Kluger Kaplan Announces Midwest Expansion Plan, Opens Minneapolis Office

Dan Rosen

Miami-based litigation firm Kluger, Kaplan, Silverman, Katzen & Levine announces its plans to expand into the Midwest market, with prominent litigator Daniel Rosen joining the firm on May 1 and serving as partner-in-charge of its new Minneapolis office.  The move marks the firm’s first physical footprint outside of the South Florida market and is designed to support the litigation powerhouse’s existing national practice, while creating a deeper platform across the Midwest.

With more than 30 attorneys in South Florida, Kluger Kaplan has built a national reputation for handling high-stakes business and commercial litigation disputes, including securities and financial fraud, probate, class actions, complex matrimonial, probate and trust litigation.   The firm’s attorneys serve as lead counsel in trials in federal and state courts across the country, and are consistently recognized by Chambers USA, Super Lawyers and Best Lawyers in America.  The firm was recently named a Top Litigation Firm by the Daily Business Review, an ALM-affiliate and sister publication to the American Lawyer, Corporate Counsel and National Law Journal. 

“Minneapolis is one of the fastest growing metropolitan cities in the country, with roughly 3.5 million people, major corporate headquarters, and a diverse economic base,” said Alan Kluger.  “This move will allow us to tap into the region’s unlimited growth potential, while better aligning our geographic footprint with our clients’ interests.”

According to the Bureau of Economic Analysis, in 2015, Minnesota’s gross domestic product (GDP) was $328.3 billion, ranking 17th in the U.S.  Additionally, 17 of the Fortune 500 companies are based in Minnesota, including General Mills, Target, Land O’Lakes, Hormel Foods, Best Buy and 3M. Yet despite the city’s robust economy, Mr. Kluger says that most law firms have traditionally eschewed the market in favor of major ‘power’ centers such as New York, Boston and Washington, D.C.

“Minneapolis is well-regarded for its sophisticated court system, highly experienced bench and bevy of major national corporations – but continues to be overlooked by the big litigation firms,” said Abbey Kaplan, founding partner of Kluger Kaplan. “Dan’s esteemed reputation, coupled with our resources, will bring immediate value to our existing clients and fill a need in this underserved market.”

Mr. Rosen previously served as partner of Parker Rosen, where he established his reputation as a veteran trial lawyer and advocate for some of Minnesota’s largest businesses and national corporations.  With 23 years of courtroom experience, Mr. Rosen focuses his practice on complex commercial and real estate litigation.  Prior to becoming a lawyer, he was an officer in the U.S. Navy.

As the leading Minnesota lawyer representing property owners in eminent domain takings, he successfully represented international developer, Hines Interests, in the largest eminent domain case in the state’s history.  Additionally, he has garnered a reputation for representing major national corporations with interests in the Midwest, including Exxon Mobil, Walgreens, Sears Holdings and Kmart.

“Coming to Kluger Kaplan is a natural fit and aligns seamlessly with my clients’ needs and interests,” said Mr. Rosen. “By combining forces, we can deliver exceptional legal counsel while creating a platform for additional growth across the Midwest.”

Mr. Rosen is a recognized force in the Minnesota business and civic communities.  He currently serves as Chairman of the Minnesota Campaign Finance and Public Disclosure Board, which is a governor-appointed position tasked with regulating campaign finance and lobbyist activities in state campaign. Additionally, he is the past chairman of the Minnesota Council of the American-Israel Public Affairs Committee (AIPAC) and is a member of the organization’s National Council.

Kluger Kaplan’s Minneapolis office will be temporarily located at 80 South 8th Street, before moving to a permanent location in the city’s downtown district. The firm also anticipates opening subsequent locations across the Midwest, such as Chicago and St. Louis.

5 Questions with Christina I. Echeverri: Why Divorce & Electronics Don’t Mix

 

Introducing our KK Q&A series. Over the coming months, look out for monthly Q&A posts with Kluger Kaplan associates, digging in about some of the most interesting parts of their practices. Something special you’re dying to ask an associate or learn more about? Send us a message and we’d be happy to include it.

 

Cell phones don’t seem to leave our hands these days. Amazing new technology, devices and apps have made it so much easier to improve efficiency and stay constantly connected. But there is a negative side to technology that’s become unavoidable. We’ve all been guilty at times of being caught up in the online world and ignoring the real world around us. So, we sat down with Christina I. Echeverri in our family law group to find out about how everyone’s favorite devices have had an impact on the world of divorce.

Cell Phones

1. What role does technology play in divorce cases?

For better or worse, technology has clearly effected almost every aspect of our lives. In the divorce world, however, I see it playing a role in two different ways. There are situations where my clients have chosen to file for divorce as a result of technology, and then there are clients’ divorce cases that are impaired and intensified because of technology.

2. How is that changing divorce proceedings?

Ironically, I’ve found that technology has led to a lack of communication. People are complaining that their spouse isn’t “present” – spending too much time glued to their phone, iPad, Apple Watch or the like, tablet or computer.  It has also become much harder for cheating or deceitful spouses to hide their faults. Social media plays a huge role. Remember, the internet remembers everything and “private” doesn’t always stay private. The biggest problem I’ve come across recently is that spouses are not realizing that when you write something on one device, it can also be seen in other places, and these devices do not always talk to each other. I’ve had two cases recently, where a spouse found incriminating text messages on an Apple Watch that the cheating spouse thought were deleted. Often times we come across one spouse obtaining personal information that spouse did not want the other spouse to have, such as bank or credit card statements, or a list of that spouse’s bank accounts simply because they left the information in plain view on a family computer. In many cases, this information has been instrumental to the spouse who obtained the information and has assisted with the discovery of additional funds or discovery of dissipation of assets during the litigation.

3. What should individuals know about protecting their privacy through technology during a divorce proceeding?

Individuals considering divorce or in the midst of divorce should be overly cautious about keeping private information private. Just as one would avoid case-related discussions within an earshot of the spouse, one should avoid leaving information where a spouse might have access.  Otherwise, you are potentially setting yourself up for a legal battle and giving your spouse either ammunition to file divorce proceedings or to rely on the information in divorce proceedings. There are easy ways to safeguard personal technology – passwords on cellphones and smart watches, ensuring a deleted text message is deleted on all devices (don’t trust them to sync), and a heightened level of care when it comes to protecting private information. Above all else, the safest way to avoid trouble with technology is to keep private communications old-fashioned: face to face or on the phone.

4. Have new technologies effected how attorneys handle divorce cases?

Lawyers have adapted their communication methods just as the rest of the world has, which means sometimes we communicate with our clients through text message. This can become troublesome in divorce cases since divorce is such a sensitive matter, with opponents living such intertwined lives. For example, if a client was planning a divorce and still living in the same house as their spouse, seeing a text message from a divorce lawyer on the client’s phone could be problematic. There is the possibility that the spouse may learn tactics or overhear private conversations, which can create another layer of issues during the divorce proceedings. Hence, we counsel our clients to be wary of the access their spouse may have to their electronic devices, especially email access on family computers (sometimes allowing for automatic login), shared ICloud accounts and syncing devices.

5. What advice would you give a client or potential client regarding technology in their marriage or divorce?

Technology has its drawbacks. With regards to technology in marriages, too many times it becomes a substitute for communication and the marriage takes a downward spiral. My recommendation is to put the phone away, don’t wear a Bluetooth watch, and go back to the old way of communicating with your spouse. Be an active participant in the marriage. With regards to technology and privacy during the marriage or divorce proceedings, I hope it goes without saying, my foremost recommendation is not to cheat in the first place. But if you find yourself in that situation, be thoughtful about protecting private information. If you must communicate via an electronic device, whether it be with your counsel or personal conversations, secure your information by familiarizing yourself with the syncing capabilities of all of your devices and remove automatic login options for emails on your family computer or tablet.

Christina EcheverriChristina Echeverri practices in Kluger Kaplan’s family law group, handling all aspects of divorce, post judgment proceedings, enforcement proceedings, paternity actions and prenuptial and postnuptial agreements.

Daily Business Review: Florida Standard for Expert Opinions Uncertain After Decision

Kluger Kaplan associate, Gina Rhodes, is featured in today’s Daily Business Review Board of Contributors Column:

Florida Standard for Expert Opinions Uncertain After Decision

Commentary by Gina Rhodes, Daily Business Review

Gina Rhodes

On Feb. 16, the Florida Supreme Court declined to adopt the 2013 amendments to the Florida Evidence Code which replaced Frye standard for expert witnesses with the Daubert standard.

In its opinion, the court stated, “We decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy.” The ruling shows the interplay between the Florida Supreme Court and the Florida Legislature may create confusion and uncertainty about the standard attorneys and judges should apply for expert witness opinions going forward.

In 2013, the Florida Legislature amended the Florida Evidence Code Sections 90.702 and 90.704 regarding expert opinions. The purpose of the amendments was for Florida to shift from the Frye standard to the Daubert standard for expert witness opinions in order to put Florida in line with the federal courts and most states. Under the Frye standard, an expert opinion based on a scientific technique was admissible only if such technique was “generally accepted” as reliable in the relevant scientific community. Under Daubert, the standard is arguably broader.

The amended version of Section 90.702 adds that an expert witness can testify if: “The testimony is based upon sufficient facts or data; the testimony is the product of reliable principles and methods; and the witness has applied the principles and methods reliably to the facts of the case.” Section 90.704 was also amended to prevent inadmissible evidence from being disclosed to the jury through an expert opinion unless the probative value “in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.” The Daubert standard has governed the admissibility of expert witness testimony since the statutes were amended.

The Ruling

In declining to adopt the 2013 versions of the amended sections, the court explained that even though it is the policy to adopt provisions of the Florida Evidence Code “as they are enacted and amended by the Legislature,” “on occasion the court has declined to adopt legislative changes … because of significant concerns about the amendments, including concerns about the constitutionality of an amendment.”

The court noted the committee recommended by a 16-14 majority not to adopt the amendments and “in support of its recommendation, both the committee and commenters … raised what we consider ‘grave constitutional concerns.’ ” The concerns were not discussed in detail in the opinion but touched upon the constitutional right to a jury trial and denying access to the courts.

Justice Ricky Polston, concurring in part and dissenting in part, disagreed with the majority for failing to replace the Frye standard with the Daubert standard, honing in on the fact that the Daubert standard is followed not only in federal courts but also in “36 states.” Polston continued, stating he knew of “no reported decisions that have held that the Daubert standard violates the constitutional guarantees of a jury trial and access to courts” and in fact cited to case law across the nation stating the opposite.

Overall, unless and until the Daubert standard is challenged in a “proper case or controversy” where the Florida Supreme Court has an opportunity to review the constitutional issues it referenced, the ruling could have a substantial impact in the trial courts.

For example, when a party objects to the admissibility of an expert witness opinion based upon the Daubert standard, the opposing party may argue that, based on the court’s ruling, the Daubert amendments are unconstitutional. A party seeking to admit expert testimony could also argue that the amendments are procedural in nature, and because they were not adopted by the Florida Supreme Court, the court should use the Frye standard in ruling on the motion.

Appeals of trial and appellate court rulings on these issues could lead to a determination by the Florida Supreme Court regarding the constitutionality of the Daubert amendments. However, until then, it appears this ruling is likely to cause confusion in courts across the state in applying the standard for admitting, challenging or excluding expert opinions under the Florida Evidence Code.

Gina Rhodes is an associate at Kluger, Kaplan, Silverman, Katzen & Levine in Miami. She focuses her practice on commercial litigation disputes in both state and federal court.

http://www.dailybusinessreview.com/home/id=1202780599068/Florida-Standard-for-Expert-Opinions-Uncertain-After-Decision?mcode=1202629277012&curindex=1

Standard for Expert Opinions Uncertain in Light of the Supreme Court of Florida’s Recent Decision

 

Case

The Florida Supreme Court has declined to follow the Florida Legislature’s decision around expert witness testimony requirements. On February 16, 2017, the Supreme Court of Florida declined to adopt the 2013 amendments to the Florida Evidence Code which replaced the Frye standard for expert witnesses with the Daubert standard. The ruling shows that the interplay between the Florida Supreme Court and the Florida Legislature may create confusion and uncertainty for attorneys and judges about the standard they should apply for expert witness opinions going forward.

 

Florida Supreme Court

 

Background

In January 2013, the Florida Legislature amended the Florida Evidence Code regarding expert opinions. The purpose of the amendment was for Florida to shift from the Frye standard to the Daubert standard for expert witness opinions, in order to put Florida in line with the federal courts and most states. What’s the difference between the two?

  • The Frye Standard: an expert opinion based on a scientific technique is only admissible if such technique was “generally accepted” as reliable in the relevant scientific community.
  • The Daubert Standard: a more stringent and slow process, which requires additional hearings to determine the validity of expert opinion.

 

Ruling

The FL Supreme Court declined to adopt the new amendments, and therefore Florida will continue to use the Frye standard, unless or until challenged in a “proper case or controversy” where the Supreme Court of Florida has an opportunity to review the constitutional issues it referenced. The Court explained that even though it is the policy to adopt provisions of the Florida Evidence Code as the Legislature suggests, they have declined to on occasion “because of significant concerns about the amendments, including concerns about the constitutionality of an amendment.”

The Court noted ‘grave constitutional concerns’ with the change. The concerns were not discussed in detail in the opinion, but touched upon the constitutional right to a jury trial and denying access to the courts.

Justice Polston, concurring in part and dissenting in part, disagreed with the majority for rejecting to replace the Frye standard, honing in on the fact that the Daubert standard is followed not only in federal courts, but also in “36 states.” Justice Polston continued, stating he knew of “no reported decisions that have held that the Daubert standard violates the constitutional guarantees” and in fact, cited to case law across the nation stating the opposite.

 

Impact

The ruling could have a substantial impact in the trial courts. For example, when a party objects to the admissibility of an expert witness opinion based upon the Daubert standard, the opposing party may argue that, based on the Court’s ruling, the Daubert amendments are unconstitutional. A party seeking to admit expert testimony could also argue that the amendments are procedural in nature, and because they were not adopted by the Supreme Court of Florida, the court should use the Frye standard in ruling on the motion.

Unless or until the FL Supreme Court rules differently on the issue, it appears this ruling is likely to cause confusion in courts across the state in applying the standard for admitting, challenging, or excluding expert opinions under the Florida Evidence Code.

 

 

Gina RhodesGina Rhodes is an associate at Kluger, Kaplan, Silverman, Katzen & Levine, P.L. and focuses her practice on commercial litigation disputes in both state and federal court.

Defend Trade Secrets Act: The New Federal Civil Cause of Action for Trade Secret Misappropriation

Although owners of intellectual property, such as copyright, patents, and trademarks, have long had civil redress in federal courts, trade secret litigants have been the “odd man out,” so to speak, of the intellectual property world. However, this omission in the federal landscape was not due to lack of need, as the constant development of technology and growing trend of employee mobility has resulted in an unprecedented level of threat to companies’ trade secrets. Consequently, the Defend Trade Secrets Act (DTSA) was born and signed into law in May 2016. Albeit, the DTSA is not the first time federal lawmakers have addressed the need for trade secret protection, as the new act amends the Economic Espionage Act (EEA) established in 1996, which provides criminal penalties for the theft of trade secrets. The EEA may serve as a deterrent factor, however, until now trade secret owners were left without a federal private civil remedy.

Trade_Secrets_Kluger_Kaplan

The DTSA confers subject matter jurisdiction over civil actions involving trade secret misappropriation to U.S. district courts, thereby opening federal courts to litigants without invoking diversity or ancillary jurisdiction. In order to bring a claim under the DTSA, the misappropriated trade secret must be “related to a product or service used in, or intended for use in, interstate or foreign commerce.” 18 U.S.C. §1836(b)(1). Moreover, under the DTSA, the term “trade secret” is defined as:

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