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15 Years Later – the Hard Work Starts to Pay Off – Litigation Department of the Year

Winner of Daily Business Review's Litigation Department of the Year for Small Firms in the Section of Real Estate and Other Litigation

Litigation Partners Peter E. Berlowe and Eric N. Assouline at the 2018 DBR Awards Ceremony

Before starting the firm in 2003, both Peter Berlowe and Eric Assouline worked as associate attorneys at the Weil, Gotshal & Manges LLP law firm.  Hanging in the office of the Head of the Litigation Department was a framed plaque that read “Defense Verdict of the Year.”  This plaque commemorated the awesome accomplishment of the senior partner’s efforts, and it was recognized by the American Law Journal.  Eric Assouline used to look at this plaque in awe and wonder if he could ever achieve the heights of his mentor.

In its 15th year, Assouline & Berlowe has grown into a recognized and well regarded presence in the South Florida legal community.  Assouline & Berlowe works with businesses and individuals on a wide array of legal issues, ranging from real estate, business litigation, intellectual property, employment, and trusts, estates and probate matters.

On May 30, 2018, Assouline & Berlowe was recognized by the Daily Business Review for the tireless hard work and effort of its attorneys, when the firm was awarded Litigation Department of the Year, for Small Firms, in the areas of Real Estate and Other Litigation.

The award came as a surprise to the management of the firm, not because they did not think that they had anything short of an excellent litigation department.  Instead, it was because the litigation department of Assouline & Berlowe only consists of 7 attorneys, and the firm, as a whole only has 12 attorneys.  The Small Firm category of the DBR award was open to all firms of 69 attorneys or less.  Firm management thought that there must be dozens of other firms that had many celebrated successes worthy of trying to win this award.  Nonetheless, again, the tireless effort of the firm management did as it always does, all that could be done to try to win.

Now, the hard work for the last 15 years, is starting to pay off.

Eric N. Assouline, Esq.

 

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: ENA@assoulineberlowe.com 

http://www.assoulineberlowe.com/

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

 

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New Employment Law Developments

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Photo by rawpixel.com on Pexels.com

 

For all the media time devoted to President Trump, many of you may have missed some actual law-making going on behind the scenes.  Let me take a moment to update you as to three developments which should be of interest to employers:

 1-9 Audits on the Rise

Immigration and Customs Enforcement (ICE) has announced plans to increase I-9 audits this summer and focus on punishing employers who hire illegal workers and deporting of workers in the country illegally.  Make no mistake – the punishment to be imposed by ICE can include civil penalties and/or criminal charges.

 Accordingly, now is the time to make sure your I-9’s are in order and, if they need to be updated because the form of identification on file has expired or will be expiring soon, update them now.  Not all employers are enrolled in E-Verify, but many in the know believe the aim of ICE’s aggressive tactics is to increase E-Verify enrollment.

 While the audits do not include independent contractors, classifying workers as contractors when they should properly be classified as employees may expose employers to headaches beyond ICE: namely the Department of Labor and the Internal Revenue Service.

 New Rules for Tips and Tip Pools

As part of the 2018 tax bill, Congress amended the Fair Labor Standards Act (FLSA) in regards to tip pools and tip ownership.  First, under the new rules, employers are prohibited from keeping tips received by their employees, regardless whether the employer takes a tip credit. Second, the new rules state that employers who pay the full minimum wage (currently $8.25/hour in Florida) can allow employees who are not customarily and regularly tipped – like cooks and dishwashers – to participate in tip pools.  Note that tip pools must still exclude supervisors, managers and owners.

 Many employers do not pay tipped employees the minimum wage and instead take a “tip credit,” recognizing that the employee’s tips will bring the hourly rate up to and over the minimum wage.  For employers who wish to include back of the house workers in the tip pool, paying the minimum wage rather than the tip credit is a way to accomplish this goal.

 Arbitration Can Eliminate Class/Collective Actions

In the case of Epic Systems Corp. v. Lewis , the U.S. Supreme Court upheld an arbitration clause in an employment agreement which precluded the employee from bringing a class action against the employer.  The 5-4 decision authored by Justice Gorsuch makes clear that employer-favored arbitration agreements can be used to eliminate the risk of costly class and collective actions.

 Opponents of such agreements argued that arbitration could not trump employees’ rights to join together to seek common relief.  Based on the holding in Epic Systems, arbitration agreements can be used to eliminate an employee’s right to participate in a class or collective action and require arbitration of the employee’s individual claims only.

 Those of you who require your employees submit to arbitration to resolve any employment-related dispute should have counsel review the arbitration agreement to ensure that it precludes the employee from participating in a class or collective action.  Those of you who do not have arbitration agreements with your employees – either as a stand-alone agreement or as a clause in an employment contract – may want to consider putting this type of agreement in place.

 As always, if you have any questions about the foregoing or other employment-related matters, please feel free to contact me.  Happy Memorial Day to all!

Board Certified Labor and Employment Partner Ellen Leibovitch

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

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2018 Litigation Department of the Year – for Real Estate and Other Litigation, Awarded to ASSOULINE & BERLOWE, by Daily Business Review

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ASSOULINE & BERLOWE, the BUSINESS LAW firm was very pleased to receive the following news:

Congratulations! On behalf of the Daily Business Review’s Managing Editor Catherine Wilson, Assouline & Berlowe was selected as one of the 2018 Litigation Departments of the Year in the Small Firm Category (under 70 attorneys), Real Estate and Other Litigation category by the Daily Business Review.

The DBR announced that the honorees will be recognized at an awards reception on Wednesday, May 30, at the Rusty Pelican, 3201 Rickenbacker Causeway, in Key Biscayne. The event will begin with cocktails at 6 p.m., followed by dinner and presentations at 7 p.m. 

It goes without saying that the Firm is exceptionally happy to hear of this news.

The hard work and results Assouline & Berlowe obtained for its clients in 2017 were taken into consideration by the DBR in awarding Assouline & Berlowe this prestigious award.

Case No. 1: David v. Goliaths – The Trial that Defined the Firm’s Resolve

In January 2017, Assouline & Berlowe, P.A.’s (“A&B”) client, Akbar Nikooie, reached the last stage of a “bet the firm” battle against banking giant JP Morgan Chase (“JPMorgan”) and the once ubiquitous title insurance company Attorneys’ Title Insurance Fund (“ATIF”). In a case that started in 2007, when Mr. Nikooie lost his life savings to a multi-level mortgage fraud on a mansion in the posh celebrity laden area of North Bay Road in Miami Beach, the last issue to litigate in this ten year long epic fight was a four day long trial to determine the amount of attorneys’ fees that should be awarded to Mr. Nikooie and against JPMorgan and ATIF.

A&B’s Peter E. Berlowe represented Mr. Nikooie in the original trial on the merits, which was heard in 2010 before Gil Freeman in Miami-Dade Circuit Court’s Complex Commercial Division. Judge Freeman’s judgment in the case was appealed to the Third District Court of Appeal. In 2014, the appellate court, three years after oral argument, split Mr. Nikooie’s mortgage into two parts based upon equitable subrogation grounds. However, after the appeal, Mr. Nikooie’s mortgage was deemed to be in first position on the property.

On remand, Judge Thornton, now presiding over the Complex Commercial Division, referred the attorneys’ fees trial to Special Magistrate Retired Chief Judge Joseph P. Farina (the “Fee Trial”). Mr. Nikooie was only represented by A&B partners Eric Assouline and Peter Berlowe. JPMorgan and ATIF, working together, were represented by legal giants Gray Robinson, Carlton Fields, Lerman & Whitebook, and Ballaga & Freeman.

Through the Fee Trial, A&B advised that although their case was initially handled on an hourly basis, when the client’s balance grew to a point where he could not keep up with JPMorgan and ATIF’s relentless onslaught, the A&B was prepared to withdraw from the case. A&B ultimately agreed to represent Mr. Nikooie on a partial contingency basis and expended over 3,500 hours on the case. The appeal was handled with co-counsel Erik Scharf on a full contingency basis. Mr. Nikooie sought to have all of the reasonable attorneys’ fees awarded to him and placed on his first position mortgage. Mr. Nikooie also sought a contingency fee multiplier as to any fees that were handled on a contingent basis.

At the Fee Trial, JPMorgan and ATIF argued that Mr. Nikooie’s attorneys’ fees should be split into two parts, as was done by the appellate court with the mortgage. JPMorgan and ATIF also argued that Mr. Nikooie should not be granted a contingency fee multiplier. Judge Farina heard testimony from the attorneys in the case and from expert witnesses Glen Waldman and David Friedman regarding the reasonableness of the attorneys’ fees sought.

Judge Farina issued a twenty-one (21) page Report and Recommendation and awarded Mr. Nikooie all of his attorneys’ fees and costs, plus a 2.25 contingency fee multiplier, totaling $1,497,913.43, and agreed with Mr. Nikooie that the fee award should all be placed in first position with the first part of Mr. Nikooie’s split mortgage. This trial, which culminated ten years of litigation, was instrumental in bringing the parties to an amicable resolution.

Case style: Washington Mutual v. Gabriel Martin, P.A., et al., Case No. 07-01168 CA 40, Miami-Dade Circuit Court

  1. Name of client: Akbar Nikooie, Telephone: 305-235-8116
  2. Lead partners: Peter E. Berlowe and Eric N. Assouline, of Assouline & Berlowe, P.A.
  3. Opposing counsel: Leonard C. Atkins, of Ballaga & Freeman; Carlos D. Lerman, of Lerman & Whitebook; Marty J. Solomon, or Carlton Fields; and, Roland E. Schwartz, of Gray Robinson.

Case No. 2: Who Says You Cannot File a Lis Pendens for Unpaid Attorneys’ Fees?

A&B represented the personal representative of deceased attorney James Keegan. When Keegan died he had a very large receivable due to his firm for defending a client, Barbara Callado, and her family, on over twenty-five different mortgage foreclosure cases filed across the State of Florida on Callado’s real estate properties.

A&B filed suit on behalf of the estate and filed notices of lis pendens (“LPs”) for the particular balances due on the properties Keegan defended from foreclosure actions on behalf of Callado. Ordinarily, LPs are only filed based on a recorded instrument or a fraudulent transaction that involves tracing the funds to the property involved. Callado’s attorney moved to dissolve the LPs and argued that an attorney cannot obtain LPs without having such a right in their retainer agreement, i.e. a charging lien. In response, A&B argued that Keegan had benefited Callado and the property by providing the foreclosure defense services, no different than a material man provides a benefit under the construction lien statute. A&B argued that there was a “fair nexus” between Keegan’s legal fees generated protecting Callado’s properties from foreclosure and the properties themselves.

Judge Rodney Smith, the soon to be new federal judicial appointment by the President for the United States District Court for the Southern District of Florida, denied Callado’s motion to dissolve the LPs, and Callado appealed. Miami’s Third District Court of Appeal affirmed Judge Smith’s order denying the motion to dissolve the LPs.

With little precedent on this issue, attorneys may now be able to secure payment on their unpaid legal fees through an LP on real property based on their work saving the property from foreclosure, or some other benefit to the property. The hard work establishing this previously unrecognized position was helpful in bringing a resolution to this dispute.

Case style: Arianne E. Keegan, as personal representative of the estate of James D. Keegan v. Barbara Callado, et al. – Lower Case No.: 15-010712-CA-01; Appeal Case No.: 3D17-0302

  1. Name of client: Arianne Elisabeth Keegan c/o Stuart Gitlitz, personal attorney for Ms. Keegan
  2. Lead partner: Eric N. Assouline, of Assouline & Berlowe, P.A.
  3. Opposing counsel: Gary M. Murphree and Brandy Abreu, AM Law

Case No. 3: Vacation of $2.3 Million Dollar Judgment and Quashing of Service for Non-Compliance with the Hague Convention.

Assouline and Berlowe, P.A. obtained the vacation of a $2.3 million dollar default judgment and a charging order on client’s membership interest in a Florida LLC, quashing of substitute service, and ultimately, the Plaintiff’s abandonment of its case against firm client, Andrés Alvarez Fonseca. Local international dispute resolution firm GST LLP (“GST”) represented Plaintiff WF Worldwide Group Mexico Financiamiento y Colocación de Equipo (“WF Worldwide”) and obtained the 2.3 million dollar default judgment that was ultimately vacated.

When Mr. Alvarez Fonseca, a Mexican businessman with real estate holdings in Miami, first approached the firm, he had just learned of the case against him and the resulting default judgment. Upon consultation with Mr. Alvarez Fonseca, the firm took swift and aggressive action that resulted in a significant victory for the client.

Upon investigating the lawsuit, A&B learned that Plaintiff WF Worldwide had filed the case on September 9, 2016. Plaintiff had then unsuccessfully attempted to serve Mr. Fonseca, a Mexican National residing in Mexico, in Miami and Mexico under the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the “Hague Convention” or the “Hague”). Upon its unsuccessful service attempts, Plaintiff sought substitute service through the Florida Secretary of State. Plaintiff submitted an affidavit of substitute service with the Court and subsequently obtained a default judgment in the amount of 2.3 million dollars against Mr. Fonseca.

A&B first filed Defendant Andrés Ricardo Alvarez Fonseca’s Motion to Quash Service of Process and Motion to Vacate Default Final Judgment (“Motion to Quash and Vacate Judgment”). Therein, A&B argued that Plaintiff’s substitute service was defective, primarily, because compliance with the Hague is mandatory where there is an occasion to transmit judicial documents for service abroad and Plaintiff had failed to comply with the Hague by prematurely seeking default judgment in contravention thereof.

While A&B’s Motion to Quash and Vacate Judgment was pending, Plaintiff moved forward with its collection efforts. During this time, Plaintiff obtained a charging order against Mr. Fonseca’s interest in a LLC, which held real property in Miami. A&B filed a Notice of Appeal on the Charging Order.

Honorable Judge Eric Hendon who presided over the case heard the Motion to Quash and Vacate Judgment, agreed with A&B’s argument, and ordered the substitute service quashed and the subsequent default judgment and charging order vacated.

After agreeing to accept service on behalf of its client, A&B cemented its victory by filing a strong Motion to Dismiss for Lack of Personal Jurisdiction or Forum Non Conveniens and in the Alternative to Compel Arbitration (“Motion to Dismiss or Compel Arbitration.”). The Motion to Dismiss or Compel Arbitration was the last filing in the case, as Plaintiff abandoned its prosecution of the matter. The case has since been closed.

Case style: WF Worldwide Group Mexico Financiamiento y Colocación de Equipo, S de R.L. v. Andrés Ricardo Alvarez Fonseca; Case No.: 2016-023579

  1. Name of client: Andrés Alvarez Fonseca
  2. Lead partner: Daniel E. Vielleville and Peter E. Berlowe of Assouline & Berlowe, P.A.
  3. Opposing counsel: Quinn Smith, Katherine Sanoja and Derek Womack of GST LLP

Although Assouline & Berlowe has other departments, the litigation department was built through the backbone of the firm’s founders, litigators Eric Assouline and Peter E. Berlowe. Assouline & Berlowe litigation attorneys have regularly had to go up against some of the top attorneys and firms in South Florida in battles against much better funded adversaries. Never deterred, the firm has pressed on, often against the odds, in order to zealously represent their client’s interest. Eric and Peter have steadfastly trained their associates to work with the same ethic and have only brought in partners with the same mindset. In no year in the past has this been more evident than in 2017, when the firm’s resolve was truly tested.

Founded in 2003, Eric and Peter obtained their litigation training as associates working with some the top lawyers in their fields at the international powerhouse, Weil, Gotshal & Manges, LLP. At Weil, Eric and Peter were trained to accept nothing short of excellence in their work product and this training was instrumental in building the firm’s culture.

The firm’s culture is, and always has been since it was formed, to obtain the absolute best result for its clients, while thinking outside of the box and being ready to keep fighting for the client even when it may not be economically beneficial to the firm.

Intellectual Property litigation department:

1. Filed 10 patent infringement lawsuits in the Southern District of Florida ranging from technology for breakaway safety vests to secured automated notification systems. The cases that were filed by the firm are:17-cv-80529 – Electronic Communication Technologies, LLC v. TJX COS, Inc.; 17-cv-80512 – Electronic Communication Technologies, LLC v. Lumber Liquidators, Inc.;  17-cv-80511 – Electronic Communication Technologies, LLC v. Balsam Brands, Inc.; 17-cv-80385 – Electronic Communication Technologies, LLC v. Gemvara, Inc.; 17-cv-80259 – Electronic Communication Technologies, LLC v. Batteries Online, Inc.  Opposing counsel includes: Bob Lee, Esq. of Alston & Bird LLP; Neil McNabnay Esq. of Fish & Richardson; David Finkelson, Esq. of McGuire Woods, Eleanor Barnet, Esq of Heller Waldman.

2. Resolved various patent infringement and declaratory judgment cases filed in Ed. TX, N.D. Iowa, and N.D. Indiana; Peter A. Koziol of Assouline & Berlowe was the lead partner on the Triple7Vaping.Com, LLC case, as he replaced Jerold Schneider (of Schneider Rothman IP Law Group) who at the time was 2017’s Florida Bar Intellectual Property Law Certification Committee chair. Opposing counsel was:Ms. Ranieri’s co-counsel were: David Conrad, Esq. and Ricardo Bonilla Esq. of Fish and Richardson (Dallas, Texas); Mathew S. Sarelson Esq. of Kaplan Young & Moll Parron (Miami)  The main contact person for the Intellectual Property litigation department is Peter A. Koziol, Esq., pak@assoulineberlowe.com – Telephone: 561-361-6566.

3. Served as lead counsel in a highly publicized action filed by the Electronic Frontier Foundation against the nation’s allegedly most “prolific’ patent licensing entity (according to the EFF), Triple7Vaping.Com, LLC et al v. Shipping & Transit LLC, S.D. Fla. Case No.: 16-cv-80855, and Case No. 17-1066 (Fed. Cir. 2017).

4. Led litigation and/or licensing negotiations in over 200 patent infringement matters (some pre-suit) throughout the United States in 2017 alone (approximately 10% being filed in various district courts throughout the country);  According to Justia, this accounts for approximately 15% of the total patent litigation new cases filed in the Southern District of Florida for 2017.

  • 17-cv-80262 – Electronic Communication Technologies, LLC v. BTO Sports, Inc.; 17-cv-80261 – Electronic Communication Technologies, LLC v. Ellison Systems, Inc. d/b/a Shoplet.com; and
  • 17-cv-80510 – Electronic Communication Technologies, LLC v. C & A Marketing, Inc.;
  • 17-cv-80528 – Electronic Communication Technologies, LLC v. Dailylook, Inc.;
  • 17-cv-80914 – Safety Supply Corporation v. Abel Unlimited, Inc.

Upcoming matters in Intellectual Property litigation department:

  • Multiple trademark infringement actions for internationally acclaimed restaurant in Miami against misappropriators in New York and Georgia; and
  • Representation of game changing pharmaceutical benefit company against deceptive and tarnishing use of its name against a company accused of an organized enterprise pattern of “feedback extortion.”
  • Representation of foreign manufacturer of exercise equipment against rouge distributor that misappropriated its trademarks, merchandise and trade secrets;

In 2017, due to its litigation strength, the firm was able to resolve many matters for clients without filing suit. The firm helped it clients manage large portfolios of IP assets, including patent portfolios under development and used these assets to foster joint ventures, licensing and cross licensing agreements. The firm’s clients were able to use funding generated by licensing for further research and development of new technologies. However, when the clients’ intellectual property was misappropriated and the parties were unable to resolve their disputes amicably, the firm represented its clients in Court over what were often highly contested positions.

Peter A. Koziol chairs the Firm’s IP litigation department, which also includes Peter E. Berlowe, Eric N. Assouline, and Greg M. Popowitz. The firm credits the IP litigation department’s success with its client’s favorable positions, its members, and the additional support that it receives from the firm’s staff and other attorneys who are either seasoned litigators with experience in business, trade secrets and anti-trust law, or Florida Board Certified in Intellectual Property Law like partners Ellen M. Leibovitch and Loren D. Pearson.

It is Assouline & Berlowe’s experience that although IP litigation is generally a specialty practice, various litigation strategies require input from experts in other practice areas to obtain the best results possible for the client. Unique to Assouline & Berlowe is the law firm’s dedication to its current and past clients and the sophistication and experience of its attorneys which all share a strong focus and team approach to promoting business, commerce and technological innovation.

This included, for example the firm being retained in 2017 to defend an inventor funded company, Shipping and Transit, LLC (“S&T”) in a highly publicized dispute filed by the Electronic Frontier Foundation (“EFF”). The EFF, which openly advocates for the abolition of software patents and is funded by variously similarly minded organizations (see, e.g. https://www.eff.org/thanks), sought to invalidate U.S. Pat. Nos. 6,415,207, 6,763,299, 6,904,359, and 7,400,970, and accused S&T of violating Maryland Law. The Order of Dismissal is attached and also available at: https://ecf.flsd.uscourts.gov/doc1/051117870855?caseid=485292&de_seq_num=337.

For questions about Assouline & Berlowe PA and any of its 2017 achievements, please contact Eric Assouline, Esq., co-founder and Litigation Department Chair.

ASSOULINE & BERLOWE, P.A.

213 East Sheridan Street, Suite 3

Dania Beach, Florida  33004

Main: 954.929.1899

Fax: 954.922.6662

Email: ENA@assoulineberlowe.com

http://www.assoulineberlowe.com/

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

 

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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.

ASSOULINE & BERLOWE, P.A.

1801 N. Military Trail, Suite 160

Boca Raton, Florida 33431

Main: (561) 361-6566

Fax: (561) 361-6466

Email: EML@assoulineberlowe.com

http://www.assoulineberlowe.com/

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

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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!

#popowitzpartner

 

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Filed under Business Litigation, Copyright, Intellectual Property, IP Litigation, New Partner, Patent Prosecution, Uncategorized

Expand Your Brand

 

TM So you want to apply for a federal trademark to protect your brand. How does it work?  Does it cover all use of the brand?  These are a sampling of the questions I receive from entrepreneur’s and business owners looking to protect their brands.  Securing a federal trademark is a complicated but worthwhile process.  The Intellectual Property attorneys at Assouline & Berlowe take the time to explain the process to the brand owner so they understand what to expect and how to maximize their protection.

When applying for a federal trademark, you must pick the class of goods/services that your brand covers based on your existing use, or expected use, of the brand in commerce. For example, you own and operate a retail space where apparel is sold and you want to protect the brand name of the retail space (the name of the store).  You may want to seek protection in a services based trademark class for the bran associated with the retail space.  If the apparel sold at the retail space, the products, use the same brand, you may want to seek protection in a second product based class for the applicable apparel.  You can seek federal trademark protection in multiple classes of goods/services in the same application.  Generally, the scope of your federal protection is limited to the class of good/services in your federal trademark registration. Common law rights are handled differently.

In a recently released opinion, the Eleventh Circuit Court of Appeals held that a federal trademark registrant’s services based brand had extended protection related to goods. Savannah College of Art & Design, Inc. v Sportswear, Inc., 2017 U.S. App. LEXIS 19168 (11th Cir. Oct. 3, 2017).  The Court relied on a prior trademark case that extended protection of federally registered service marks to goods, despite little rational as to the basis for the expansion.  The Sportswear case stated that a federal registered service mark does not have to register that mark for goods to “establish the unrestricted validity and scope of the service mark, or to protect against another’s allegedly infringing of that mark on goods.” Id. at *15.  The registrant still needs to show the alleged infringer’s use of its brand is creating consumer confusion as to the source or origin of the brand. Notably, the Court did not discuss the “natural zone of expansion” doctrine, which can be used be extend a trademark owner’s rights into a new product line that is a natural expansion of their prior use.

While the Sportswear case helps trademark owners for services assert their rights for related goods, the optimal method of protection is registering the brand in the class from the outset.  As a trademark applicant, you can seek registration based on your actual use of the brand in a services field, while also applying for the same brand in a goods classes based upon your bona intent to use the brand in business in the future.  A well thought out branding strategy may include preserving your rights in a field that you plan to expand into.  While the trademark cannot register until you begin use of the brand in the applicable class, you can effectively preserve your place in line for up to three years (extending use in 6 month intervals) while you are preparing to use the brand in commerce.  Utilizing a trademark attorney helps you develop a branding strategy to maximize your protection now and for the future.  Don’t forget, a trademark is an asset and can have immense value. Just ask Apple and Google, whose brands are estimated to be worth $170B and $101B by Forbes, respectively.

For any questions about patents, trademarks, and copyrights, or IP generally, please contact Greg Popowitz below.  Follow him on Twitter @InventionAtty.

Greg M. Popowitz, Esq.

Registered Patent Attorney

AV Rated by Martindale-Hubbell

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/

LinkedIn  ||  Twitter

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

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Filed under Business Litigation, Intellectual Property, IP Litigation, trademark

The Intersection of IP and Technology

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Registered Patent Attorney Greg Popowitz recently filmed a CLE focused on Understanding Intellectual Property (IP) and Attorneys’ use of Technology.  Greg discussed the important distinctions between patents, trademarks, copyrights, and trade secrets, along with the key considerations when attempting to secure protection for your IP.

The second part of the course is directed at what attorneys should look out for as they use technology. Greg discusses attorneys using efiling, the need to redact sensitive information, ediscovery, social media and websites, and cloud computing (confidentiality). The CLE goes over relevant portions of the Florida Rules of Civil Procedure and Florida Rules of Judicial Administration.

To learn more about the CLE and what CLE credits are available in your state, please visit the National Academy of Continuing Legal Education (NACLE) here.  NACLE is seeking technology credit in Florida as the new technology CLE requirement starts January 1 2017.

For any questions about patents, trademarks, and copyrights, or IP generally, please contact Greg Popowitz below.

Greg M. Popowitz, Esq.

Registered Patent Attorney

AV Rated by Martindale-Hubbell

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/

LinkedIn  ||  Twitter

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

Miami • Ft. Lauderdale • Boca Raton

 

 

 

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