URGENT EMPLOYMENT LAW UPDATE – FAMILIES FIRST CORONAVIRUS RESPONSE ACT

The Families First Coronavirus Response Act (“Act”) was signed into law on March 18, 2020, takes effect on April 2, 2020 and expires on December 31, 2020.  This email briefly summarizes those aspects of the Act applicable to employers with fewer than 500 employees.

EMERGENCY FAMILY & MEDICAL LEAVE

The Act amends the Family & Medical Leave Act (“FMLA”) by providing 12 weeks of job-protected leave for employees who have been on the job for at least 30 days, as follows:

  • The emergency leave must be for an employee to quarantine due to exposure to or symptoms of coronavirus, to care for an at-risk family member who is quarantined due to exposure to or symptoms of coronavirus, or care for a child if the child’s school is closed or a child-care provided is unavailable due to the virus.
  • The first ten (10) days of the leave may be unpaid (though the employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for unpaid leave), but the rest of the leave must be paid as follows: two (2) weeks of fully paid leave, and the remaining leave paid at two-thirds (2/3) the employee’s usual pay.
  • Paid leave shall not exceed $200 per day and $10,000 in the aggregate.
  • While employees taking this leave have the right to be reinstated in a position with equivalent pay and benefits, employers with fewer than 25 employees do not have to reinstate an employee if the position held by the employee when the leave commenced does not exist due to economic conditions or changes of operation that were caused by the public health emergency.
  • Employees who are emergency responders or who work for health care providers may not be eligible for emergency FMLA.
  • Employers with less than 50 employees can be exempted from the Act’s requirements when the imposition of such requirements would jeopardize the viability of the business as a going concern.

EMERGENCY PAID SICK LEAVE

The Act also allows for paid sick leave for employees (the “Emergency Paid Sick Leave Act”) who are unable to work due to: 

  1. A governmental quarantine or isolation order related to COVID-19;
  2. Advice from a health care provider to self-quarantine due to concerns related to COVID-19;
  3. The employee experiencing symptoms of coronavirus and seeking a medical diagnosis;
  4. A need to care for or assist an individual who is subject to a governmental quarantine or isolation order related to COVID-19 or has been advised by a health care provider to self-quarantine due to concerns related to COVID-19; or
  5. A need to care for a child whose school or place of childcare is closed or unavailable due to coronavirus.

Other highlights of the Emergency Paid Sick Leave Act include the following:

  • Employers with fewer than 500 employees are required to provide up to 80 hours of paid sick leave for full time employees.  Part-time employees can receive an amount equal to the to the number of hours the employee works on average over a two-week period. 
  • Employers may not require that employees use other paid leave time prior to using emergency paid sick time. 
  • Employers may not require employees who request paid sick leave to find a replacement to cover for their scheduled hours as a condition to grant the request.
  • Sick time will not carry over after 2020.
  • As with emergency FMLA, employers of health care providers and emergency responders may elect to exclude such employees from the application of the paid sick leave; and employers with less than 50 employees can be exempted from the Act’s requirements.
  • This section of the Act makes it unlawful for an employer to discharge, discipline, or in any other manner discriminate against any employee (1) who takes leave in accordance with this Act, or (2) has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act (including a proceeding that seeks enforcement of this Act), or has testified or is about to testify in any such proceeding. 
  • An employer who fails to provide sick leave as required under the Act shall (1) be considered to have failed to pay minimum wages in violation of section 6 of the Fair Labor Standards Act of 1938 and (2) be subject to the penalties described thereunder with respect to such violation, including liquidated (double) damages for willful violations.
  • As with other labor law posters, employers will be required to post notice of the Emergency Paid Sick Leave Act (to be provided by the Secretary of Labor) in a conspicuous place on the employer’s premises within seven (7) days from enactment.

TAX CREDITS

Employers who pay employees for emergency FMLA leave or sick leave under the Act are entitled to refundable tax credit taken against the employer’s share of certain employment taxes. The credits are limited up to $200 per day for up to 10 days for each employee who takes paid sick leave, but if the sick leave was for the employee’s own covered quarantine or isolation or for the time for the employee to receive his or her own diagnosis, the credit is limited to up to $511 per day. 

CONCLUSION 

This time of crisis requires everyone to be flexible – employers and employees – and employers must definitely update their time off and sickness policies to reflect the  changes imposed by the Act.  Employers who are able to allow employees to work from home and remain productive, should do so.  Employees who cannot work remotely and who do not qualify for emergency FMLA or sick leave should continue to work for as long as local ordinances do not require sheltering in place and so long as the employer has work for the employee.  The bigger issue, and one which Congress may next have to address, is the slowing down of commerce and the lack of work in many sectors of the business community.  More on that to follow as the matter winds its way through the halls of government.

As always, please stay safe and take care of yourselves and your families.

Ellen M. Leibovitch

Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower – Suite 135

Boca Raton, Florida 33431

Main: 561-361-6566
Direct: 561-948-2479

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eml@assoulineberlowe.com

www.assoulineberlowe.com


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


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FL SMALL BUSINESSES (100 employees or less) BRIDGE LOANS – Gov. DeSantis Jump Starts Emergency Short Term No Interest Loans

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COVID-19 and Florida’s Small Business Emergency Bridge Loan Program

Available until May 8, 2020 to small businesses established before March 9, 2020, and limited to only those businesses having between 2 to 100 employees and maintaining its principal place in Florida, businesses that have suffered economic loss can apply to the State of Florida for a one-year short-term, interest-free loan for working capital. The loans bridge the gap until sufficient profits from normalized business operations, payments from insurance claims, or federal disaster assistance are received. The Program has helped more than 4,750 small businesses statewide to receive more than $157.5 million in assistance

The loans are for up to $50,000; but in special cases, may be up to $100,000.

Although interest free in the first-year, any unpaid balance thereafter is subject to a 12% per annum interest rate; and any default is subject to normal collection processes.

Below is the official Press Release from Florida’s Department of Economic Opportunity

Governor Ron DeSantis Activates Emergency Bridge Loan Program for Small Businesses Impacted by COVID-19

Mar 16, 2020

Tallahassee, Fla. – Today, Governor Ron DeSantis activated the Florida Small Business Emergency Bridge Loan Program to support small businesses impacted by COVID-19. The bridge loan program, managed by the Florida Department of Economic Opportunity (DEO), will provide short-term, interest-free loans to small businesses that experienced economic injury from COVID-19. The application period opens tomorrow, March 17, 2020 and runs through May 8, 2020.

“As we mitigate against the spread of COVID-19, the health, safety and well-being of Floridians comes first,” said Governor DeSantis. “I understand the harm mitigation strategies will have on small businesses throughout our state. By activating the Florida Small Business Emergency Bridge Loan, we are providing the opportunity for Florida’s small businesses to receive cash immediately to ensure they can lessen the impacts felt as a result of COVID-19.”

DEO will administer the Florida Small Business Emergency Bridge Loan Program in partnership with the Florida SBDC Network and Florida First Capital Finance Corporation to provide cash flow to businesses economically impacted by COVID-19. The short-term, interest-free loans help bridge the gap between the time the economic impact occurred and when a business secures other financial resources, including payment of insurance claims or longer-term Small Business Administration (SBA) loans. Up to $50 million has been allocated for the program.

“Governor DeSantis has been a true leader in the fight to prevent the spread of COVID-19 and has prioritized the safety of all Floridians,” said Florida Department of Economic Opportunity Executive Director, Ken Lawson. “The Florida Small Business Emergency Bridge Loan will help Florida’s small businesses get through this unsettling time. We appreciate the Governor’s efforts to keep Florida’s small businesses top of mind and our partners at the Florida SBDC Network and Florida First Capital Finance Corporation to help them recover.”

Small business owners with two to 100 employees located in Florida affected by COVID-19 can apply for short-term loans up to $50,000. These loans are interest-free for up to one year and are designed to bridge the gap to either federal SBA loans or commercially available loans. DEO will work with every borrower to ensure that repayment of the loan isn’t an overwhelming burden. To be eligible, a business must have been established prior to March 9, 2020 and demonstrate economic impacts as a result of COVID-19.

“Mitigating the spread of COVID-19 in Florida must be our number one priority,” said Florida SBDC Network CEO, Mike Myhre. “The Florida SBDC Network stands ready to assist Governor DeSantis and the Florida Department of Economic Opportunity to help small businesses recover as a result of the impacts of COVID-19.”

“We are ready to assist the Governor and state of Florida to deliver this vital assistance to the small business community we serve, as we have 23 times since 1992,” said Florida First Capital Finance Corporation President and CEO, Todd Kocourek.

DEO is currently surveying businesses throughout the state of Florida who have been impacted by COVID-19. Businesses and non-profits can access the Business Damage Assessment survey at FloridaDisaster.BIZ Select “COVID-19” from the drop-down menu on the survey page. Response to the Business Damage Assessment survey is not an application for assistance. Businesses interested in the bridge loan program must fill out a bridge loan application.

For more information on the program, visit www.floridadisasterloan.org. For questions regarding the Emergency Bridge Loan Program, contact the Florida Small Business Development Center Network at 866-737-7232 or email Disaster@FloridaSBDC.org. The phone line will be answered during regular business hours; all voice mails and emails will be responded to within 24 hours.

Details on the Loan Program were also set forth on the www.floridadisasterloan.org web page.

Details from the web page follow:

The Florida Small Business Emergency Bridge Loan Program is currently available to small business owners located in all Florida counties statewide that experienced economic damage as a result of COVID-19.

These short-term, interest-free working capital loans are intended to “bridge the gap” between the time a major catastrophe hits and when a business has secured longer term recovery resources, such as sufficient profits from a revived business, receipt of payments on insurance claims or federal disaster assistance.

The Florida Small Business Emergency Bridge Loan Program is not designed to be the primary source of assistance to affected small businesses, which is why eligibility is linked pursuit to other financial sources.  Note: Loans made under this program are short-term debt loans made by the state of Florida using public funds – they are not grants. Florida Small Business Emergency Bridge Loans require repayment by the approved applicant from longer term financial resources.

Loan Details
      • Designated Disaster Areas: All Florida counties statewide per Executive Order 20-52.
      • Qualified Applicant: Applications will be accepted by qualified for-profit, privately held small businesses that maintain a place of business in the state of Florida. All qualified applicants must have been established prior to March 9, 2020, and suffered economic injury as a result of the designated disaster. Qualified small business applicants must be an employer business with 2 to 100 employees.
      • Amount: Up to $50,000 per eligible small business.  Loans of up to $100,000 may be made in special cases as warranted by the need of the eligible small business.
      • Term: 1 year.
      • Limitation: Only one loan may be made per eligible business. All previous bridge loans received MUST be paid in full.
      • Interest Rate: Loans will be interest-free for the loan term (1 year). The Interest rate will be 12% per annum on the unpaid balance thereafter, until the loan balance is repaid in full.  Loan default is subject to a normal commercial collection process.
      • Application Period: Applications will be accepted by qualified Florida small businesses under this program through May 8, 2020, contingent on the availability of funds.
Get Started
  1. Review eligibility requirements and loan process.
  2. Download, complete and sign the application form.
  3. Gather required support documentation.
  4. To submit completed applications and required documents, send by mail or courier to: Florida SBDC Network Headquarters, C/O Florida Emergency Bridge Loan Process, 220 West Garden Street, Suite 301 Pensacola, Florida 32502.  Applicants may also submit applications and required documents via email to Disaster@FloridaSBDC.org or by fax to (850) 696-2693.
  5. For assistance in completing the application, contact your local Florida Small Business Development Center (SBDC) office. To locate your local Florida SBDC visit www.FloridaSBDC.org/locations or contact us toll-free (866) 737-7232
Contact Information

For questions regarding the Emergency Bridge Loan Program, please contact the Florida Small Business Development Center (SBDC) Network Headquarters. Email: Disaster@FloridaSBDC.org.  Phone toll-free: (866) 737-7232.

About the Emergency Bridge Loan Program
The Florida Small Business Emergency Bridge Loan Program was first activated following Hurricane Andrew in 1992. It has been activated 26 additional times following disasters and has helped more than 4,750 small businesses statewide to receive more than $157.5 million in assistance.
Carl H. Perdue, Esq.
Eric N. Assouline, Esq.
ASSOULINE & BERLOWE
The BUSINESS LAW Firm
Miami – Ft. Lauderdale – Boca Raton
Main Office: Miami, Florida
Telephone: 305-567-5576

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STAY THE COURSE – Employers on Edge with Labor and Employment Related COVID-19 Concerns

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SOUTH FLORIDA – First and foremost, we at Assouline & Berlowe hope this note finds you and your family, friends, employees and others safe and well.   

We have been hearing from many of our clients and colleagues with questions about the impact of the coronavirus on their businesses – such as: allowing employees to work from home; what to do for those employees who cannot work from home; whether such employees can/should/must be paid for their absences; etc. The questions are wide-ranging and require advice that is a mix of the legal and the practical.

 As most of you may have heard, Congress is currently poised to pass federal legislation that the president is intent to sign into law that will address some of these employment-related issues, including paid leave to employees (along with a corresponding tax credit to the employer), expanded rights under the Family and Medical Leave Act and enhanced unemployment benefits. 

Once the law is enacted, we will follow up this blast with specific details (the House version of the bill – “The Families First Coronavirus Response Act” – has yet to have been voted on by the Senate).

In the meantime, you may have specific issues unique to your business that the law may not address, that may be addressed by other laws or that you may not even know are covered by any law.  Regardless of the nature of the inquiry, we are here to help as best we can, so please feel free to reach out.

Although these are uncertain times, if we each “stay the course” – be safe and smart and look out for ourselves and each other, we will get through this.    

In the meantime, you may have specific issues unique to your business that the law may not address, that may be addressed by other laws or that you may not even know are covered by any law.  Regardless of the nature of the inquiry, we are here to help as best we can, so please feel free to reach out.

Ellen M. Leibovitch, Board Certified Labor & Employment Lawyer

ASSOULINE & BERLOWE, P.A., 2300 Glades Road, East Tower – Suite 135, Boca Raton, Florida 33431 Main: 561-361-6566
Direct: 561-948-2479

 

 

 

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Happy Birthday Dr. Seuss!

 

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Trusts and Estates Partner Jason Steinman visited a local preschool to read Dr. Seuss books to the kids.  Dr. Seuss’s birthday is a nationwide reading celebration that takes place on March 2.  Across the country, schools, libraries, and community centers come together to celebrate Dr. Seuss and engage in fun reading activities.

Thank you to Jason and all the people who participated March 2 and through the week to encourage fun reading activities with the youth in our community.

Can anyone guess what they served for breakfast?

For any questions about the event or about Trusts and Estates, Probate and Guardianship, contact Jason Steinman below.

Jason Steinman, Esq.

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: JSteinman@assoulineberlowe.com 

http://www.assoulineberlowe.com/

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Mobile/Gaming Patent Presentation by Peter Koziol (3/3/2020)

CLE

Registered Patent Attorney and Partner Peter Koziol will be presenting an audio webcast on March 3, 2020 (at noon) on the subject of Mobile Applications, Gaming and Entertainment Patent Law.  To sign up to attend the presentation, click here.  Presented by  the Entertainment, Arts, and Sports Law (EASL) section of the Florida Bar, the one hour CLE will provide Technology Credit, which is a relatively new requirement for Florida attorneys.

Peter is a seasoned Intellectual Property attorney that handles the prosecution and litigation surrounding patents, trademarks, copyrights, and trade secrets.  Peter has developed a unique skill set regarding application/software related patents given his background in software engineering and his litigation surrounding software patents.

For any questions about the presentation and Intellectual Property, contact Peter Koziol and the Intellectual Property team at Assouline & Berlowe.

ASSOULINE & BERLOWE, P.A.

2300 Glades Road

East Tower #135

Boca Raton, Florida 33431

Main: 561.361.6566

http://www.assoulineberlowe.com/

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BANKRUPTCY LAW – Small Business Reorganization Act, New Interim Rules Released

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The United States Bankruptcy Court for the Southern District of Florida, through its Chief Judge, Laurel M. Isicoff, issued several updates tonight regarding the new Small Business Reorganization Act (SBRA), which goes into effect TOMORROW!

As stated by the Chief Judge: “The SBRA creates a new subchapter V of chapter 11 for the reorganization of small business debtors.  It does not repeal existing chapter 11 provisions regarding small business debtors, but instead creates an alternative procedure that small business debtors may elect to use.”

The Court further stated that: The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States has promulgated Interim Rules and Form Amendments to the Federal Rules of Bankruptcy Procedure as a result of the passage of the Small Business Reorganization Act.

Among the numerous orders, is Administrative Order 2020-02 In re: Adoption of Interim SBRA Bankruptcy Rules.  This is an important set of rules that bankruptcy practitioners in the Southern District of Florida must follow.

Amended Official Forms 101, 201, 309E (renumbered 309E1), 309F (renumbered as 309F1), 314 (use Local Form LF-33), 315, and 425A, and new Official Forms 309E2, and 309F2 become effective February 19, 2020. For changes in the Bankruptcy Forms please visit: https://www.uscourts.gov/rules-policies/pending-rules-and-forms-amendments/pending-changes-bankruptcy-forms.

Additional SBRA Resource:

A Guide to the Small Business Reorganization Act of 2019” by U.S. Bankruptcy Judge Paul W. Bonapfel Northern District of Georgia.

Eric N. Assouline, Esq.

 

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Spring Training – Sponsorship of Little League Baseball

Miami – Competition is at the heart of any lawyer. It is natural that advocating for a client will require a competitive advancement of a position. As part of a long tradition of supporting organizations in the community, Assouline & Berlowe has sponsored and continues to sponsor a little league baseball team. Here is the start of another season of the “boys of summer”.

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“Brand” New Trademark Rules Starting 2/15/2020

TMThe United States Patent and Trademark Office (USPTO) will not issue a federal trademark registration without the applicant first proving the mark (brand) being protected is actually being used in commerce.  Whether the proof is submitted with the initial application (for actual use applications) or later in the application process (for intent to use applications), the applicant will need to submit specimen of use for the  brand.  The types of evidence varies depending on the type of class associated with the brand.  For products, the specimen must be on the product itself, the packaging, or manuals.  While service based classes can use marketing materials, such a flyers, websites, and signage.

On February 15, 2020, the USPTO is updating the rules of specimen that are submitted to prove use in commerce.  The rules are becoming stricter.  For goods, the goods themselves must be included with the packaging, labels, or displays.  For apparel, hang tags or labels must actually be connected to the apparel, not merely next to the products.

Screen shots of websites showing the mark and detailing the services provided have been relatively standard as specimen over the years.  Under the new rules, any such screenshots will now require the URL and a date of the screen print.

The purpose behind the new rules is to prevent the submission of fraudulent specimen for marks that actually are not in use.  This is why digital images and mock ups of marketing materials are often rejected by the USPTO.

While the purpose of the rules is to help thwart fraud, one of the rule updates requires the inclusion of an applicant’s email address, not only the attorney’s email address.  This was optional in the past.  There is a known issue with companies mining the USPTO public records for applicant physical addresses and mailing official looking invoices that mislead applicants to pay fees that provide little to no value.

While the intent of the USPTO to require applicant email addresses is to help communication channels between the USPTO and applicants, the result will be greater access to applicants to those companies that mine USPTO databases trying to mislead applicants directly.  As a result of significant push back from practitioners and the public at large, the USPTO is presently looking at ways to “mask” the applicant’s email addresses from public viewing.

For any questions about the new trademark rules or to look into protecting your brands, contact Greg Popowitz.

Greg M. Popowitz, Esq.

Registered Patent Attorney / Partner

Intellectual Property Litigation

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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HAPPY 17th ANNIVERSARY to ASSOULINE & BERLOWE!

MIAMI – Assouline & Berlowe, P.A., The Business Law Firm, is pleased to announce that today it is celebrating its 17th Anniversary.

Started on February 10, 2003, through humble beginnings, in a small subleased space in Coral Gables, Assouline & Berlowe has weathered the many business climate changes and challenges of the past two decades.

Assouline & Berlowe is proud of its contributions to its communities in the tri-county area, as part of its presence with offices in Miami, Ft. Lauderdale/Dania Beach, and Boca Raton.  Assouline & Berlowe regularly supports both its legal community and numerous charitable organizations alike.

Assouline & Berlowe is strategically positioned to continue its expansion as a strong player in South Florida’s international business environment.

To all those that we have worked with in the past and to those we hope to work with in the future, we say thank you.

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You Thought All Settlement Offers Were Confidential?

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Photo by Alexander Mils on Pexels.com

That is not the case if the settlement offers show the case was litigated in an unreasonable manner. Federal Rule of Evidence 408 protects settlement communications.  The purpose being to encourage litigants to communicate and work on resolving the claims of the case.  Like most rules, there are exceptions.

Enter Blackbird Tech LLC v. Health in Motion LLC, 2018-2393 (Fed. Cir. Dec. 16, 2019).  Blackbird sued Health in Motion (“HIM”) and Leisure Fitness Equipment LLC (“Leisure”) for patent infringement regarding exercise equipment.  After 19 months of litigation, Blackbird voluntarily dismissed the lawsuit, with prejudice, and executed a covenant not to sue.  Shortly thereafter, the Defendants moved for attorneys’ fees under 35 U.S.C. 285, which allows an award of attorneys’ fees in patent cases to the prevailing party in “exceptional cases”.  The District Court granted attorneys’ fees and expenses in the amount of $363,243.80, which Blackbird appealed.

The Federal Circuit, which streamlines patent decisions of the district courts, affirmed the decision, holding the District Court did not abuse its discretion due to the way Blackbird litigated the case.  During the course of the litigation, Blackbird had a peculiar settlement strategy of decreasing offers that stood out.  The first offer was $80,000, then $50,000, then $15,000, and finally a walk-away offer of zero.  Defendants rejected all the offers.  The Federal Circuit analyzed the settlement offers and the nature of the decreasing offers, each of which were “significantly less than the cost of litigation.”  The Federal Circuit viewed the offers with suspicion.

The District Court also found that Blackbird unreasonably “delayed in producing documents, withheld many documents until after [Appellees] took [Blackbird’s] deposition[,] and completely failed to produce other responsive documents.”  Lastly, Blackbird unreasonably “filed a notice of dismissal, covenant not to sue, and motion to dismiss without first notifying [Appellees’] counsel, on the same day pretrial submissions were due and shortly before [Appellees’] motion for summary judgment was to be decided.”

While all of the issues led to the exceptional fee award due to Blackbird’s abusive litigation, the unique aspect was the court’s ability to open the window into settlement offers to demonstrate the abusive litigation tactics.  Blackbird’s settlement demands were far less that the anticipated cost of defense, which Blackbird admitted, and equated to mere “nuisance value settlement offers.”  While most settlement offers and negotiations are closed from public view, the court may open that door to assess whether attorneys fees can be awarded in exceptional cases.

For any questions about trademarks, patents, or copyrights, contact Greg Popowitz.

Greg M. Popowitz, Esq.

Registered Patent Attorney / Partner

Intellectual Property Litigation

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: GMP@assoulineberlowe.com

http://www.assoulineberlowe.com/

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