Category Archives: commercial litigation

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

17342496_1208689185895819_5590382985365719749_n.jpg

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

Leave a comment

Filed under Arbitration, Business Litigation, commercial litigation, Intellectual Property, International, Uncategorized

Protect Your Tech: Florida Bar CLE Edition

Chnm5lrWkAITLBQ

 

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.

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

http://www.assoulineberlowe.com/

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

Miami • Ft. Lauderdale • Boca Raton

Leave a comment

Filed under Business Litigation, commercial litigation, Copyright, Florida Bar, Intellectual Property, International Arbitration, IP Litigation, Patent Prosecution

Internal Investigations

20150713_173521Our corporate clients find the need to perform internal investigations.  The Firm’s attorneys pull their respective industry related experience to conduct such internal investigations and defend corporations and employees in complex investigatory and litigation matters.

In the current economic climate, corporate scrutiny is at an all-time high.  The public and private sectors find themselves subject to federal, state, and local agency investigation.  Corporate conduct, compliance and ethics have become an issue increasingly raised by private plaintiffs. As a result, our corporate clients see significant compliance related obstacles to navigate.

We have found that our corporate clients can be best protected from such scrutiny by understanding all the facts surrounding the allegations at hand. When the facts indicate a violation of policy, law, ethics, or other measure of scrutinization, the client must respond rapidly and measurably with remediation, employee discipline, and where necessary contacting appropriate governing agencies.

Corporate internal investigations are protected by the attorney-client privilege and can be beneficial for a number of reasons.  A well designed internal investigation can:

  • Identify key facts so that management and/or the board can make a fully informed decision as to how best to proceed;
  • Cease any offending behavior;
  • Prevent future misbehavior;
  • Document the corporation’s response as the facts are learned;
  • Protect management and boards of directors against a charge of being complicit in the misbehavior; and,
  • Establish and create a corporate culture of compliance and openness.

Planning is key to internal investigations.  The plan will address document and data collection and review, witness interviews, analysis of the facts and data, and regular reporting to the client on the investigation.  The attorneys of the Firm are well suited to developing the right plan for our clients’ needs.

For any questions about internal investigations and their legal implications, please call Peter below:

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, Bankruptcy, Commercial Litigation, and Corporate Law

Miami • Ft. Lauderdale • Boca Raton

Leave a comment

Filed under Business Litigation, commercial litigation, Corporate Law, Intellectual Property, Labor & Employment, labor and employment law, Real Estate, Uncategorized

Strategic Considerations for the Bankruptcy Practitioner when Intellectual Property is Involved

20130904_093101-1Assouline & Berlowe Registered Patent Attorney Greg Popowitz will be speaking as part of a panel discussing the interplay between bankruptcy and intellectual property.  The Bankruptcy Section of the Broward Bar Association is hosting the discussion on Wednesday, January 13, 2016 from 12:00-1:30pm.  The lunch is being sponsored by the Bankruptcy Bar Association of the Southern District of Florida (BBA).

To register for the event, click here.  It will be an excellent discussion between bankruptcy attorney John Hutton, patent attorney Allen Bennett, and patent attorney Greg Popowitz.

1 CLE credit is pending.

Date: Tuesday, January 13, 2016

Time: 12:00 – 1:30pm

Location: BCBA Conference Center

Cost:   FREE BCBA Bankruptcy Section Members;

$15 BCBA Member(non-section member)

$25 Non-Member of BCBA

No Charge BCBA Judiciary; Includes Hot Lunch

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

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

http://www.assoulineberlowe.com/

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

Miami • Ft. Lauderdale • Boca Raton

 

Leave a comment

Filed under Bankruptcy, Business Litigation, commercial litigation, Corporate Law, Intellectual Property, IP Litigation, Patent Prosecution, Uncategorized

The Wisdom of Crowds II: SEC’s New Crowd Funding Rules

CrowdfundingAn earlier Blog discussed Florida’s Intrastate Crowd Finance Act; amending the Securities and Investor Protection Act, permitting Florida-based entrepreneurs, commercial and real estate businesses capital formation through web-intermediary Crowdfunding Platforms.

The SEC has now adopted its Jobs Act Title III (Crowdfunding) Rules; expanding Crowdfunding’s reach.  Transactions relying on the new rules would be required to use an SEC-registered intermediary, either a broker-dealer or a funding web-portal.

The SEC seeks public comment on the proposed rule amendments for a 60-day period following their publication in the Federal Register. The new rules and forms become effective 180 days after Federal Register publication.

The recommended rules would, among other things, enable individuals to purchase securities in crowdfunding offerings subject to certain limits, require companies to disclose certain information about their business and securities offering, and create a regulatory framework for intermediaries facilitating those transactions.  More specifically:

  • Permitting a company, in any 12-month, period to raise a maximum aggregate of $1 million through crowdfunding offerings;
  • Permitting individual investors, over any 12-month period, to invest across all crowdfunding offerings an aggregate up to the following:
      • If either their annual income or net worth is less than $100,000, then the greater of $2,000 or 5 percent of the lesser of their annual income or net worth.
    • If both their annual income and net worth are equal to, or more than $100,000, 10 percent of the lesser of their annual income or net worth; and
  • During the 12-month period, the aggregate amount of securities sold to an investor through all crowdfunding offerings may not exceed $100,000.

Under the recommended rules, certain companies not eligible to use the exemption include:

  • non-U.S. companies,
  • Exchange Act reporting companies,
  • certain investment companies,
  • companies subject to disqualification under Regulation Crowdfunding,
  • companies not complying with the Regulation’s annual reporting requirements during the two years immediately preceding the offering statement filing, and
  • companies with no specific business plan, or that indicate  their business plan includes a merger or acquisition with an unidentified company or companies.

Crowdfunding securities cannot be resold for one year. Securities would not count towards the threshold requiring a company to register its securities under Exchange Act Section 12(g) if the company is current in its annual reporting obligations, retains the services of a registered transfer agent, and has less than $25 million in total assets as of the end of its most recently completed fiscal year.

Companies relying on the recommended rules must file with the Commission certain disclosure information, the intermediary, and the investors. Additionally, in an annual report to the SEC companies must disclose:

  • The securities price or the method for determining price, the target offering amount, the deadline to reach the target offering amount, and whether the company will accept investments in excess of the target offering amount;
  • A discussion of the company’s financial condition;
  • Company financial statements that, depending on the amount offered and sold during a 12-month period, are accompanied by information from the company’s tax returns, reviewed by an independent public accountant, or audited by an independent auditor.
    • A company offering more than $500,000 (but not more than $1 million of securities relying on these rules for the first time) would be permitted to provide reviewed rather than audited financial statements, unless company financial statements are available that have been audited by an independent auditor;
  • The business’ description and the use of proceeds;
  • Information about officers and directors and of owners of 20% or more of the company; and
  • Certain related-party transactions.

Intermediary Crowdfunding Platforms would be SEC registered as Funding Portals and be members of a national securities association (currently, FINRA). They would be prohibited from, among other things,

  • offering investment advice or making recommendations;
  • soliciting purchases, sales, or offers to buy securities;
  • compensating promoters and other persons for solicitations or based on the sale of securities; and
  • holding, possessing, or handling investor funds or securities, Crowdfunding Platforms.

The rules would require Intermediaries to, among other things:

  • Provide investors with educational materials explaining, among other things, the platform’s investing process; types of securities offered; information a company is required to provide investors; resale restrictions; and investment limits;
  • Take certain measures to reduce fraud risk, including having a reasonable basis for believing
    • that the company complies with Regulation Crowdfunding, and
    • that the company has established means to keep accurate records of securities holders;
  • Make available to the public (on its platform throughout the offering period and for a minimum of 21 days before any security may be sold in the offering)  the company’s disclosure information;
  • Provide communication channels on the platform permitting discussions about offerings;
  • Provide investors with disclosure the intermediary’s compensation;
  • Accept an investment commitment from an investor only after that investor has opened an account;
  • Have a reasonable basis for believing an investor complies with the investment limitations;
  • Provide investors notices once they have made investment commitments and confirmations at or before completion of a transaction;
  • Comply with maintenance and transmission of funds requirements; and
  • Comply with completion, cancellation, and reconfirmation of offerings requirements.

Intermediaries would also would be prohibited from engaging in certain activities, such as:

  • Providing platform access to companies that they have a reasonable basis for believing have the potential for fraud or have other investor protection concerns;
  • Having a financial interest in a company offering or selling securities on its platform unless the intermediary receives the financial interest as compensation for the services, subject to certain conditions; and
  • Compensating any person for providing the intermediary with personally identifiable information of any investor or potential investor.

With its October 30th announcement, SEC Chair Mary Jo White said: “There is a great deal of enthusiasm in the marketplace for crowdfunding, and I believe these rules and proposed amendments provide smaller companies with innovative ways to raise capital and give investors the protections they need.”

For more information on crowd funding matters, 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/

Leave a comment

Filed under Business Litigation, commercial litigation, Intellectual Property, IP Litigation, Real Estate, venture capital

Is Your Data Security Program Lost in the Weeds?

Assouline & Berlowe

“I.R.S. Adds New Safeguards to Thwart Identity Theft and Fraud”

 “Federal Data Compromised at OPM and Interior; Could Affect 4 Million People”

 “North Shore (University Hospital) Warns About 18,000 Patients of Potential Data Breach”

 “Massive Data Breach Affects Hundreds of Miami-Dade County”

As you check your incoming morning email; malware surreptitiously checks your every keystroke and monitors your cyber movements. At your doctor’s office you provided enumerable consent and other extremely personal and confidential information forms; then, within earshot of waiting patients, the receptionist announces your social security number to a colleague. You buy a new condo, providing the Condo Association Board an approval application with your family’s personal and financial history; now your neighbors “know your business!”

The headlines are real; the scenarios occur every day. Scenarios endemic to the hyperbolic expansion of technological innovation, the public’s enchantment and dependence on B2C and social media, and the progressively steep upward trend in information creation and cyber monitoring. Information (“Data”) creates Knowledge; and Knowledge is Power! In the era of “Big Data,” confidential personal and proprietary business Data, mishandled or acquired without authorization by third parties, may have disastrous consequences to the Data Owner.

“In the day,” businesses focused Document (Record) Retention Policies and Programs. Internally-focused initiatives to identify proprietary or sensitive documented information required for possible future use (e.g., government regulations, tax audits); that may be needed to respond to customer, client, or other third-party complaints or litigation (e.g., contracts and collateral documents); and for general historical or other purposes (e.g., corporate or business records). Today, with Information Technology’s potentially illegitimate intrusion in personal privacy, these initiatives must also include externally-focused component to protect those privacy interests.

A company (or other Data Custodian with legitimately acquired Data Owner information) should establish a Data Breach Security Plan with policies and practices for the handling of sensitive Data Owner information. The Plan identifies and “ring-fences” sensitive Data Owner information; sets parameters for limited or “need-to-know access;” identifies potential live and IT systems Data Breach threats; and establishes a Data Breach Response Procedure to adequately notify a Data Owner where his or her information has been compromised.

Florida, along with a number of states, however, have recently begun to actively legislate and establish statutory schemes. Florida’s Information Protection Act of 2014 (“Security of Confidential Information) requires businesses, and government, to take “reasonable measures to protect and secure personal information.” If a Florida business collects personal information, it is now required to establish and maintain a Data Security Program. Once the business, or government entity, acquires personally identifiable information, it is obliged to safeguard the information; and, where appropriate, have a prescribed plan for the information’s destruction or return.  Specified Data includes:

  • social security number;
  • driver’s license or identification card number, passport number, military identification number, or other similar personal identifier issued on a government document used to verify identity;
  • financial account number or credit or debit card number, in combination with any required security code, access code, or password that is necessary to permit access to an individual’s financial account;
  • financial account number or credit or debit card number, in combination with any required security code, access code, or password that is necessary  to permit access to an individual’s financial account;
  • information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; or
  • health insurance policy number or subscriber identification number as well as any unique identifier used by a health insurer to identify that person.

Under the Statute, a Florida business or other “covered entity” ” must notify the Attorney General, in writing, no later than 30 days after a Data Breach or possible Data Breach. That is “any breach of security affecting 500 or more individuals in this state.” The notice must include:

When a Data Breach occurs; that is where there is “unauthorized access of data in electronic form containing personal information.” More broadly, when specific third-party “sensitive, protected, or confidential information has potentially, been viewed, stolen, or used by an individual not so authorized.” For example, where a physician’s laptop is lost or stolen; or where a company IT system has been “hacked.” Parenthetically, insurance companies are now offering Data Breach Insurance.

  1. A synopsis of the events surrounding the breach
  2. The number of individuals in this state who were or potentially have been affected by the breach
  3. Any services related to the breach being offered or scheduled to be offered, without charge, by the covered entity to individuals, and instructions as to how to use such services
  4. A copy of the notice to the individuals affected by the breach or an explanation of the other actions taken to notify the individuals affected by the breach
  5. The name, address, telephone number, and e-mail address of the employee or agent of the covered entity from whom additional information may be obtained about the breach

The Attorney General may also request additional information including: (a) a police report, incident report, or computer forensics report; (b) a copy of the policies in place regarding breaches; and (c) steps that have been taken to rectify the breach.

Although the Statute does not allow a private right of legal action, a Data breach is considered “deceptive trade practice.” Within the jurisdiction of the Department of Legal Affairs, violations are subject to injunctive relief and the following civil penalties: for failure to notify Data Owners:

  1. In the amount of $1,000 for each day up to the first 30 days following any violation and, thereafter, $50,000 for each subsequent 30-day period or portion thereof for up to 180 days; and
  2. If the violation continues for more than 180 days, in an amount not to exceed $500,000.

The civil penalty assessed is for each breach, not for each individual affected by the breach.

Data Security and Data Privacy should be a major concern to individuals and business alike. The law in this area is evolving. It has become an important focus of business law practice.

For more information on Data Security Programs matters, 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/

 

Leave a comment

Filed under Business Litigation, commercial litigation, Corporate Law, Florida Bar, Intellectual Property, Labor & Employment, labor and employment law

Is Your Data Security Program Lost in the Weeds?

Assouline & Berlowe

“I.R.S. Adds New Safeguards to Thwart Identity Theft and Fraud”

 “Federal Data Compromised at OPM and Interior; Could Affect 4 Million People”

 “North Shore (University Hospital) Warns About 18,000 Patients of Potential Data Breach”

 “Massive Data Breach Affects Hundreds of Miami-Dade County”

As you check your incoming morning email; malware surreptitiously checks your every keystroke and monitors your cyber movements. At your doctor’s office you provided enumerable consent and other extremely personal and confidential information forms; then, within earshot of waiting patients, the receptionist announces your social security number to a colleague. You buy a new condo, providing the Condo Association Board an approval application with your family’s personal and financial history; now your neighbors “know your business!”

The headlines are real; the scenarios occur every day. Scenarios endemic to the hyperbolic expansion of technological innovation, the public’s enchantment and dependence on B2C and social media, and the progressively steep upward trend in information creation and cyber monitoring. Information (“Data”) creates Knowledge; and Knowledge is Power! In the era of “Big Data,” confidential personal and proprietary business Data, mishandled or acquired without authorization by third parties, may have disastrous consequences to the Data Owner.

“In the day,” businesses focused Document (Record) Retention Policies and Programs. Internally-focused initiatives to identify proprietary or sensitive documented information required for possible future use (e.g., government regulations, tax audits); that may be needed to respond to customer, client, or other third-party complaints or litigation (e.g., contracts and collateral documents); and for general historical or other purposes (e.g., corporate or business records). Today, with Information Technology’s potentially illegitimate intrusion in personal privacy, these initiatives must also include externally-focused component to protect those privacy interests.

A company (or other Data Custodian with legitimately acquired Data Owner information) should establish a Data Breach Security Plan with policies and practices for the handling of sensitive Data Owner information. The Plan identifies and “ring-fences” sensitive Data Owner information; sets parameters for limited or “need-to-know access;” identifies potential live and IT systems Data Breach threats; and establishes a Data Breach Response Procedure to adequately notify a Data Owner where his or her information has been compromised.

Florida, along with a number of states, however, have recently begun to actively legislate and establish statutory schemes. Florida’s Information Protection Act of 2014 (“Security of Confidential Information) requires businesses, and government, to take “reasonable measures to protect and secure personal information.” If a Florida business collects personal information, it is now required to establish and maintain a Data Security Program. Once the business, or government entity, acquires personally identifiable information, it is obliged to safeguard the information; and, where appropriate, have a prescribed plan for the information’s destruction or return.  Specified Data includes:

  • social security number;
  • driver’s license or identification card number, passport number, military identification number, or other similar personal identifier issued on a government document used to verify identity;
  • financial account number or credit or debit card number, in combination with any required security code, access code, or password that is necessary to permit access to an individual’s financial account;
  • financial account number or credit or debit card number, in combination with any required security code, access code, or password that is necessary  to permit access to an individual’s financial account;
  • information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; or
  • health insurance policy number or subscriber identification number as well as any unique identifier used by a health insurer to identify that person.

Under the Statute, a Florida business or other “covered entity” ” must notify the Attorney General, in writing, no later than 30 days after a Data Breach or possible Data Breach. That is “any breach of security affecting 500 or more individuals in this state.” The notice must include:

When a Data Breach occurs; that is where there is “unauthorized access of data in electronic form containing personal information.” More broadly, when specific third-party “sensitive, protected, or confidential information has potentially, been viewed, stolen, or used by an individual not so authorized.” For example, where a physician’s laptop is lost or stolen; or where a company IT system has been “hacked.” Parenthetically, insurance companies are now offering Data Breach Insurance.

  1. A synopsis of the events surrounding the breach
  2. The number of individuals in this state who were or potentially have been affected by the breach
  3. Any services related to the breach being offered or scheduled to be offered, without charge, by the covered entity to individuals, and instructions as to how to use such services
  4. A copy of the notice to the individuals affected by the breach or an explanation of the other actions taken to notify the individuals affected by the breach
  5. The name, address, telephone number, and e-mail address of the employee or agent of the covered entity from whom additional information may be obtained about the breach

The Attorney General may also request additional information including: (a) a police report, incident report, or computer forensics report; (b) a copy of the policies in place regarding breaches; and (c) steps that have been taken to rectify the breach.

Although the Statute does not allow a private right of legal action, a Data breach is considered “deceptive trade practice.” Within the jurisdiction of the Department of Legal Affairs, violations are subject to injunctive relief and the following civil penalties: for failure to notify Data Owners:

  1. In the amount of $1,000 for each day up to the first 30 days following any violation and, thereafter, $50,000 for each subsequent 30-day period or portion thereof for up to 180 days; and
  2. If the violation continues for more than 180 days, in an amount not to exceed $500,000.

The civil penalty assessed is for each breach, not for each individual affected by the breach.

Data Security and Data Privacy should be a major concern to individuals and business alike. The law in this area is evolving. It has become an important focus of business law practice.

For more information on Data Security Programs matters, 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/

Leave a comment

Filed under Business Litigation, commercial litigation, Florida Bar, Intellectual Property, Labor & Employment