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
- Name of client: Akbar Nikooie, Telephone: 305-235-8116
- Lead partners: Peter E. Berlowe and Eric N. Assouline, of Assouline & Berlowe, P.A.
- 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
- Name of client: Arianne Elisabeth Keegan c/o Stuart Gitlitz, personal attorney for Ms. Keegan
- Lead partner: Eric N. Assouline, of Assouline & Berlowe, P.A.
- 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
- Name of client: Andrés Alvarez Fonseca
- Lead partner: Daniel E. Vielleville and Peter E. Berlowe of Assouline & Berlowe, P.A.
- 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., firstname.lastname@example.org – 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
Intellectual Property, Labor & Employment, Creditors’ Rights & Bankruptcy, Business Litigation, Corporate & Finance, Real Estate, International Law