Category Archives: commercial litigation

SEC Chairman’s Remarks at the Securities Regulation Institute


Speaking at Washington, DC, on January 22, 2018, Securities and Exchange Commission Chairman, Jay Clayton spoke about two issues before the Commission: (1) his expectations for market professionals, particularly when dealing with new products or new forms of old products, especially concerning Initial Coin Offerings (“ICO”)and (2) the SEC’s approach to remaining Dodd-Frank rulemaking mandates.

Chairman Clayton said “Market professionals, especially gatekeepers, need to act responsibly and hold themselves to high standards….It is expected that they will bring expertise, judgment, and a healthy dose of skepticism to their work. Said another way, even when the issue presented is narrow, market professionals are relied upon to bring knowledge of the broad legal framework, accounting rules, and the markets to bear…The SEC is undertaking significant efforts to educate the public that unregistered securities investments offered by unregistered promoters, with no securities lawyers or accountants on the scene, are, in a word, dangerous….The SEC is looking closely at the disclosures of public companies that shift their business models to capitalize on the perceived promise of distributed ledger technology and whether the disclosures comply with the securities laws, particularly in the case of an offering.”

As to the remaining Dodd-Frank mandates, the Chairman noted that the Commission is actively working on “ pursuin(g) an agenda that is true to the agency’s mission as viewed through the lens of long-term Main Street investors…(including) the broad dissatisfaction with the current regulatory approach to retail investment advice, which is commonly referred to as the “fiduciary rule.”…Executive compensation rules for both public companies and SEC-regulated entities…e rules are challenging…as a result of the complexity and scope of the existing executive compensation disclosure regime, as well as the nature of the mandates, I believe a serial approach is likely to be most efficient and best serve the SEC’s mission. I am pleased that we recently issued interpretive guidance to help companies comply with the new pay ratio rules.

The Chairman also discussed the interplay of the Securities Laws with the Administrative Procedure Act and the Congressional Review Act and the Court rulings on that subject, He indicated that the Staff is “crafting rules” sensitive to the substantive constraint of those statutes.

Concerning clawbacks related to executive compensation, the Chairman remarked that although several companies have publicized clawback policies, some going beyond what Dodd-Frank requires, few companies have attempted clawback compensation this is one area that will be given rulemaking priority.

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.


1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466


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Need Help Finding Investors? Can I Hire A “Finder? Yes. But, At Your Peril!


We often hear from Start-Up and Emerging Growth Company entrepreneurs about their difficulty in sourcing venture capital. With no, or limited, operating/revenue history, getting funding to move from concept, to prototype, and to commercialization is challenging. And often, without hiring experienced financial and legal counsel, what could be a successful financing deal ends in disappointing failure.

The earlier the business life cycle, the greater capital needs. Family and friends are usually the first source of venture capital. “Angel Investors” (high-net worth individuals) the next tranche; and for more mature companies, “Institutional Investors,” (boutique and corporate Venture Capital and Private Equity firms, Insurance Companies, and the like) investing in the next successive financing rounds. If these sources are unavailable, a frustrated entrepreneur in need of cash sometimes turns to a so-called “Finder;” an individual or firm receiving compensation based on successfully finding potential investors.

Section 3(a)(4)(A) of the federal Securities Act of 1933 defines a “broker” broadly as any person engaged in the business of effecting transactions in securities for the account of others. Although Section 2(a)(1) defines a “Security” in 153 words. Simply, a “Security” is a debt or equity interest or participation in a business or other venture where the interest or participation holder (the investor) relies on the business or venture for his or her profit or loss and not on his or her own efforts.  Under the Securities Act of 1933, the following are some, but not all, activities requiring individual or entity registration:

  • Finding investors for entities issuing securities, even in a “consultant” capacity;
  • Engaging in, or finding investors for, venture capital or “angel” financings, including private placements;
  • Finding buyers and sellers of businesses (i.e., activities relating to mergers and acquisitions where securities are involved);
  • investment advisers and financial consultants;
  • persons that market real-estate investment interests that are securities;
  • persons that act as “placement agents” for private placements of securities;
  • persons that effect securities transactions for the account of others for a fee, even when those other people are friends or family members;
  • finding investors or customers for, making referrals to, or splitting commissions with registered broker-dealers, investment companies or other securities intermediaries;
  • finding investment banking clients for registered broker-dealers;

Under Florida Statute Section 517.12(1), a person who, for compensation, refers; solicits; offers; or negotiates for the purchase or sale of securities is required to register with the State of Florida’s Office of Financial Regulation.
Relying on an unregistered Finder’s “pitch” about a supposed or real list of very well healed contacts sometimes leads to fraud and disappointment. Unregistered Finders may be subject to severe sanctions under State and Federal Securities Laws. Investment contracts between company and investor, having Finder involvement are voidable and subject to Rescission. Those contracts may be cancelled, with the investors getting their money back!

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.


1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466


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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

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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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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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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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