Category Archives: Business Litigation

ASU CARES – Reading to the Kids – A Great Way to Give Back and to be Inspired


Arizona State University alumni volunteers pictured, in back row from Right to Left: Stephanie Silverman House, of Goodman Jewish Family Services; Eric N. Assouline, Esq., of Assouline & Berlowe, P.A.; Gregory Haile, Esq., General Counsel and Vice President of Public Affairs, at Broward College; and, Chae Haile, President and Grant Writer at Funded

On Friday, March 2, 2018, Litigation Partner Eric Assouline, of Assouline & Berlowe, through his alumni’s program ASU Cares, and Arizona State University, had the great pleasure of reading Dr. Seuss books to a kindergarten class at Jack & Jill Children’s Center, in Fort Lauderdale.

I have driven past Jack & Jill for years and never knew about the magic that is going on inside.

To start, every Friday, the first thing that the kids do is of course, say the pledge of allegiance.  Very nice.  Then, God Bless America.  Very nice.  I like that.

Then, the fun starts, time to turn up the music and start DANCING!!!

Dancing at Jack & Jill

What a better way to start off a Friday, than dancing!  It puts everyone in such a great mood!

Then the four volunteers from Arizona State University each started reading Dr. Seuss books to the kids.  The kids seemed to really like having guests in their classrooms reading to them.  It is was so nice to be around all these beautiful children.  Being surrounded by innocence reminds us how precious our children are, especially at this fragile time in our Broward County community still reeling from recent tragic events.


Eric N. Assouline reading “Oh the Places You’ll Go” and getting a good laugh at the line “Scare you Right out of Your Pants!”

We all took a tour of the facilities and saw their playground, vegetable garden (that they use to make meals at the facility), and parent media center to help parents continue to improve their financial positions.

What an eye opening experience.  It was a truly great way to start the end of the week.

Thank you Arizona State University Alumni Association for making this happen, Jack & Jill Children’s Center for inviting us into your wonderful and impactful facility, and Happy 114th Birthday Dr. Seuss!

Eric N. Assouline, Esq.

Litigation Partner


213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Intellectual PropertyLabor & EmploymentCreditors’ Rights & BankruptcyBusiness LitigationCorporate & FinanceReal EstateInternational Law

Miami • Ft. Lauderdale • Boca Raton



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Employment Law 101: Critical Issues to Know

Assouline Berlowe Employment

Whether you are an employer or an employee, you form a part of the workforce. Therefore, you should understand some laws and rules applicable to different employment situations.

First, as an employee without an employment contract, you should know that you can be fired for any reason at all, so long as the reason is not discriminatory or retaliatory. Discrimination does not mean you were simply treated unfairly, or differently than others. A discrimination claim arises if you were treated differently because of your age, race, sex, disability, national origin, or other protected class.  In short, you cannot be fired simply because you are older, African-American, a woman, or disabled. However, you can be fired if your boss believes you are performing poorly, even if you disagree.

You also cannot be fired for retaliation, which occurs when you suffer an adverse employment action – such as termination, demotion, suspension, etc. – as a result of complaining about a violation of the law. Therefore, if you complain about something that is not a violation of the law and you are fired, you are not protected. If you complain about your boss being rude, you can be fired; but if you complain your boss is stealing money, that could rise to retaliation. Unless you have been discriminated or retaliated against, you do not have a claim for “wrongful termination” and, in fact, there is really no such thing as wrongful termination because Florida is an at-will state. You can quit or be fired for any reason or no reason at all.

Furthermore, if you are fired, you do not have to be given a letter of termination, you do not have to be given an explanation, and you are not entitled to severance. You may be entitled to unemployment compensation unless you have committed “misconduct connected with your work.” This is a fairly high standard; but some actions that are considered misconduct include excessive absenteeism, insubordination, not following employer’s rules, etc.

Also, if you quit your job because you are working for a jerk who treats you badly, you cannot claim you were harassed and think you will prevail in a lawsuit. Harassment has to be based on you being a protected status (age, race, gender, national origin), so being berated or treated badly is not harassment; and if you quit – unless you are forced to do so because your employer has made your life miserable – you cannot collect unemployment.

Now, let’s turn to employers. Employers who are covered by the Fair Labor Standards Act must comply with the overtime, minimum wage and child labor laws. Non-exempt employees must be paid overtime and must keep track of all hours worked per week. But what does this mean – exempt or non-exempt from what? An exempt employee is not entitled to be paid overtime, such as a partner at a law firm. Conversely, a non-exempt employee, like a paralegal, must be paid for working over 40 hours in a work week.

So how do you know if your employee is exempt? Well, this will depend on what the employee does, not their title. For example, if you employ an “office manager” who does not actually manage people or have the ability to exercise independent judgement and discretion, that person may not be exempt. Also, keep in mind that paying an employee a salary does not mean that the employee is non-exempt or not entitled to overtime. Non-exempt employees must be paid overtime regardless of the fact that they are paid a salary or not.

Many employers believe that their business does not have enough employees to be covered by the FLSA, but this could not be further from the truth. The FLSA does not contain a “minimum number of employees” requirement. However, the act does require gross revenues of $500,000 and the element of interstate commerce. Therefore, except for very small businesses and those specifically exempted from the FLSA, your business may well be subject to the FLSA’s requirements.

Many private employers also believe that they can ask an employee to waive their right to be paid overtime and that the employee can agree to do so. This is wrong. The right to overtime cannot be waived under any circumstances. A non-exempt employee MUST be paid for all hours worked and, if that employee works over 40 hours in a work week, she must be paid overtime. Remember that the hours worked are measured per week; so if your payroll covers two weeks and the employee works 50 hours in week one and 30 hours in week two, that employee must be paid for 10 hours of overtime for week one.

Finally, a word about independent contractors. Whether you have been hired as an independent contractor or whether you have hired someone to work with you as an independent contractor, you must be certain that a contractor relationship – not an employment relationship – has been established. The key to the inquiry is control. Actually, the IRS has a list of 20 factors which determine if a person should be classified as an independent contractor or an employee, but the level of control is the overriding concern. The reason why it is important to distinguish one from another is that the laws apply differently to independent contractors than to employees.

For example, for independent contractors, no taxes are deducted, the FLSA overtime rules do not apply, discrimination and harassment laws generally are not applicable, and there is no unemployment compensation. If you are hired for a job as an independent contractor or if you hire someone to work for you as one, be certain that a true independent contractor relationship is in place. If you get it wrong, there can be significant tax and wage implications. Make sure you have an independent contractor agreement in place to define duties and pay and define the relationship. Though this may not control, it will help. And, of course, if you have any questions or find yourself in need of advice regarding these topics, please contact a labor and employment attorney.

Please feel free to contact me if you have any questions or comments.

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


1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466


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

Miami • Ft. Lauderdale • Boca Raton


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EMPLOYERS: New Tax Law Makes CONFIDENTIAL Sexual Harassment Settlements NOT DEDUCTIBLE


The new tax law disallows tax-paying entities from taking a deduction for sexual harassment settlements that are subject to non-disclosure or confidentiality agreements.  In other words, if a company wants a confidential settlement, the company has to pay taxes on the settlement, fines and other expenses incurred.  Conversely, the only way such settlements can be written off and not taxed is if they are not confidential and, therefore, discoverable.

The relevant portion of the new law reads as follows:

No deduction shall be allowed under this chapter for – (1) any settlement or payment related to sexual harassment or sexual abuse if such settlement or payment is subject to a nondisclosure agreement, or (2) attorney’s fees related to such settlement or payment.

Under the law as written, no taxpayer (neither the complaining party nor the respondent) can write off the settlement reached in a sexual harassment case if the settlement is confidential.  Previously, the party sued (employer) could write off the settlement amount regardless of the confidential nature of same.  Now, the party paying the settlement cannot deduct the settlement if confidentiality is required.

The idea behind the change was that companies should not be able to keep a settlement confidential (perpetrating a culture where claims of sexual harassment are quietly settled and swept under the rug) and benefit from a tax deduction.  Still, the reality is that most companies will forego the deduction to ensure confidentiality.  Employers are strongly encouraged to seek the advice of employment law and tax counsel to properly document such settlements.

As an aside, note that settlements of claims against members of Congress will not be subject to this provision since the US government is not a taxpayer.

Please feel free to contact me if you have any questions or comments.  Here’s wishing everyone a happy, healthy and prosperous 2018!

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


1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466


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

Miami • Ft. Lauderdale • Boca Raton


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CFTC Brings Bitcoin Related Action

Commodity Futures Trading Commission (CFTC) Files Bitcoin Enforcement Action

On January 18, 2018, the CFTC, with assistance from the CFTC’s Division of Enforcement Virtual Currency Task Force, filed a federal civil enforcement action in the U.S. District Court for the Eastern District of New York against Defendants Patrick K. McDonnell, and CabbageTech, Corporation. d/b/a Coin Drop Markets(CDM), a New York corporation, charging them with fraud and misappropriation in connection with purchases and trading of Bitcoin and Litecoin.

James McDonald, the CFTC’s Director of Enforcement, commented: “This action is among the latest examples of the CFTC’s continuing commitment to act aggressively and assertively to root out fraud and bad actors involved in virtual currencies. As alleged, the Defendants here preyed on customers interested in Bitcoin and Litecoin, promising them the opportunity to get the inside scoop on the next new thing and to benefit from the trading acumen of a supposed expert. In reality, as alleged, customers only bought into the Defendants’ fraudulent scheme. We will continue to work hard to identify and remove bad actors from these markets.”

The Defendants allegedly engaged in a deceptive, fraudulent virtual currency to induce customers to send money and virtual currencies to CDM, purportedly in exchange for real-time virtual currency trading advice and for virtual currency purchasing and trading on behalf of the customers under McDonnell’s direction. The Complaint alleges that the supposed expert, real-time virtual currency advice was never provided, and customers who provided funds to McDonnell and CDM to purchase or trade on their behalf never saw those funds again.

The CFTC Complaint further alleges that to conceal their scheme, Defendants, neither of whom registered with the CFTC, removed their website and social media materials from the Internet and ceased communicating with customers, who lost most if not all their invested funds due to Defendants’ fraud and misappropriation.

The CFTC has issued a Customer Advisory on the Risks of Virtual Currency Trading to inform the public of possible risks associated with investing or speculating in virtual currencies or recently launched Bitcoin futures and options.  The CFTC has also issued several other customer protection Fraud Advisories that provide the warning signs of fraud.

Thank you Carl Purdue for this contribution.

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GREG POPOWITZ – A New Law Partner, Engineering the Firm’s Success


Patent Attorney Greg Popowitz, Litigation Partner Eric Assouline, and Legal Assistants Ana Hesny and Juliana Alvarez all toast to Greg Popowitz’s promotion to Partner at Assouline & Berlowe, P.A.

Being an attorney was never in his long term plans.  Growing up in South Florida, Greg Popowitz helped his father build wood projects around the house.  He also had the opportunity to take a Manufacturing class in junior high school.  Being able to construct (and sometimes deconstruct) projects took him down a path towards engineering.   Greg loved being able to see how things work, whether it was a simple mechanical pencil or changing the rotors on an automobile’s brakes. 

With that in mind, Greg applied to the prestigious Georgia Institute of Technology, in Atlanta, Georgia (or “GT” for short).  Greg started his freshman year of college in 1998 and chose to major in mechanical engineering. 

At Georgia Tech, Greg learned about the complexities of design, manufacturing, and failure analysis, just to name a few.  He also learned how important it was to work in a team environment.  Georgia Tech’s diverse student body afforded Greg the opportunity to work with students across the country and the world.  Greg also learned how to effectively manage his time given the highly technical and aggressive curriculum.  The study skills Greg acquired at Georgia Tech would pay handsome dividends for Greg down the road in law school. 

After graduating from Georgia Tech in 2002, Greg began to work for Visteon Corporation, a former subsidiary of Ford Motor Company.  Greg worked on drive shafts in the driveline systems division, based near the Motor City, Detroit Michigan.  Greg’s first rotation at Visteon started in the plant where he worked as a product engineer on current model designs.  Greg was involved in troubleshooting both design and manufacturing issues, which included Six Sigma principles.  Greg presented his findings to high level executives at Ford Motor Company.  Greg also worked on forward model designs, where he conducted durability tests and helped launch the driveshaft for the 2005 Ford Mustang. 

During his time at Visteon, a colleague received a patent on a new driveshaft that used a “slip in tube” design.  Greg started asking questions about patents and how a patent protects new inventions.  Greg spoke to Visteon’s in-house counsel, who happened to be a registered patent attorney.  For the first time, this sparked Greg’s interest in attending law school in order to become a patent attorney. 

In 2006, Greg applied and was accepted at Nova Southeastern Law School (NSU).  Greg also took and passed the patent bar exam in order to become a registered patent agent.  Greg interned at an Intellectual Property law firm in order to learn the practical sides of patent law. 

While interning, Greg saw firsthand how important a well crafted patent is when challenged in major patent litigation.  At NSU, Greg also had the opportunity to interview both George McGovern and John Anderson, former Presidential candidates.

After graduating from NSU (cum laude) and becoming a registered patent attorney, Greg worked at a large Florida law firm handling complex mortgage related litigation.  While the work was challenging, Greg quickly learned he wanted to focus more of his practice on IP and have more direct access to help clients on the front lines. 

Then, Greg accompanied his wife, Bankruptcy Attorney Ashley Popowitz, to a lunch, where he met Ashley’s friend and colleague, Eric Assouline.  Eric and Greg, who both shared an immense love for cars, immediately hit it off.  Eric wanted to find a way that Greg could add to the already highly talented IP and commercial litigation team at Assouline & Berlowe, P.A.

In 2013, Greg was offered an associate position at the Firm.  Greg’s practice centered on two main practice areas:  patent, trademark, and other related Intellectual Property prosecution matters; and commercial and business litigation matters.  On the IP side, Greg was able to speak to clients from the initial intake to delivering a registered trademark or issued patent.  Greg has seen small businesses grow and become recognized brand names.  Greg has been able to play a small role in helping businesses and entrepreneurs protect their inventions and brands and also create assets in the form of IP.  On the litigation side, Greg has been able to help clients bring a wide array of claims and also assist clients in defending similar claims.  While each case is different, Greg has learned to assess the nature of the case and help the firm’s clients achieve their long term goals.  Greg has also been involved in a handful of appeals involving the firm’s cases, which has allowed him to work closely with Eric Assouline to assist in writing appellate briefs regarding orders and judgments involving our clients. 

In April 2018 Greg will already be with Assouline & Berlowe for five years.  Greg has learned a great deal during his limited time at Assouline & Berlowe and he is surrounded by a wealth of talented attorneys and staff geared towards helping the firm’s clients maximize their results.  

Assouline & Berlowe is honored to promote Greg Popowitz to Partner and we are all excited to see how Greg can continue to engineer his and the firm’s success for years to come. 

Keep up the Good Work Greg!



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


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.


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.


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.


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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