptions must include the most recent income tax return filed by the insurer, if any, and a financial statement that must be certified by the principal executive officer of the issuer true and complete in all material respects.

ii. For offerings, in combination with all other offerings of the issuer within the preceding 12 month period, have target offering amounts of more than $100,000, but not more than $500,000, the description must include financial statements prepared in accordance with generally accepted accounting principles and by an independent CPA using professional standards and procedures for such review the standards and procedures established by the office, by rule, for such purpose.

iii. For offerings, in combination with the other offerings and of the issuer within the preceding 12 month period, have target offering amounts of more than $500,000, the description must include audited financial statements prepared in GAAP by an independent CPA and other requirements as the Commission may establish by rule.

Although the Florida Crowdfunding has a strict intrastate limitation, issuers will shortly have the opportunity to make their offerings nationwide. In 2012, Congress enacted the Jumpstart Our Business Startups Act (the “JOBS Act”). The Jobs Act makes it easier for an entrepreneur or company to find investors and raise capital. By easing various securities regulations, it encourages small businesses funding. Securities and Exchange Commission (SEC) has promulgated Rules under Title II (Access to Capital for Job Creators) removing the prohibition on general solicitation or general advertising for securities offerings relying on Rule 506 (considered a “Safe Harbor” for the private offering exemption of Section 4(a)(2) of the Securities Act of 1933) provided that sales are limited to accredited investors and an issuer takes reasonable steps to verify that all purchasers of the securities are accredited investors. The SEC is expected to finalize its November 5, 2013 proposed Title III (Crowdfunding) Rule this October. Until that Rule is finalized and promulgated, nationwide general solicitation is illegal.

For more information on this or other Venture Capital or Private Equity matter, please contact:

Carl H. Perdue, JD, LLM
Senior Counsel and Partner
Business and Finance

The above material is for information purposes only; and is not to be considered legal or financial advice.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main:  (561) 361-6566

Fax: (561) 361-6466

Email: CHP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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

Miami • Ft. Lauderdale • Boca Raton

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Miami partner Daniel E. Vielleville to speak at International Law Section’s ILAT Conference

International Law

The Florida Bar’s International Law Section is holding its annual International Litigation, Arbitration and Transaction (ILAT) Conference  on February 27, 2015.  Miami partner Daniel E. Vielleville, head of our Latin American Practice, will be speaking at the panel titled  “Arbitration in Energy and Infrastructure Disputes”. Mr. Vielleville’s presentation will be focused on developments in mining disputes and will review the impact of environmental regulation and natural resources nationalism in the recent Gold Reserve arbitral award against Venezuela as well as in current disputes such as Pacific Rim v. El Salvador, South American Silver v. Bolivia, Renco v. Peru, and Infinito v. Costa Rica.

The ILAT Conference’s program can accessed at this link:

http://internationallawsection.org/wp-content/uploads/2015/01/ILAT_Conference_Program_01.14.14.pdf

For more information about the conference or international law issues, please contact Mr. Vielleville at:

Daniel E. Vielleville, Esq.

ASSOULINE & BERLOWE, P.A.

3250 Mary Street, Suite 100

Miami, Florida 33133

Main:  (305) 567-5576

Fax: (305) 567-9343

Email: DEV@AssoulineBerlowe.com

http://www.AssoulineBerlowe.com/

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

Miami • Ft. Lauderdale • Boca Raton

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Litigation and War – Managing Expectations

business litigation war tank lawsuit fight

As a career business litigator, I have handled, literally, hundreds of commercial disputes for my clients.  Whether being involved in bet-the-company type litigation, where the stakes and the legal fees are high, or when appearing at Pretrial Conferences for clients in courts of limited jurisdiction, one thing is constant, the unknown.  You don’t know how long it is going to take to resolve the case, you don’t know how much it is going to cost, you don’t know how badly the other side wants to fight, and you don’t know what the Judge is going to think of the merits of your case or the other side’s position.

Litigation is like war on a smaller, more “civilized” scale.  America right now is passively watching in horror as bloody battles rage across the globe.  Fighting for autonomy from Russia is intensifying in southern Ukraine.  A costly civil war that started in Syria is now spilling into war torn Iraq.  Reports of hundreds of thousands of civilians, dying, being forced from their homes, and caught in the cross fire of these conflicts fill the press.

Thousands of Hamas rockets were launched from the Gaza strip into Israeli cities, which were intercepted by the American financed Iron Dome.   It appeared that Israel had their dispute under control. However, reports reveal that what the Israeli intelligence did not know was that its neighbor had dug several miles of interconnected underground tunnels deep into Israel in order to one day, by surprise, surface and inflict bloodshed and devastation on its civilian population.

Civilian casualties are mounting, in nations worldwide, as a result of these conflicts.  When will it end, how many more days, weeks, months, deaths, before it stops.  All . . . unknown.

In litigation, anyone that thinks they can go into battle with an adversary and know what will happen, should take lessons from these large scale military conflicts. Litigation, like war, is unpredictable. No litigant enters into a legal dispute with a guaranty of victory. Just like the conflicts described above, if you sue or are sued, it is unknown how long the fight will last, how much time it will take for your lawyer to prepare, research, study, and execute any strategy or properly respond to a lawsuit. Nor does any litigant know how long the other side is willing to fight for what they believe in.

Besides the adversary, the courts need to move their dockets forward.  There is no “ceasefire” in litigation.  You cannot put your case on hold.  If the parties can settle their dispute, then the case is over.  Otherwise, the battle goes on, and on, until one side or the other either wins, or runs out of money to finance the fight.  I cannot tell you how many times I have heard my clients say that they would rather pay me as their lawyer to fight with the other side than to give in and resolve this dispute with the adversary.  I always remind my client that a resolution of a dispute assures an end to the legal battle, which is never guarantied when the fight goes on.

A good lawyer tries to keep his client out of trouble.  Sometimes, it does not matter what the lawyer does, the client will find themselves in court and they have to deal with the conflict.

The next time a client tells me what they think is going to happen if they go to court, I will remind them of the tunnels that the Israelis, with all of their American technology, did not even know existed right below their feet.  If a country that spends literally billions of dollars a year on its national security and defense, has some of the most sophisticated counter-terrorism systems in the world, does not even know that its hostile neighbor is and has been lurking deep into its land and preparing for wholesale bloodshed, what can my client really know of the intentions and capabilities of another litigant.

The lifeblood of litigation, like war, is the unknown.

For more information about business litigation and strategies contact:

ERIC N. ASSOULINE, ESQ.
Telephone: 954-929-1899

With offices in Miami, Ft. Lauderdale, and Boca Raton

ASSOULINE & BERLOWE, P.A.

http://www.assoulineberlowe.com

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

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