THE ADVOCATE FALL 2013 An Online Publication of the South Palm Beach County Bar Association

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1 THE ADVOCATE FALL 2013 An Online Publication of the South Palm Beach County Bar Association MESSAGE FROM THE PRESIDENT Welcome to the fall edition of The Advocate. I am so honored to be this year s South Palm Beach County Bar Association s President. Thanks to the hard work of our Board of Directors and our Executive Director, Lisa Hurley, we are having an amazing year. We have already held two of our four signature events: the Installation Gala and our Bench-Barrister Bash! You can read about both of these events in this edition. Thank you to Judge Colin for his hard work as honorary chair of the Bench Barrister Bash. Our additional signature events include the spring golf tournament and our now-famous annual holiday party. Please do not miss the holiday party this December 12 at Ruth s Chris Steakhouse in Mizner Park. If you have not attended the past few years, just ask those that have: it is fabulous! The SPBCBA is also sponsoring the South County Gift Gathering Gala for the benefit of the Legal Aid Society of Palm Beach County. We will be hosting this event on March 29, 2014 at the Boca Museum of Art. This is another South County event not to be missed. We are all enjoying our new lunch venue at Morton s Steakhouse in Boca Raton, and have had dynamic speakers thus far. We are looking forward to the remainder of this year as well as 2014, as we have an impressive line-up for our monthly lunches, including Eugene Pettis, President of The Florida Bar; and Justice Jorge Labarga of the Florida Supreme Court. Our committees are hard at work with CLE programs and networking events. I am pleased to announce that the Young Lawyers Division of the SPBCBA now officially holds a voting seat on the Board of Directors thanks to the amendment of the by-laws passed by you, the members. In addition, I am very proud to announce the creation of two very important committees, the Committee for Diversity and Inclusion, and the Professionalism Committee. The biggest thank you goes to you, the member. Because of your participation in our signature events, lunches, and committee events, we are stronger than ever! I would like to personally wish you all a beautiful holiday season. We are looking forward to a fantastic year! Officers Robin Bresky, President Marc A. Kaufman, President-Elect Mark R. Osherow, Treasurer Patricia Alexander, Secretary Directors Eric A. Gordon Andrew Dector Holly Gayle Gershon L.A. Perkins Gordon A. Dieterle Ellen M. Leibovitch Christopher A. Sajdera James T. Ferrara Brandan Pratt, YLS President Immediate Past President Larry Corman Ex-Officio Member Jill Weiss, President of PBCBA Editorial Review Board: Mark R. Osherow Editor-in-Chief Sean Lebowitz Christopher Sajdera Larry Corman Layout and Design: Lisa Hurley 1

2 40-LOVE! The 5th Annual Bench-Barrister Tennis Bash was a BLAST! 64 attorneys, Judges and Magistrates and spectators enjoyed beautiful weather, a great lunch catered by Ruth's Chris Steakhouse, and a morning filled with lobs and laughter! Prizes were awarded to the players for the highest score as well as prizes to players who were the best dressed, the most enthusiastic, the brightest shirt, the most likely to be in pain, and for being a ringer. Grand Benefactor: Joel M. Weissman, P.A. Refreshments and Lunch: Pankauski Law Firm, PLLC Court Sponsors: Akerman, LLP The Law Offices of Patricia Alexander, P.A. Broad and Cassel Elder Law Associates, P.A. The Law Offices of Robin Bresky Holly Gayle Gershon, Attorney at Law Greenspoon Marder The Law Offices of Benjamin T. Hodas, LLC Jacknin & Jagolinzer Manis O Shell, LLC, CPAs Pressly & Pressly, P.A. Sabadell United Bank Marc Kaufman Thanks go out to the Honorable Martin Colin, Honorary Chair; Tennis Pro, Betsy Savitt; and the 2013 SPBCBA Tennis Committee, Holly Gershon, Patty Alexander, L.A. Perkins, and Executive Director Lisa Hurley for a memorable tennis morning! Don't miss it next year! Thanks again to our sponsors: Judge Corlew and Daniel Seigel Tennis Pro Elizabeth, Judge Colin, Tennis Pro Betsy Savitt 2

3 September Monthly Membership Lunch By Daniel A. Kaskel, Esq., of Sachs Sax Caplan, P.L. On September 10, 2013 we kicked-off our Monthly Membership Lunch at our new venue, Morton s Steak House, with a great turn-out and inspiring speaker, Alan Veingrad. Mr. Veingrad is a former NFL offensive lineman, having played for both the Green Bay Packers and Dallas Cowboys. He was a member of the Cowboys Super Bowl XXVII Team. Mr. Veingrad s message to the members was poignant and well received. He encouraged us to establish and remain focused on achieving specific goals, as in his experience setting detailed and challenging goals helped him get into and succeed in the NFL. He also stressed that regardless of where we may be in our careers, whether a younger attorney still learning the ropes, or a more seasoned veteran, we must continue to set goals and focus on our target. He also shared some amusing and inspiring anecdotes from his experiences in the NFL. In addition to hearing from Alan and enjoying his eloquent introduction delivered by Dan Kaskel, we were pleased to hear a few words from Judge Daliah Weiss, who led us in the Pledge of Allegiance. We were also honored to have Judges Martin Colin and David French join us. Additionally, Florida Board of Governors members Ron Ponzoli and Michelle Suskauer also joined us for the lunch, with Mr. Ponzoli sharing a few thoughts. SPBCBA President Robin Bresky opened the meeting by thanking our sponsors, Sabadell Bank and Inspirations for Youth and Families, and sharing the upcoming events with the membership. Robin also introduced an amendment to the SBPCBA Bylaws creating a new Young Lawyers Section. The amendment was voted on by the Membership and passed without opposition. For those attorneys, like myself, who have not found it easy to carve out time to attend a Monthly Membership Lunch, I strongly encourage you to include at least a few lunches on your calendar this year. The venue, Morton's the Steakhouse, is convenient and warm, and the food is outstanding. The committee updates and announcements are quick and to the point, the atmosphere is very welcoming, and the time spent chatting with colleagues and judges is pleasant and worthwhile. If you thought about going to a membership lunch in the past but shied away for any reason, this is the year to attend. Daniel Kaskel is a Principal Partner at the Law Firm of Sachs Sax Caplan, Boca Raton and a Board Certified Real Estate Lawyer. 3

4 The Honorable Reginald Corlew By Robin I. Bresky of the Law Offices of Robin Bresky For those of you who don t know South Palm Beach County Court Judge Reginald Corlew, you are missing out. Judge Corlew has a fascinating past and has some current words of wisdom for the attorneys practicing here in South Palm Beach County. A Florida native, Hon. Reginald Corlew grew up in North Florida and was passionate about football. He played for his local high school and was so talented that he was recruited to play football for the University of Florida (go Gators!). In 1983, he was tasked with being Emit Smith s mentor. He also played with other greats such as Kirwin Bell and Wilber Marshall. He still keeps in touch with the players from those college days. Reginald Corlew went to law school at Southern University Law Center, and then received his LLM from Southern Methodist University. He worked for the government from 1993 to 2006 in the Office of the Chief Counsel of the IRS, where he was a federal tax litigator in Jacksonville, Miami, and Ft. Lauderdale and handled some matters in the bankruptcy court. The cases he handled were million- and billion-dollar matters. He developed the cases and litigated those that went to court. Judge Corlew took the bench in the Palm Beach County Court in 2006, handling criminal cases until he took the civil bench in Judge Corlew also presides over domestic violence cases here in South County. Last October he was selected to sit as an associate judge on the Fourth District Court of Appeal. This year Judge Corlew was honored as the Alumni of the Year for 2013 by Southern University Law Center. Judge Corlew was further recognized in his law school s judicial hall of fame. Judge Corlew is married with two boys who are active in soccer, baseball, and basketball. Judge Corlew has some advice for practicing attorneys: credibility is everything. Concede issues that should be conceded, and don t participate in gamesmanship. The outcome is not as important as how you get there. You are an officer of the court before you are a zealous advocate for your client. Be candid with the court regarding precedent and don t bring Judge Corlew a county court case to support your argument when there is a Supreme Court case with an opposite holding. Judge Corlew would like to see more professionalism and civility in his courtroom. He often sees pro se litigants in his courtroom, and many times it is their first experience in the legal system. He firmly believes that attorney conduct will shape public perception of our profession. Let s show the public what a truly honorable profession it is! Robin I. Bresky is an appellate attorney at the Law Offices of Robin Bresky. NEW PROFESSIONALISM COMMITTEE The South Palm Beach County Bar Association is forming a Professionalism Committee to develop projects to improve attorney civility, communications and conduct between members of the Bar Association, the Bar and the Judiciary. If you are interested in being a Committee Member please contact Committee Chair Larry Corman at An initial Committee meeting will soon be scheduled to discuss and plan events for the Association s 2013/2014 year. 10th Annual Golf Classic March 28, 2014 More details to come! 4

5 The South Palm Beach County Bar Association Annual Holiday Party and "Toys for Tots" Toy Drive Please join us for Cocktails...Dinner...Good Cheer! Admission is $85 for members and $100 for nonmembers, plus a new, unwrapped, non-violent toy for a tot. Cost: $85 per person for members of SPBCBA and their guests $100 per person for non-members of SPBCBA SPONSORSHIP OPPORTUNITIES AVAILABLE Visit our website at for more information. 5

6 QUESTIONED DOCUMENT EXAMI- NATION: An Overview of the Basic Techniques and Technology. By E lyn Bryan At no time in history was crime more rampant than it is today. Whitecollar crime accounts for more than $140 billion in losses annually. Nearly $20 billion worth of check fraud occurs annually. More than $2 million of worthless checks are passed daily. Telemarketing accounts for $48 billion in fraud, while according to the FBI, Internet fraud as of 2009 had topped $264 million in online losses. A crime wave of this proportion has put the services of competent investigators and certified forensic-document examiners in high demand. A competent investigator is cognizant of all the clues at a crime scene. Items such as credit-card receipts, legal papers, canceled checks, personal notes, leases, and other types of documents and writing may hold the clues to the motive. The observant investigator will call attention to these documents. An investigator who does not think along those lines may miss the subtle clues that could be found on even the smallest scrap of paper, on a blank writing pad (that might reveal invisible indented writing), or among the personal belongings of a victim. Crimes involving fraud, larceny, forged wills, death threats, identity theft, ransom notes, poison-pen letters, otherhand disguised writing, traced signatures, assisted deathbed signatures, altered medical records, fingerprint examination, ink and paper analysis, watermarks, contrived faxes, cut-and-pasted signatures on legal documents, anachronisms (chronological errors, such as paper or ink that did not exist simultaneously), disputed pre- and post-nuptial agreements, and auto-pen signatures are examples of the types of cases that are filed in our courts every day. An investigator should be aware of the fact that any documents or written material found at the crime scene may hold clues to solving the case, whether it is written on paper, walls, a car door, or a mirror. Questioned documents or writing can be typed, written in blood, lipstick, ink, pencil, or body fluids. Most documents are written with non-violent, white-collar criminal intent. Others are written with darker purposes in mind: murder, stalking, kidnapping, and suicide. In questioned document investigations, as in any investigation, it is the duty of the document examiner to remove the shadow of doubt. The examiner, if possible, will determine without prejudice if the document is authentic or forged, original or altered. The document examiner is an advocate of the courts. Examiners do not have clients; they represent the justice system. As a result, the examiner cannot become emotionally involved or empathetic. Upon initial contact, the examiner must disclose a non-fiduciary relationship to the person who retains the examiner s services. A well-trained document examiner knows to examine all the physical features of a questioned document, not just the questioned signature. There are dozens of components to consider when examining a signature or a document. Characteristics to consider include the writing medium used and the surface it is written upon, the age of the paper or ink, and watermarks. Continued on page 14 Income Tax Consequences of Damages Awards in Personal Injury Cases By Mitchell W. Goldberg, of Gutter Chaves Josepher Rubin Forman Fleisher Miller, P.A. When a plaintiff receives an award of damages either through settlement or judgment, to what extent is it taxable to the plaintiff? Until 1996, the Internal Revenue Code (the Code ) excluded damages for personal injuries, both physical and emotional. 1 The Small Business Job Protection Act of 1996, however, limited the exclusion to physical injuries and physical sickness. The Code now provides that income does not include the amount of any damages (other than punitive) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness. The term damages means an amount received (other than worker s compensation) through prosecution of a legal suit or action, or through a settlement agreement entered into in lieu of prosecution. 3 The Code further provides that emotional distress generally is not treated as a physical injury or physical sickness. 4 Legislative physical sickness. In Jacqueline Medina history states that the term emotional dis- v. C.I.R., the settlement payment plaintiff tress includes symptoms such as insomnia, headaches, and stomach disorders that may result from emotional distress. 5 Thus, Congress contemplated that emotional distress may physically manifest itself but that not all physical manifestations rise to the level of physical injury or physical sickness for purposes of the exclusion from gross income. 6 However, where physical injury or physical sickness comes first and emotional distress is suffered as a result, damages related to such emotional distress may be excludable. 7 In no event, however, may amounts be excluded to the extent attributable to medical expenses for which a deduction was claimed in a prior year. 8 To determine whether damages are received on account of physical injury or physical sickness, and thus excludable from gross income, courts apply the origin of the claim test. The origin of the claim test examines the allegations contained in the taxpayer s original and amended complaints, evidence presented, arguments made in state court proceedings, and intent of the payor to determine whether the damages are attributable to physical injuries or received was held to be fully taxable because no documents stated any portion of the payment was for physical injuries or sickness. In Medina, the plaintiff received a settlement payment of $70,000 (consisting of two lump sums: $12,000 as compensation for services and $58,000 as employee non-compensation) in settlement of a wrongful termination suit she filed stating six (6) causes of action against her former employer, none of which explicitly related to physical injury or sickness she allegedly incurred. The plaintiff sought to exclude the $58,000 as nontaxable damages for physical injury or sickness under Code 104(a)(2). The Tax Court examined the settlement agreement and found it made no reference to physical injuries or physical sickness resulting from the former employer s actions, did not carve out any portion of the settlement payment as being made on account of physical injuries or sickness, and the plaintiff gave a general release relating to her employment and termination only. As such, the Tax Court found none of the settlement payments were made on account of physical injuries or sickness and held the $58,000 was fully taxable. Continued on page 16 6

7 On June 8, 2013, the South Palm Beach County Bar Association held its 52nd Annual Installation Gala. Over 220 distinguished members of the Bench and Bar and their guests flocked to the beautiful Woodfield Country Club to socialize during a hors d'oeuvres and cocktail hour, followed by dinner, dancing, and the Installation of the Association's Officers and Directors. The Honorable Burton Connor led the attendees in the Pledge of Allegiance and introduced outgoing President, Larry Corman, of Greenspoon Marder, P.A. Mr. Corman recognized the Judges in attendance: Burton Connor, Alan Forst, Jonathan D. Gerber, Meenu Sasser, Rosemarie Scher and Daliah Weiss. He also recognized attending dignitaries Jill Weiss, President, and Adam Rabin, Past President of the Palm Beach County Bar Association and Robert Bertisch of Legal Aid Society. Also in attendance were the following Past Presidents of the South Palm Beach County Bar Association: Edward Artau, Jeff Brown, Michael Gora, Denise Isaacs, Darryl Kogan, Seth Marmor, Lawrence Miller, Marc Millian, Michael Mopsick, Tom Sliney, and Private Judge Kenneth Stern. Mr. Corman also recognized the Association s various Committee Chairs and Board Members of the Young Lawyers Section who were in attendance. At the conclusion of Mr. Corman s farewell remarks, Judge Jonathan Gerber took the stage to swear in the new President, Officers and Directors. The new President, Robin Bresky, of the Law Offices of Robin Bresky, received the gavel as the Association's incoming President for the membership year. Along with Ms. Bresky, President-Elect, Marc A. Kaufman, of Marc A. Kaufman and Associates, P.A.; Treasurer, Mark R. Osherow now of Broad and Cassel; and Secretary, Patricia Alexander of the Law Offices of Patricia Alexander, P.A. were sworn in as officers and Eric Gordon, Andrew Dector, L.A. Perkins, Gordon Dieterle, Ellen M. Leibovitch, Christopher Sajdera and James Ferrara as Directors. Ms. Bresky as the new President briefly addressed the audience and then introduced attorney Thomas Sasser, who then presented his wife, the Honorable Meenu Sasser who was presented with the Distinguished Jurist Award in recognition of her service and her ongoing work on the Palm Beach County Circuit Court Bench. Continuing the association s longstanding tradition, a great time was had by all who attended the installation gala. We hope to see you attend the 53rd Installation Gala in President, Robin Bresky and Immediate Past President, Larry Corman. Distinguished Jurist, Meenu Sasser and Thomas Sasser. Judge Jonathan D. Gerber Swearing in of Officers: Marc A. Kaufman, President Elect; Mark Osherow, Treasurer; and Patricia Alexander, Secretary. Bonnie & Michael Gora Angelo Gasparri, Tammy Saltzman and Bob Bertisch Judge Jonathan Gerber swearing in Directors: Eric Gordon, Andrew Dector, L.A. Perkins, Gordon Dieterle, Christopher Sajdera and James Ferrara. YLS Brandan Pratt, President; Mitchell Goldberg, Vice President; Sean Lebowitz, Secretary; and Scott Weiss, Director 7

8 2013 Installation Gala Pictures Judge Burton C. Connor, Judge Daliah Weiss, Jason Weiss Judge Jonathan D. Gerber, Tracy Gerber, Patricia Kaufman, and Marc Kaufman Mark and Nancy Osherow Doreen Yaffa, Kathleen Kent and Cynthia Pyfrom Brian Scher and Judge Rosemarie Scher Judge Burton C. Connor Donn Londeree, Wanda and Louis Williams PBCBA and SPBCBA Past Presidents: John Howe, Adam Rabin, Larry Corman, Michael Mopsick, and Manuel Farach 8 Lynn Gross and Melissa Zinkil

9 The national firm Roetzel, is pleased to announce the addition of attorney Rose M. Schindler as a securities litigation partner in the firm s Fort Lauderdale office. Ms. Schindler focuses her practice on securities litigation, primarily securities arbitration. Her cases also involve commodities litigation, regulatory investigations and compliance consulting. Ms. Schindler is also a certified regulatory compliance professional, who previously held positions with the Financial Industry Regulatory Authority (FINRA) and the U.S. Securities and Exchange Commission (SEC). The statewide law Firm Broad and Cassel is pleased to announce the addition of Mark R. Osherow, a Florida Bar Certified Specialist in Business Litigation. Osherow joins the firm s West Palm Beach office in the Bankruptcy and Creditors' Rights, Labor and Employment, Commercial Litigation, Real Estate Litigation, Construction Law and Litigation, and Corporate and Securities Practice Groups. Announcements for our attorney and professional members Susan B. Jacobson, L.M.H.C. is now a Florida Supreme Court Certified Family Mediator, in addition to being a Fellow in Psychotherapy, a Nationally Certified Parenting Coordinator and a Nationally Certified Custody Evaluator. Ms. Jacobson has provided psychotherapy for over 20 years, focusing on children and parents and the divorce process and brings this experience to her mediation practice. Effective October 18, 2013, Ellen Leibovitch's new office address will be: Ellen M. Leibovitch Board Certified Labor & Employment Lawyer ASSOULINE & BERLOWE, P.A N. Military Trail, Suite 150 Boca Raton, Florida Main: Direct: Fax: Effective November 11, 2013, the Boca Raton office of Brinkley Morgan will be at their new location at 2255 Glades Road, Suite 340W, Boca Raton, FL 33431, (561) QUOTABLE QUOTES: "Don't correct people when it matters little." Craig N. founder at craigconnects Have information to be posted in Bar Talk? it to Lisa Hurley, Executive Director, at or fax it to HELP WANTED NOW HIRING! The South Palm Beach County Bar Association is seeking to hire a part-time clerical assistant to work with our Executive Director, Lisa Hurley. The applicant must be able to work up to 20 hours per week as needed on a minimum wage basis. Computer proficiency and a positive attitude is required! Applicants should be energetic, hardworking. Business casual attire and organizational skills required. Applications are currently being accepted and reviewed. Applicants should send an (and resume) to Ellen M. Leibovitch at Thank you! LOOKING FOR EMPLOYMENT If you or someone you know is interested in hiring a soon to be UM law graduate, please contact Jessica Bouis at Jessica is most interested in working in a family law or criminal practice, but she is open to other areas as well. Crystal Boni Carswell, 2012 graduate of the University of North Carolina School of Law is seeking to relocate back to South Florida. Please contact Crystal Boni Carswell at Crystal currently works as a family law associate at a firm in Charlotte, North Carolina. Crystal is interested in employment/labor law, as well as criminal law; however, she is open to other areas as well 9

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11 Narcissistic Personality Disorder and Your Practice. By Susan B. Jacobson, L.M.H.C. and Dr. Wade Silverman In looking at Personality Disorders, we will focus on the Narcissistic Personality Disorder. You might interact with this individual as either a client or colleague. He/she will exhibit a pervasive pattern of grandiosity, lack of empathy, and an inordinate need for admiration. This pattern is manifested in at least five of the following characteristics: (1) An inordinate sense of selfimportance; (2) preoccupation with fantasies of unlimited success, power, intelligence, etc.; (3) believes in his/her uniqueness or specialness; (4) needs excessive administration; (5) has a sense of entitlement; (6) is exploitive of others; (7) lacks empathy; (8) is either envious of others or believes others are envious of him/her; (9) displays arrogance. Those of you who have followed the trials and tribulations of O.J. Simpson might conclude that he is a narcissistic personality. In an article in Esquire he said, Let s say I committed this crime. Even if I did do this, it would have to have been because I loved her very much, right? This one statement contains, or at least implies, that O.J. manifests 7 of the 9 aspects of Narcissism. Can you name them? The typical response of someone who interacts with this kind of individual is either a jaw dropping.... or extreme anger. Remember, however, that these people actually believe what they are saying. Their orientation masks feelings of inferiority. If you can avoid reacting emotionally to overblown rhetoric and arrogant attitudes, you can successfully interact with this client. As long as you concentrate on the issues at hand you will not be caught in the client s self-delusions. These clients are easily co-opted by compliments and flattery, and like most clients, will ultimately focus on the merits of their case. Susan Jacobson, L.M.H.C., N.B.C.C. is a Fellow in Psycho-therapy, who treats children, adults, couples and families. Ms. Jacobson s focus of practice is Marital and Divorce related issues. Florida s Guns at Work Law By: Larry Corman, Esquire On Tuesday, April 15, 2008, Florida Governor Charlie Crist executed the Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008, also known as the Florida Guns at Work Bill. The Act s stated intent is to codify the long-standing legislative policy of the state that individual citizens have a constitutional right to keep and bear arms and that these rights are not abrogated by virtue of a citizen becoming an employee of a business entity. Objections to the law have been raised by numerous parties who have asserted that the law violates important property and contract rights, precluding businesses from controlling what is brought onto their property/parking lots. The new law, Fla. Stat , makes it illegal for certain public and private employers to prohibit any employee from possessing any legally owned firearm when the firearm is locked inside or locked to a private motor vehicle in a parking lot when the employee is lawfully in such area. Schools, correctional institutions, nuclear-powered electricity generation facilities, property where national security activities take place, and property where the primary business is the manufacture, use, storage, or transportation of explosives are not covered by the Act. The statute protects employee privacy rights by prohibiting employers from asking about the presence of a firearm inside or locked to a private motor vehicle, and precludes employers from searching an employee s private motor vehicle in a parking lot to ascertain whether or not a firearm is present. Furthermore, employers cannot take any action against an employee based upon any verbal or written statements concerning the possession of a firearm stored inside a private motor vehicle in a parking lot for lawful purposes. Employers are also precluded from conditioning employment upon (a) the employee or prospective employee holding or not holding a concealed weapons license or (b) an employee or prospective employee agreeing not to keep a legal firearm locked inside or locked to a private motor vehicle in a parking lot. Employers/property owners also are prohibited from preventing any employee from entering the parking lot of the employer s place of business because the individual s vehicle contains a legal firearm that is out of sight within the vehicle, or terminating the employment of or otherwise discriminating against an employee, as long as a firearm is not exhibited on company property. Employee is defined as anyone who possesses a valid weapons license and who either works for salary, wages, or other compensation. The term includes independent contractors, volunteers, and interns. Civil actions can be brought by either the Attorney General of Florida or by an aggrieved person to enforce the Act, and the prevailing party can recover attorneys fees and court costs. Florida is not the first state to pass this type of law. A 2004 Oklahoma law made it illegal for employers to have policies that prohibited any person (except a convicted felon) from transporting and storing firearms locked in a motor vehicle in a parking lot. In Conoco Phillips v. Henry, 520 F. Supp. 2d 1282 (N.D. Court Okla. 2007), a Court held that the law conflicts with and is preempted by the Federal Occupational Safety and Health Act ( OSHA ), and stated that the Oklahoma statute: requires employers to abate hazards in their workplaces that could lead to death or serious bodily harm Continued on page 16 11

12 Premarital Agreements By Michael H. Gora, Shapiro Blasi Wasserman & Gora PA QUESTON: If your wealthy client calls you and tells you that he or she is planning on marrying a wonderful person met last Thursday at Bridge, what is the first thing you should say after congratulations? ANSWER: Let s sit down and talk about finding a lawyer so that an air tight premarital agreement can be drafted for you. While knowledgeable matrimonial and trust and estates lawyers will have known the answer to the question, many of you may not. For the wealthy, marrying without such an agreement is likely to interfere with that dynamite estate plan which was intended to protect children and grandchildren from estate taxes, while giving away thirty percent of your estate to a person that your client has known for a few weeks. Or, it might burden your client s income and/or savings with lifetime alimony obligations arising a year or two after an unsuccessful marriage to a person who has become disabled through accident or disease. Such disastrous results can be avoided by carefully entering into a prenuptial agreement, also known as an antenuptial agreement, through which all of the rights mentioned above and many others can be waived by contract. Florida has a long history of allowing the bride and groom to enter into a binding contract though which they can waive most if not all of their marital rights to inherit and all rights which kick in at the time of a divorce whether the marriage lasts for ten days or half a century. It would take a book to explain all of the rights which can be waived through a properly negotiated, drafted, and executed agreement. For years these rights arose from a series of appellate cases, but now are governed by Florida s version of a uniform statute which is similar but not identical to the uniform statutes in other states. There are a number of do s and don ts in constructing a bullet-proof prenuptial agreement both legal and practical. In the first place if you are a lawyer who specializes in business contracts, real estate, personal injury law, or criminal defense, do not try to draft a prenuptial contract without help. Make certain that the agreement has been blessed by a matrimonial attorney and a trust and estates attorney, as both sets of skills will be applied. Generally, to survive a later attack, make certain no claim of coercion or duress can be brought against you or your client. Begin your negotiations months before the wedding date. Make certain that the impecunious party has his or her own attorney of his or her own choice, without your recommendation or suggestion, or that of your client. Have the document signed well before the wedding. At the beginning of the negotiation each party should provide the other with a complete list of all assets and liabilities with full transparency and accuracy. The list should be delivered with back up materials, although simple but complete and accurate lists have been upheld. Misleading the other party by providing a false disclosure can easily drive the agreement over a cliff when attacked in court at a later time. Don t stop short of applying both a belt and suspenders to the execution of the agreement. If possible have the happy couple in the same room with their lawyers, a court reporter and, often, a videographer. Such preparations saved the financial behind of one of America s highest paid baseball players whose wife claimed coercion and duress at divorce time. Her case was stopped in its tracks when the lawyers on both sides viewed the hand holding, hugging and kissing as the documents were signed. Don t expect to be invited to the wedding. Michael H. Gora is a Partner at Shapiro Blasi Wasserman & Gora PA, Boca Raton. NOVEMBER Monthly Membership Lunch 13 SOLO/Small Firm Networking Dinner 21 Family Law Box Lunch MARCH Board of Directors Meeting 18 Monthly Membership Lunch DECEMBER Board of Directors Meeting 5 Family Law Box Lunch 12 Annual Holiday Party & Toys for Tots Drive JANUARY Board of Directors Meeting 14 Monthly Membership Lunch 16 ADR/Mediation Committee Lunch FEBRUARY Board of Directors Meeting 11 Monthly Membership Lunch APRIL Board of Directors Meeting 8 Monthly Membership Lunch 25 Nuremberg Luncheon Temple Beth El MAY Board of Directors Meeting 13 Monthly Membership Lunch 31 53rd Annual Installation Gala For more information about any of the events, please go to our website at 12

13 How a Mediator Can Help Instill Civility and Professionalism By Rodney Romano, Esq. What can a mediator do to help install Civility and professionalism when attempting to resolve pending litigation? Here are some ideas: 1) In a pre-mediation conference, counsel discloses that she and opposing counsel hate each other on every level and that the mediator should be ready to sit through an angry exchange. A good mediator may take a moment to explore whether the angry exchange is necessary to the representation and if not, suggest that the opening be resolute but not caustic. It is always possible to ratchet the rhetoric up but it s harder to tone it down. 2) During openings, the attorneys are being outright rude to the opposing side. What s wrong with politely asking counsel to step outside and then pointing out that they are both acting in a way that is embarrassing their clients and making them appear childish, not strong? Of course, what the mediator says may depend upon how well he/she knows the lawyers. 3) When a lawyer s presentation is exceptionally well prepared and presented, the mediator may compliment the lawyer in caucus and thank him/her for setting the stage on which the mediator will do his/her work. Encouraging good behavior is at least as important as discouraging bad behavior. 4) Oftentimes lawyers will ask for feedback on their style or presentations and it s a great opportunity to point out techniques that made the case easier to understand or parts that may not have made sense to me. This is an opportunity to identify information which could have been included in the summary and that would have been helpful to the mediator and would have enabled the attorneys to make the best use of their time. Like every busy mediator, I have had the great privilege of conducting the first mediation for lawyers who have gone on to achieve excellence in their careers and it s a thrill to be a witness to their evolution. Sometimes I observe - not because I am a sage, but because I have a bird s eye view behavior that deserves recognition or comment. What kind of professional would I be, what kind of person would I be, if I failed to take the opportunity to help a brother or sister at the Bar with a word of encouragement or a suggestion for change. To be sure, a mediator must never lose impartiality and any suggestions must be carefully made so as not to cross the line of neutrality. Mediators can help advance the mission of instilling civility & professionalism through mentoring in almost every case. Every opportunity to help a fellow professional grow should be seized with a positive and enthusiastic attitude. After all, we are all hardwired to be at our best and to experience the greatest satisfaction - when we are in the service of others. Rodney Romano is a Florida Supreme Court Certified Circuit Civil Mediator and founder and coowner of Matrix Mediation in South Florida. Make Sure You are NOT DOA When the DOL Comes Knocking Hire an Attorney By Ellen M. Leibovitch Knock Knock. Who's There? The Department of Labor (the "DOL"). The DOL is here to see you now what?! Imagine the scene: you are the owner of a business, not too big but not small either. You have done pretty well for yourself and have grossed over $500,000 in revenues over the past few years. You have a staff of employees, most of whom are hourly. It s a typical day, business as usual, when all of a sudden your receptionist announces that some people from the DOL are here to see you. A myriad of thoughts and questions race through your mind: Why is the DOL here? I never got a letter or any notice that I had any problems! Why didn t they call and make an appointment? Am I in trouble? One thought that will not likely go through your mind is this: I need to call my attorney. The reason for that is simple: most business owners are used to solving problems by employing obvious and simple solutions and turning on their best customer service skills to nip problems in the bud. Consequently, you walk into the lobby to meet your guests, show them into your office (or preferably to a conference room), sit them down, offer them a cup of coffee from your brand new Keurig machine, ask how you can help and wait for a response. Little do you know that the DOL is already five steps ahead of you, and they are waiting to pounce. These DOL investigators come armed with the tools of their trade, starting with a detailed, comprehensive, all-encompassing request for documents that would take hours, days or maybe even longer to compile. They are not impressed with your graciousness; they want blood, and they want it now. At this point, most business owners are still thinking they have it under control. Just give the DOL what they want, and they will go away. If only it were that simple. This is just the tip of the iceberg, the first shot across the bow. Your business is now in the DOL s sight, and the DOL will not leave without their pound of flesh. If you have not thought about bringing in legal counsel before, now is the time to make the call. You may be wondering how the DOL chose your business. Usually, the DOL will act on either an anonymous complaint, a follow-up from a prior investigation, or a focused concentration on businesses similar to yours. The anonymous complaint is usually made by a current or former disgruntled employee who believes that you are not paying what you owe him. Chances are, if you are not paying one employee in accordance with the law, then you are probably making the same errors across the board. The followup investigation comes after a prior investigation, just when you thought the DOL was through with you. Continued on page 17 13

14 Metatags and Keyword Tags in Business and Trademark Litigation by Mark R. Osherow, Esq. With the ongoing proliferation of the use of metatags and keyword tags to market various business interests through the Internet, risks of trademark infringement and interference with competitive advantages have also increased. The use of metatags and keyword tags must therefore be undertaken carefully so as not to potentially infringe another business's ownership over its trade names and trademarks, based upon registration or prior use. Indeed, businesses must be ever vigilant to protect themselves from the unauthorized use of their names and marks by unscrupulous competitors seeking to obtain a business advantage, to which they may otherwise not be entitled. The issues often involve a court's consideration of computer code (usually in the form of metatags, keywords, or keyword tags) that the Internet user does not see on-screen, but that provides more favorable placement on a search result list for a plaintiff s product or service, or that activates a pop-up advertisement for the competitor s product or service. Metatags are hidden words that are used within the hypertext mark-up language (HTML computer code) that is used to program and compose a webpage. But does the use of another's trademarks and trade names in metatags and keyword tags such as those used through Google s AdWords program 1 and through similar Internet advertising and search engine vehicles, involve actionable activity for which both the potential violator and the owner must be vigilant or face potential litigation on the one hand or loss of business on the other? Although there is authority on both sides, the courts have begun to shape the law in this area overwhelmingly coming down in favor of enforcement under the Lanham Act, the federal enforcement mechanism for trademarks, although a case by case assessment is required, focusing principally upon the initial interest confusion doctrine, to find that there is a violation of the Act through use in the stream of commerce. In the often cited Brookfield Communications case 2 the court upheld initial interest confusion based upon the use of another s trademarks in metatags. In rendering this finding, the court looked not at the actual direct visible use or publication of the trademark by a competitor to the public but at the increased likelihood that the web user would be directed to the competitor s web site (due to unauthorized use of hidden metatags or keywords) and might actually choose to do business with the competitor based upon convenience, rather than the goodwill created by the plaintiff s mark. In construing these issues, the courts have considered whether these modalities constitute use in commerce under the Lanham Act which provides federal trademark protection. The prevailing view outside of the Second Circuit is based upon the conclusion that sponsored linking (which did not exist when the Lanham Act was created) entails the type of use of the plaintiff s mark contemplated by the Act as part of an advertising mechanism, and therefore is precluded. 3 The concern in the cyberspace context is that potential customers of one website are intentionally diverted through the use of metatags utilizing the protected trademarks of a competitor, resulting in the potential customer believing that the website to which the potential customer is diverted is associated with the business for which the consumer was in fact searching. 4 The relevant portion of the Lanham Act provides that (1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, symbol, or device, or any combination thereof, or any false designation of origin, of false or misleading description of fact, or false or misleading representation of fact which (A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection or association of such person with another person, or as to the origin, sponsorship, or approval of his goods, services or commercial activities by another person, or (B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities or geographic origin of his or her or another person s goods, services, or commercial activities, shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such act. The affirmative use of another s mark as a metatag or keyword tag causes the potential for bringing customers to the infringer s web site, but for the use of another s mark, and even if the customers later realize the confusion. Nevertheless, in finding that the use of another s trademarks in metatags under the initial confusion doctrine, courts often apply an eight factor inquiry, including (1) the strength of the plaintiff s mark; (2) the interrelatedness of the goods or services; (3) the similarity of the marks; (4) evidence of actual confusion (or initial-interest confusion in this context); (5) marketing channels utilized; (6) likely degree of purchaser care; (7) the defendant s intent in selecting the mark; and (8) likelihood of expansion of product lines. 5 These factors are significant in the court s evaluation of whether the mark is valid, incontestable and at least somewhat distinctive, resulting in likely confusion; whether the products of the parties are direct competitors; whether initial interest confusion is likely; whether the parties both use the Internet to market their products or services; whether purchaser care is minimally significant; whether there is at least circumstantial evidence that the infringer knew of the infringed-upon mark when it was utilized by the defendant; and whether there is little significance to product line expansion. Indeed, additional defensive arguments of fair use may be refuted where the use of another s metatags (or keywords) is not in good faith but was utilized in a bait-andswitch sense and to create what has become known as initial interest confusion, and sometimes initial source confusion. While the vast majority of the federal circuits that have addressed these types of issues have found violations of the Lanham Act based upon the initial interest confusion doctrine, the courts in the Second Circuit have held fast to a strikingly adverse approach finding no basis for a Lanham Act violation. In the Contacts case 6, which has been followed closely in the Second Circuit, the court unequivocally ruled that since use within the meaning of the Lanham Act must be determined as a threshold matter, the plaintiff s trademark violation claim failed. Thus, the court in Contacts determined, contrary to the other circuits addressing the issue, that without actual display or actual publication of the allegedly volatile trademark to the consumer there could be no violation of the Lanham Act, resulting in a finding that even where there is initial source or interest confusion, there can be no trademark infringement under the Lanham Act. Continued on page 19 14

15 QED article continued from page 6 There are deletions, alterations, inclusions, and other aspects that must be considered, as well. The evaluation of letter formations, pen strokes, pen pressure, spacing, letter height, relation to the baseline, and slant are all part of the evaluation process. When a document is typewritten, there are other problems to consider. Was a page added after the fact? Is the page a copy? Did someone possibly apply white out on the original, type over it, and then make a copy so that it looks like an original? Was another typewriter used to make the forgery or the added page? What about a computer-generated document? Are the pages all from the same ream of paper? With technology such as infrared and ultraviolet light sources, these questions can be answered. On a daily basis, document examiners are faced with a multitude of questioned-document problems. The most common cases, for example, involve forged checks, forged wills, graffiti, credit-card fraud, leases, deeds, contracts to purchase items including homes, cars, and businesses mortgage fraud, disguised writing, and poison-pen letters (hate letters). With the improved technology of printers and copiers, forging and counterfeiting is rampant through the use of cut and paste and lifting signatures. It is well known that the field of digital science is constantly evolving. As new technology becomes available, the document examiner must stay on top of the latest state-of-the-art and work to anticipate the ways criminals may use new technology to their advantage. The certified forensic document examiner must utilize all the latest techniques and technology that science has to offer when examining questioned documents. When investigating digital crimes crimes such as forged passports, driver s licenses, computergenerated documents, and digital images inserted into other items document examiners are referred to as digital-crime investigators. Comparative Ink Analysis. The newest technology today is found in comparative ink analysis equipment. One very useful forensic tool in pen-formula differentiation is ink analysis that involves the determination of chemicals specific to certain types of compounds. One method used to identify a certain kind of ballpoint-pen ink is called thin-layer chromatography. The process involves using an ultravioletvisible photodiode array detector that allows for the dye components to be rapidly separated. A standard is a known authentic sample from which comparisons are made. The United States Secret Service and the Internal Revenue Service (IRS) jointly maintain the International Ink Library. This collection includes more than 9,500 inks, dating from the 1920s. New inks are chemically tested and added to this database on a regular basis. This reference serves as a great resource for the detection of fraudulent signatures and documents. In the comparison of inks, chemical analysis can be useful in a number of cases, such as medical charts, tax evasion, insurance fraud, altered checks, counterfeiting, and other types of forgeries or frauds. A 2004 article from the Associated Press referenced ink-comparison evidence as one piece of evidence that assisted in the high profile conviction of Martha Stewart. Examination of the ink on a document showed that an entry was made at a different time, possibly as an attempt to cover up insider-trading violations. Aging Papers and Inks. The age of paper and ink can provide important clues when attempting to verify and authenticate a document. A key example was the Hitler Diaries case from the 1980s one that involved purported diaries written by Adolf Hitler. The document examiner in the case unknowingly compared forged writing to the writing of the diaries. Taking the authentication and investigation one step further, the diaries were sent to a laboratory where the paper and ink was analyzed. It was proven conclusively that the document could not have been written by Hitler, since there were chemical compounds discovered in the paper of the book s cover that were not available when Hitler was alive. The age of paper can be determined according to the additives and chemicals or by watermarks. The Hitler Diaries, as well as many other questioned historical papers, have been debunked, while others have been authenticated. Two new methods of determining the relative age of ballpoint inks has recently come to the forefront in forensic document examination. Studies have shown that different inks have different drying times. The new method for analyzing the drying time of ink is done by chemical analysis. Unfortunately, this is a destructive process. These new developments are extremely important when examining ledger or medical-record entries. It has been established that the longer ink has been on a sheet of paper, the slower it will dissolve in the various solvents used to analyze them. It is now possible to identify the age of ink to within a six-month period. This new process of dating the age of inks has had dramatic impact on the examination and detection of backdated documents. Many malpractice cases have been won due to the analysis of ink on questioned medical records. Infrared Comparisons. Infrared-imaging equipment and infrared photography have given the document examiner an exciting new world of technology for investigating cases. Although this is not a new concept, the technology has been refined and taken to mind-boggling new heights. The mechanics behind infrared are quite simple. The human eye perceives the reflected portion of the light spectrum. But there is much more of the spectrum that the human eye cannot see. For instance, when we see a rainbow, we are not seeing all the colors that exist. We see only red, orange, yellow, green, blue, indigo and violet. The colors on each side of the rainbow that we cannot see with the naked eye are the ultraviolet (UV) and infrared (IR) areas. The instruments we need to convert UV and IR wavelengths of the light spectrum into visible images for the human eye are called video spectral comparators and forensic imaging spectrometers. This equipment is used for nondestructive analysis of questioned documents in the presence of seemingly equal but physically different features of writing. With IR and UV, we can see through writing that has been blacked out or obscured by white out, as well as scribbled-out writing. With split-screen and overlay software, direct visual comparison can be made of several individual images. Erased elements or chemically altered characters can be easily detected with IR and UV technology. The exceptional sensitivity and broad spectral range can detect even the slightest differences in similar inks, not seen by the unaided eye. This equipment is at the highest level of authentication technology available today. Continued on next page 15

16 QED article continued from page 5 Obliterated, faded, or altered writing can also be detected with IR and UV analysis. In a recent case handled by the IRS, the IRS claimed the defendant could not prove an expense he had written off for office equipment because the receipt had faded. The paper was old and the writing was invisible. Under an IR filter, the blank receipt luminesced, showing writing that was outside the wave- length of visible light to the naked eye. Electrostatic Detection Apparatus. Another valuable piece of equipment to the document examiner is an electrostatic detection apparatus (ESDA). With an ESDA and specialized infrared sidelighting photographic techniques, the characteristic indentations found in writing may prove that the writing was traced. In addition, when the top page of a pad that has been written on is removed, the blank writing underneath can be processed with an ESDA to show the writing by the indentations on the pages below. Research performed by the John Jay College of Criminal Justice in New York City indicates that an ESDA can recover indented impressions from documents that were written up to 60 years earlier. The technology behind the ESDA is fairly simple: To develop the indentations on paper, the indented paper is placed in a high-humidity device and transferred onto a bronze vacuum plate. The page is then carefully covered with a Mylar (transparent, non-conducting) film. The page is then electrically charged so that toner will adhere to the impressions when applied to the Mylar covering. The final step is to pour the toner on the Mylar. This process develops the page containing the various indentations. An example of the use of an ESDA in a recent case involved a bust on a PCP drug lab. Although there was no paper evidence at the scene of the raid, the telephone book at the scene was analyzed and, in the end, it held the incriminating evidence only visible by use of the ESDA. An astute investigator noticed a telephone book on the counter where the drugs were being processed. On the cover of the phone book were slight indentations that appeared to be writing. The indentations were restored by ESDA and the writing was compared to that of the known chief chemist of the PCP lab. The writing the ESDA retrieved was the chemical formulas, written by the chief chemist. Busted! As an investigator, you need to think outside the parameters of visible evidence. Evidence to solve your case may be right in front of you and may easily go unnoticed. In this case of the PCP lab, the real incriminating evidence was truly invisible. If not for the trained eye of the investigator, the case may have been dismissed for lack of solid evidence that could link the suspect with the actual manufacturer of the drugs. As an advocate of the court, the document examiner is relied upon to dispel any doubts about a questioned document. Sometimes, the examiner simply will not be able to render an opinion on certain documents. In those instances, the document examiner s letter of opinion will state an explicit explanation. From murder scenes where notes are left behind, to kidnappings, to whitecollar crimes such as forged checks, document examiners, investigators, and the technology they utilize prove to be a formidable team. Questioned documents are a global issue. As investigators, you must be cognizant of the technologically advanced level of the criminals we face today. We must use all of the intelligence, the technology, and the resources available to educate ourselves on the topic of continually evolving criminal minds. E lyn Bryan is a court-qualified and certified document examiner through the National Questioned Document Association. She is the current President and cofounder of the Scientific Association of Forensic Examiners, past member of WAD and past president and current Board member of SFIA. 16

17 Income Tax Consequences... Continued from page 6 It is important to include language in court documents, attorney correspondence, and settlement agreements, as applicable, explicitly stating to what extent, if any, the plaintiff s claims and payments received relate to physical injury or physical sickness. Based on Medina, and a myriad of tax cases like it, failure to include such language or leaving ambiguous language may result in the payment being fully taxable. 1 See Church v. C.I.R., 80 TC 1104 (1976) (holding that compensatory damages for great public embarrassment, humiliation, and emotional distress suffered as a result of defamation constituted personal injuries within the meaning of Code 104(a)(2) and, therefore, such damages were not included in gross income) USC 104(a)(2) CFR (c)(1) USC 104 flush language. 5 H.R. Conf. Rept. No , at 301 n.56 (1996), C.B. 741, See M. Blackwood, et ux. v. C.I.R., TC Memo (2012) (holding that taxpayer s increased depression resulting from her wrongful termination, including nausea, migraines, and insomnia, were not considered physical injuries or sickness); c.f. Julie L. Domeny v. C.I.R., TC Memo (2010) (holding that damages received due to multiple sclerosis flare up after taxpayer s employment termination, causing her be unable to work for more than a year, was a physical injury and such damages were not included in income). Mitchell W. Goldberg is an attorney at Gutter Chaves Josepher Rubin Forman Fleisher Miller, P.A. in Boca Raton. Florida Guns at Work Law continued from page 11 and which encourages employers to prevent gun-related workplace injuries. The Amendments criminally prohibit an effective method of reducing gun-related workplace injuries and cannot coexist with federal obligations and objectives. The Amendments are therefore enjoined to the extent they are preempted by the OSH Act. On April 21, 2008, the Florida Chamber of Commerce filed a lawsuit challenging the constitutionality and legality of Florida s new statute. In that reported case, titled Florida Retail Federation, Inc. v. Attorney General of Florida, 576 F. Supp. 2d 1301 (N.D. Fla. 2008) the Florida Guns At Work statute was held to be valid as it pertains to employees, and the Court declined to follow the decision regarding the Oklahoma statute and found that OSHA does not mandate that businesses must ban guns from parking lots. As the Florida law has been held to be enforceable, employers should review and evaluate their practices to confirm if they are complying with the statute s requirements by: (a) reviewing all references in employee handbooks or policies that prohibit firearms in the workplace and revising them to exclude parking areas from any such restriction; (b) changing job application forms and notifying supervisors to avoid asking questions about weapons licenses; (c) agencies that perform background checks should not ask whether employees or prospective employees have concealed weapons licenses; and (d) human resources personnel, supervisors, and business owners should be aware of the law s limitations on vehicle searches on the employer s parking lots, as well as the increased risk of violence that guns being present on business premises may create, particularly when adverse action is being taken by the employer as to an employee. Larry Corman, Esquire, is a shareholder with Greenspoon Marder, Boca Raton. Mr. Corman is presently the Immediate Past President of the South Palm Beach County Bar Association. 17

18 DOL article continued from page 13 The DOL loves to pop in to make sure that you are following through with all the things required under the law like keeping accurate time and payroll records, making sure hourly employees are getting paid time and one-half for overtime hours worked each week, not docking employees who work through lunch, etc. (you know, all the things for which you were cited and paid dearly for previously). The third type of investigation commences with the DOL s decision to focus on specific industries in the local geographic area based on a history of reported violations. Some South Florida industries that have been on the DOL s radar in the past include restaurants (especially those with tip pools), farms and nurseries, dry cleaners, home health agencies, etc. So even if you did not think about calling your attorney before you offered the DOL investigators a seat in your conference room and a cup of coffee, do not fear. A skilled labor & employment law attorney can help you communicate with, respond to and negotiate an exchange of documents (and more) with the DOL. A labor & employment attorney speaks the DOL s language and is invaluable in these type of situations. Regardless whether you hire an attorney before you meet the DOL investigator, after you provide copies of all your business financial statements and tax returns or after the DOL has determined that you owe hundreds of thousands of dollars in back wages and penalties, a seasoned labor & employment attorney will be able to help. Ellen Leibovitch is an attorney at Assouline & Berlowe's, Boca Raton office and practices in the areas of Business Litigation and Dispute Resolution and Labor and Employment Top 10 Reasons to Join the South Palm Beach County Bar Association 1. Lunches with time to network with other attorneys and members of the Judiciary committees dedicated to specific practice areas for professional development 3. Young Lawyers Section 4. SOLO/Small Law Firm Networking Group 5. Webpage at 6. Annual Holiday Party, Golf Tournament, Installation Gala and Bench-Barrister Tennis Bash 7. Free (or reduced cost) CLE Events 8. Website listing on our webpage ( by area of practice 9. Ability to make your voice heard and counted in consideration of local legal issues 10. Weekly blasts with all upcoming events SUPPORT YOUR LOCAL BAR ASSOCIATION! Membership with the SPBCBA is a valuable tool! Don t miss the opportunity to participate in many active committees, monthly luncheons, quality CLE seminars, networking events, quarterly newsletters, weekly updates and many special events. Visit our website for more information! 18

19 Metatags continued from page 14 In Site Pro-1 7, following Contacts, while acknowledging that many of the circuits had sustained such claims, the court ruled that placing a competitor s trademark in the metadata or keyword tags of its website or improperly including the plaintiff s trademark in a search engine algorithm was not trademark infringement under the Lanham Act. The court ruled that the use of the trademark in this way was not utilizing another s trademark in a way that indicates source or origin, for Lanham Act purposes. Accordingly, the Site Pro-1 court held that the allegedly volatile uses of another s marks in these manners was not use within the meaning of the Lanham Act, because of lack of actual publication of the infringed trademark to the consumer. Thus the Site Pro-1 court essentially concluded that there could be no such "use" for Lanham Act purposes without actual display of the trademark to the consumer. Indeed, the court rejected the initial source confusion doctrine, back to Brookfield Communications and all subsequent cases following Brookfield Communications, based upon Contacts. While this author believes this narrow construction fails to account for the actual conduct of the violators in the modern Internet age, the position advanced by the Second Circuit is still of concern in its application since the Supreme Court has yet to rule on the issue. Indeed, should the Supreme Court decide not to hear the issue should it be presented in the future, that would seem to be a strong endorsement for the view repeatedly asserted outside of the Second Circuit, including by Florida s federal courts See, e.g., J.G. Wentworth, S.S.C. Limited Partnership v. Settlement Funding LLC, 2007 WL 30115, *2 ( E.D. Pa ( Google s AdWords Program is a keyword-triggered advertising program that generates the Sponsored Links section of the Search-results screen. Advertisers participating in the AdWord Program purchase or bid on certain keywords paying Google for the right to have links to their websites displayed in the Sponsored Links section whenever an internet user clicks on a particular Sponsored Link. Google charges a fee to the AdWords participant associated with that linked website. Businesses often participate in the AdWords program to generate more visits to their websites. ) 2. Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999). However, the decision in Playboy Enterprises, Inc. v. Calvin Designer Label, 985 F. Supp (N.D. Cal. 1997) represents the first court decision to generally address the issue and grant injunctive relief for the violations. 3. Boston Duck Tours, LP v. Super Duck Tours, 527 F.Supp.2d 205, 207 (D. Mass. 2007); North Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211, 1216 n.2 (11th Cir. 2008) (metatags are use in commerce under plain meaning of Lanham Act, where they were used for purpose of effort to promote and advertise the defendant s products on the Internet). 4. Bihari v. Gross, 119 F. Supp.2d 309 (S.D.N.Y. 2000). 5. Tdata Inc. v. Aircraft Technical Publishers, 411 F. Supp.2d 901 (S.D. Ohio 2006) Contacts, Inc. v. Inc., 414 F.3d 400 (2d Cir. 2005). 7. Site Pro-1 v. Better Metal, LLC, 506 F. Supp. 2d 123 (E.D.N.Y. 2007). 8. See, e.g., North Am. Med. Corp. v. Axiom Worldwide, Inc., 522 F.3d 1211 (11th Cir. 2008); Sound Surgical Technologies, LLC v. Rubenstein, 734 F.Supp.2d 1262 (M.D. Fla. 2010). Mark R. Osherow is Of Counsel with the statewide law firm Broad and Cassel in its West Palm Beach office. He is board certified as a specialist in business litigation by The Florida Bar and is currently the Treasurer of the South Palm Beach County Bar Association. The South Palm Beach County Bar Association also welcomes your comments and submissions on topics relating to the law, the practice of law, the legal profession, the SPBCBA and The Advocate, and general interest items relating to our membership. All items published are at the sole discretion of the SPBCBA. Letters must be signed but names will be withheld upon request. The editors reserve the right to condense. Please send all submissions to: The South Palm Beach County Bar Association at 9858 Glades Road, #189, Boca Raton, FL, 33434, or to Submitted items will not be returned. The South Palm Beach County Bar Association is a Florida not for profit voluntary bar association established in the year The organization was established to foster a shared commitment to excellence in the law, while enhancing the skills of its members through education, networking, and community outreach. We serve as the voice of South Palm Beach County attorneys to other organizations, governmental entities and the public. One of the most significant benefits of membership in the South Palm Beach County Bar Association is the ability to join committees. In addition to earning CLE credits, participation enables members to stay current on recent developments in their specific areas of practice. Join us for lunch at our "member favorite" Monthly Luncheon Series, which includes past speakers such as Florida Supreme Court Justices, United States Congresspersons and Senators. We strive to offer our members the highest quality of service. If we can assist you in any way, please call or us. The South Palm Beach County Bar Association looks forward to serving you and invites you to check in with us often for news and updates. 19 Views and conclusions expressed in articles and advertisements in The Advocate, and any other publication of the South Palm Beach County Bar Association, are those of the authors or advertisers and not necessarily those of the officers, directors or staff of the South Palm Beach County Bar Association. Further, the South Palm Beach County Bar Association, its officers, directors and staff do not endorse any position, product or service advertised. Our copy deadline is at the discretion of the Editorial Board, but is generally two weeks before the announced publication date. At this time The Advocate is being published on-line and disseminated via only, although the Association reserves the right to publish by other means at any time, and to maintain a depository for all items published, through its website, or otherwise.

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