Category Archives: Uncategorized

The Mediator: Perhaps the Most Important Role in Litigation

Eric N. Assouline, Esq. as Mediator

Litigation Partner Eric N. Assouline, Esq. presiding as Mediator on Commercial Dispute in Ft. Lauderdale offices of Assouline & Berlowe

No case in Florida goes to trial before going through mediation.  The reason is clear.  Most cases that are referred to mediation settle.

Does that mean that the litigant obtains justice in mediation, no.  So, what is the point?

The point is that mediation: is a way to unclog the courts of cases that should be settled; allows the parties to somewhat control their destiny by deciding if they want to settle for perhaps a part of what they were originally seeking as relief; is a relatively inexpensive way to have a disinterested third party hear both sides of a case and try to help the parties work their way to a settlement; gives the parties an opportunity to assess their strengths and weaknesses when aired out in a confidential setting; allows parties to speak freely behind closed doors, without risk that something that they say will be used in court; the list goes on and on.

As a civil attorney, I have attended dozens and dozens of mediations.  The case does not always settle at mediation.  But, most do.

I am not a Certified Mediator.  However, I have also acted as a mediator on commercial cases, by special request, over a dozen times.

When I am hired in the role of the mediator I have an exceptionally important job.  Both sides are entrusting me with confidential information I cannot share.  I need to know what to say and what not to say, so as not to breach any confidences.

But more importantly, I need to keep working the parties down so that together we will hopefully reach a point that both sides will reach a point that they are ready to settle.   As I tell my litigation clients, I have handled hundreds of litigation cases, and when a case ends, I am yet to hear “man that was fun, I cannot wait to do that again!”   And I do not expect to hear it.  That is why the role of the Mediator may be the most important role in a litigation case.  He/she tries to put an end to the pain.

Eric N. Assouline, Esq.

Managing Partner, Head of Litigation Department, Litigator, and Mediator (by request)

Assouline & Berlowe, P.A.

Miami – Ft. Lauderdale – Boca Raton

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A Labor (Lawyer) of Love

As a Managing Partner, it is so comforting to know that when a labor issue comes up at the firm, the “go to” person at the firm knows what they are talking about.

Ellen M. Leibovitch is the head of the Labor & Employment Practice Group at Assouline & Berlowe, since she joined the firm over five years ago.

I have know Ellen for 20 years, since we practiced together at at prior firm. Ellen is Board Certified by the Florida Bar in the area of Labor and Employment.

Having Ellen at the firm is true love of our favorite Labor Lawyer.

Thank you Ellen for being you.


Managing Partner

Assouline & Berlowe, P.A.

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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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WATCH What You Ask For—Waiver of Personal Jurisdiction by Seeking Attorneys’ Fees

00229540On Wednesday, December 13, 2017, Florida’s Third District Court of Appeal issued a decision that will have Florida attorneys carefully considering whether to seek attorney’s fees in conjunction with a motion to dismiss for lack of personal jurisdiction.  In TBI Caribbean Company LTD, etc., et al., v. Stafford-Smith, Inc., etc., the Third DCA determined that defendants/appellants waived their jurisdictional objection to personal jurisdiction by seeking attorney’s fees, while simultaneously (and inconsistently) seeking to also dismiss Plaintiff’s complaint.  The TBI case centers around TBI Caribbean Company LTD’s (“TBI Caribbean”) and Jesus Hinojosa’s (“Hinojosa”) appeal from the trial court’s non-final order denying their respective motions to dismiss Plaintiff’s complaint.

The original dispute between the parties concerned a subcontract between Plaintiff and TBI Caribbean and Hinojosa’s personal guarantee of TBI Caribbean’s obligations under the subcontract.  With respect to jurisdictional allegations, Plaintiff’s complaint only stated that the terms of the subcontract defined the proper jurisdiction to be the State Court in Dade County, Florida.

Both TBI Caribbean and Hinojosa moved for dismissal on Plaintiff’s failure to sufficiently allege a basis for personal jurisdiction.  Both motions to dismiss requested attorney’s fees pursuant the subcontract. 

Defendants’ respective motions to dismiss were both denied and defendants appealed. On appeal, the Third District Court of Appeal determined that while in personam jurisdiction could not be established by contractual agreement alone, TBI Caribbean and Hinojosa had inadvertently waived this objection by requesting attorney’s fees.  

By requesting attorney’s fees under the very contract which Defendants denied provided the court with jurisdiction, Defendants’ counsel provided the Third DCA with a more than opportune moment to say “You can’t have your cake and eat it too.”

The question, however, of whether a request for attorney’s fees can ever be made without waiving a personal jurisdiction objection in Florida state courts remains.  The Third DCA’s opinion is just the latest in a small but diverse handful of cases from District Courts of Appeal around the state addressing the question. See e.g., Heineken v. Heineken, 683 So. 2d 194 (Fla. 1st DCA 1996); Dresser v. Dresser, 350 So. 2d 1152 (Fla. 1st DCA 1977); Gustafasson v. Levine, 186 So. 3d 562, 564 (Fla. 4th DCA 2015).

The recent Third DCA opinion marks a break from the First and Fourth DCA cases on the matter. The First and Fourth DCAs determined that a request for fees did not waive a defendant’s personal jurisdiction objection. See id. In coming to its decision, the Third DCA, like the First and the Fourth before it, applied the rule that lack of personal jurisdiction is not waived as a defense so long as it is raised in a party’s first response and the party does not inconsistently seek affirmative relief in the jurisdiction.

The Third DCA differed in its application of the aforementioned rule by finding that the distinction between affirmative relief and other relief is “problematic” and shifting the focus of the analysis to the question of inconsistency. The Third DCA ultimately held that because defendants’ request for attorney’s fees was based on the subcontract, it was inconsistent with the jurisdictional objection. While the Third DCA ultimately distinguished this case from the cases heard by the First and Fourth DCAs on the facts, this new opinion should give Florida attorneys pause when considering whether to request attorney’s fees in a motion to dismiss for lack of personal jurisdiction.

Personal jurisdiction continues to be an important litigation issue that should be given considerable consideration when dealing with out of state parties.  Now asserting a right to attorneys’ fees in such a dispute may result in an inadvertent waiver.


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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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University of Miami Law Alumni – 1997 Class 20th Anniversary Reunion


Assouline & Berlowe, P.A., The BUSINESS LAW Firm, proudly sponsored the University of Miami Law Alumni Association’s 20th Reunion for the 1997 Graduating Class.  Eric N. Assouline, Esq., a member of this graduating class from the “U” was in attendance with many others, at the law school.  For Eric, it was a great time to see many of his classmates not seen in many years, as well as to meet some new classmates he had not known while in school together.

The event took place at the Coral Gables campus of the U just days before the University of Miami won another giant victory in its undefeated season, on the road to its first run to a national championship since 2001.

Eric is one of many of the attorneys at Assouline & Berlowe who graduated from the U.  Besides Eric, named partner and Head of Real Estate Litigation Peter Berlowe, Intellectual Property Partner and Patent Attorney Loren Pearson, and International Arbitration Partner Daniel Vielleville all also graduated from the University of Miami.

Eric Assouline sits on the Board of Directors of the University of Miami Law Alumni, and he often assists the University of Miami with students’ Moot Court and Mock Trial competitions.


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