Evolving Society, Evolving Law?

 

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.

The world is certainly different than it was 50 years ago. No longer is it the norm to get married, buy a house, have a family – in that order. In many places, gone are the days of nuclear family, picket fence suburbia, and instead, trading in for later in life marriages, children out of wedlock, and pre-marital cohabitation. In fact, Miami is among the highest numbers of non-married co-borrowers of new mortgages this year.

But has the law changed to accommodate the new norm? Not really. We asked Lindsay Haber, KKSKL associate and family and divorce law expert, about the effect societal changes have on the practice of law.

  1. What should unmarried couples be aware of when combining their lives?
    As couples are slower to rush down the aisle, couples should be considering legalities of purchasing cars and property together, mixing incomes, accumulating debts and much more. When any sort of comingling of finances occurs, there is no real recourse in a family court should an unmarried couple break up. A popular concern for unmarried co-habitating couples is buying a home together. The question of how to own property is something I frequently see unmarried couples struggle with. If a couple is married with no prenup, real property purchased during the marriage is generally considered marital property regardless of how titled. For an unmarried couple, however, there is no such presumption of jointly held ownership when an unmarried couple titles the property in one party’s name only.  There is limited recourse for the party not titled, yet who has helped purchase the real property, pay down the mortgage, and put money towards the upkeep of the property.
  1. From your perspective, has the law had any effect on families?
    The world is changing. People are not as quick to get married, which leads to more marriages later in life. More later-life marriages mean more life events happening prior to marriage, like opening your own business, inheriting money, and creating substantial debt (be it school or otherwise), and a more complicated union is born. This, in turn, is just one of the reasons couples should consider entering into a pre-nuptial agreement prior to marriage.
  1. How has the changing view of gender roles in a marriage effected family law?
    When most people think of a family going through a divorce or paternity matter, one of their first thoughts is “how much is the man going to have to pay?” But that’s no longer the case.  I have had quite a few cases this year where the wife or mother has been the breadwinner, has had to pay alimony to her now ex-husband, or will be paying her ex-husband or ex-boyfriend child support until their child reaches the age of a majority.  I have also had several cases where both parties make nearly the same income and are surprised to learn during their divorce or paternity action that neither party is entitled to alimony or child support from the other.
  1. In an ever-changing world, can you suggest some tips for someone in the first stages of a divorce or a paternity matter?
    Many get the wrong advice from friends and family—who all probably have the best intentions for that person—but ultimately, this can do more harm than good. There is no such thing as a one-size-fits-all divorce advice. No two families are the same, so no two divorces and no two paternity actions will be the same. While a friend or family member may recommend that you should move out, empty a bank account, or immediately file for divorce, the best first step is to contact an attorney for a consultation to see if that is in fact the right step for you to take. Attorney/prospective client privilege applies in consultations so you can feel comfortable that what is said during that time will remain private.

 

Lindsay HaberLindsay Haber is an associate in the firm’s Family Law Group, focusing her practice on family law disputes, including divorces, child custody issues, domestic violence and preparations of prenuptial agreements and paternity disputes.  Beyond her national practice, Ms. Haber has handled international domestic relations issues, including international kidnapping.

Practice Tips: Building Your Personal Brand

Building your brand in a law firm as a young associate is no easy feat. Not to mention, trying to build a book of business at the same time. Richard Segal, however, has proven in his time at Kluger Kaplan, that he knows how to climb the ladder. Rich’s path has been influenced by the firm’s mentorship program, where founding partners mentor new partners and associates to provide them the tools to build and market their practices—something he hopes to pay forward. So, we asked Rich for his advice on building a successful career trajectory.

Networking

  1. What did you learn early on in your career that helped guide you on your path to success?
    I learned early on to give more than I take when it comes to climbing the ladder. Join industry and charitable organizations, and attend networking events. In these organizations and within your firm, lend your time with the goal of obtaining a leadership position. Those around you will be impressed that you devote your time for the benefit of an organization and moreover, will perceive you in an authoritative and professional role. Every fruitful marketing relationship starts off by giving—and the return will inevitably come.
    If you happen to find yourself in a networking situation where you know other colleagues in the room, always speak highly of them and praise their accomplishments. Remember, what goes around comes around.
  2. You now work side by side with veteran litigators, handle major class action suits, counsel high profile clients – what have you learned so far from those experiences?
    Walk the walk and talk the talk. It may be easier said than done, but confidence can go a long way. If you doubt yourself, it is easy for others to do the same. Some of the most successful, veteran litigators I’ve worked with have an air of confidence that makes you want to work with them. Be confident, not cocky.
  3. What can a young associate/lawyer do to promote themselves in and outside of the firm? Why is this important?
    Do what comes naturally to you and be authentic with your choices. It’s important to find your strength and stay true to that. If public speaking doesn’t come naturally to you, write articles. If you’ve developed a deep connection to an organization, dive in headfirst. Begin within your personal comfort zone, but don’t be afraid to push your boundaries when opportunity presents itself. Learn to understand your weaknesses and turn them into an active pursuit towards personal growth. When opportunity arises, you want to be ready for it.
  4. As a young partner yourself, how are you helping the firm’s young associates learn the skills you’ve learned?
    I like to encourage associates to do more than just attend charity events or networking events. Take ownership and organize the events yourself. Differentiate yourself. And make yourself seen by demonstrating the qualities of a leader.
  5. Is there anything you learned the hard way? Any missteps you’ve made that an associate eyeing your success could learn from?
    I joined the Miami Beach Chamber of Commerce early in my career and quite frankly did not know how to “work a room.” I left many networking events feeling defeated—as if I missed an opportunity to appeal to colleagues and peers more authentically. I eventually realized my story was the key to working a room. My grandparents moved to Miami Beach in 1948, my father was born in Miami Beach, I was born at Mount Sinai, and my son was born at Mount Sinai. Starting to see my connection? While I didn’t know at first how to work the room, if I could do nothing more than just tell people my story, about my roots in Miami Beach, I was connecting. Your authentic story is what will bring you to success.

 

Richard SegalRichard Ian Segal is a partner and practices in Kluger Kaplan’s commercial litigation and family law groups, assisting clients in a range of business and corporate litigation matters, and matrimonial disputes.

Law360: Plaintiffs Bar Perspective: Kluger Kaplan’s Steve Silverman

Steve Silverman

Steve I. Silverman is a founding member of Kluger Kaplan Silverman Katzen & Levine PL in Miami. He represents individuals and businesses in all aspects of complex commercial and business disputes, including lender liability issues, claims relating to membership interest rights, all aspects of real property litigation, and complex class action cases.

Silverman has experience litigating multiparty cases in federal and state courts in Florida and nationwide. In addition to his complex litigation practice, he is also an experienced appellate lawyer, having handled dozens of appeals in both state and federal courts, both crafting briefs and delivering oral arguments.

Prior to co-founding Kluger Kaplan, Silverman served as chairman of the litigation and dispute resolution department, and as co-founder of the distressed asset group at Kluger Peretz Kaplan and Berlin. He also heads Kluger Kaplan’s electronic discovery group, following the latest trends and case law in electronic discovery issues at both the state and federal levels.

Q: What’s the most rewarding aspect of working as a plaintiffs attorney?

A: One of the most rewarding aspects of representing a plaintiff is hearing from my client at the end of the case that his or her goals have been met, that my client walks away from the litigation feeling fully and adequately compensated, and that they feel no stone was left unturned in their representation. Plaintiffs often come to us feeling significantly wronged and harmed. Being able to work through a case with clients to make sure that they feel satisfied at the end of the day after an often difficult experience is very gratifying.

Click to read more at Law360.com.

Sun Sentinel: Class-action status OK’d in claim BJ’s collects excessive sales tax

By: Ron Hurtibise
S
un Sentinel

May 30, 2017

A lawsuit alleging that B.J.’s Wholesale Club is charging excessive sales tax can proceed as a class action, meaning it could benefit all members paying the tax, a judge has ruled.

The suit was filed in 2015 by a Miami-Dade County woman, Laura Bugliaro, who said she noticed she was being charged state sales tax on the full retail price of discounted items at the club’s Cutler Bay store after buying two Samsung televisions in November 2014.

The suit says Bugliaro paid $769.99 and $329.99 but was charged sales tax on the full retail prices of $1,399.99 and $529.99.

The suit is seeking a two-pronged remedy: a permanent injunction to stop the practice and a separate ruling ordering the wholesale club to return sales taxes it contends were improperly collected since 2011.

Thursday’s ruling by Judge John W. Thornton of the 11th Judicial Circuit in Miami establishes a class of future victims who would be protected by a permanent injunction stopping the practice, two of the plaintiffs attorneys, Steve Silverman of Miami-based law firm Kluger, Kaplan, Silverman, Katzen & Levine and Victor Diaz of V.M. Diaz & Partners, based in Miami Beach, said in an interview Tuesday.

Click to read more at Sun-Sentinel.com.

Google: A Victim of Its Own Success?

ELLIOT V. GOOGLE, 2017 WL 2112311 (9TH CIR. MAY 17, 2017)

“Google it.”  Of course, we all know what this means. Indeed, the word “Google” has earned such widespread recognition that in 2006 it was added to the dictionary.  While this might be considered the epitome of success, it can be a nightmare in terms of trademark protection.

Google Lawsuit

Background

“Google” is what trademark law refers to as a fanciful mark.  Fanciful marks are made up, and similar to arbitrary marks, have no association to a particular type of goods or services.  For example, “Apple” has no apparent relation to computers just as the names Uber, Twitter, and Amazon give no indication of the particular product or service it provides.  For that reason, fanciful and arbitrary marks generally garner the highest level of trademark protection because it usually takes the trademark owner significant effort marketing its business to reach the point that the public associates its product or service with the mark.

However, when a fanciful term receives such unimaginable success that it transforms itself into a concept or in Google’s case, an entry in the dictionary, it may be in danger of losing its trademark protection and becoming a dreaded “generic” term.  Both “aspirin” and “escalator” were victims of “genericide.”

To determine if a mark has become generic, the Ninth Circuit Court established the “who are you/what are you” test.[1]  Applying this test, a finder of fact would analyze if a term points to the source (who you are), or if a type of good (what you are).[2]  An example is that the trademark “Coke” indicates a soft drink made by “Coca Cola” and the generic term “soda” indicates any carbonated soft drink. Once a term is found to be generic, it has no trademark protection, and can be fairly used by anyone in connection with describing goods or services.

Case

Aware of this risk, Google has vigilantly sought to protect its name.  In 2012 Google discovered that Chris Gillespie (“Gillespie”) acquired 763 domain names that included the term “Google.”  David Elliot (“Elliot”) purchased and registered the domain names using Gillespie’s GoDaddy.com account. Each of the domain names paired the term “Google” with a person, brand or product, such as “googledisney.com” and “googlebarackobama.com.” Google promptly objected to the registration of the domain names and filed a complaint with the National Arbitration Forum (“NAF”) using its dispute resolution procedure. Google argued that the domain names were confusingly similar to the “Google” trademark, were registered in bad faith and constituted cybersquatting.  Google prevailed and NAF transferred the domain names to Google.

Elliot then filed an action in the Arizona District Court (Gillespie later joined in the suit) for cancellation of the Google trademark on the grounds that the word “google” had become a generic term to describe the act of internet searching.

Ruling

After cross-motions for summary judgment, the district court found that Elliot and Gillespie failed to present sufficient evidence to support a jury finding that the public primarily understands the word “google” as a generic name for internet search engines[3].  Elliot and Gillespie appealed to the Ninth Circuit claiming that (1) they had presented sufficient evidence to create a triable issue of fact and (2) that the district court misapplied the primary significance test and failed to recognize the importance of the use of google as a verb.

On May 17, 2017, the Ninth Circuit affirmed the finding that a claim of genericide must always relate to a particular type of good or service, and that use of ‘Google’ as a verb is not synonymous with a finding of genericide[4].

Impact

Like Google, trademark owners must always be vigilant, monitor the public’s use of its mark and take affirmative steps to correct any public misuse to protect against potential claims of genericide.

 

Terri Meyers

Terri Meyers is a Partner at the Miami firm of Kluger Kaplan Silverman Katzen & Levine, P.L. and leads the firm’s Intellectual Property department.

 

 

 

Mayda_Nahhas

Mayda Nahhas is a law clerk at Kluger Kaplan Silverman Katzen & Levine, P.L., a rising third-year law student at Nova Southeastern University – Shepard Broad College of Law, the Goodwin Alumni Editor for Nova Law Review Vol. 42, and the Founding President of Nova Southeastern University Fashion Law Association.

 

[1] Official Airline Guides, Inc. v. Goss, 6 F. 3d 1385 (9th Cir. 1993).

[2] Yellow Cab Co. of Sacramento v. Yellow Cab of Elk Grove, Inc., 419 F.3d 925, 929 (9th Cir. 2005); Filipino Yellow Pages, Inc. v. Asian Journal Publication, Inc., 198 F.3d 1143, at 1147 (9th Cir. 1999).

[3] Elliot v. Google, 2017 WL 2112311 at 2 (9th Cir. 2017).

[4] Id. at 3.