Law 360: Ruling Puts Banks On Hook For Fla. Real Estate Back Taxes

Law360

Law360, Miami (October 27, 2017, 8:25 PM EDT) — When a mortgage company loaned money to a Miami buyer in 2007, the lender didn’t know the homeowner would improperly claim a homestead property tax exemption. It wasn’t until seven years later that the county would file a lien for the unpaid taxes, a lien that a Florida appeals court now says applies retroactively and takes priority over the mortgage.

The decision, issued Oct. 18, could cause headaches for lenders and title insurers who will now need to worry about priority liens popping up after closing and applying retroactively.

The biggest issue with the decision is its retroactive nature, which could, depending on the property and how long the homeowner wrongly claimed the exemption, lead to liabilities of hundreds of thousands of dollars, according to Farach. By law, a tax assessor can claim up to 10 years’ worth of back taxes for improper homestead exemptions.

“Florida has always been a first in time, first in right state, with one exception: that government liens are superior,” said Marko Cerenko, a partner at Kluger Kaplan Silverman Katzen & Levine PL. “But this means you can go back in time and prioritize a subsequent lien.”

Read the full story on Law360

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.

Supreme Court’s First Ruling on Fashion Copyright

Broadening Intellectual Property Rights for the Fashion Industry

Fashion Copyright

Case:

In a first ever fashion copyright decision, the U.S. Supreme Court analyzed whether design elements on a cheerleading uniform could be copyright protected.

At issue were two competitor manufacturers of cheerleading uniforms, Star Athletica, LLC (“Star Athletica”) and Varsity Brands, Inc., Varsity Spirit Corporation and Varsity Fashions & Supplies, Inc. (collectively “Varsity”).

Varsity had successfully acquired approximately 200 copyright registrations for two and three dimensional designs that appear on its cheerleading uniforms. Varsity sued Star Athletica for infringing five of Varsity’s copyright registered designs. In 2014, the District Court held that fashion related patterns for apparel were non-copyrightable if the work of art was not identified separately from its garment. It reasoned that the cheerleading uniform’s designs served a useful function of identifying a cheerleading uniform as such.

Background:

Under the Copyright Act of 1976[1], uniforms and other clothing are generally considered useful articles and therefore such items cannot be copyright protected. The fashion industry has customarily relied on other areas of intellectual property law such as trademark, trade dress or design patents to protect their fashion designs and brand. This is because although some elements of fashion can be protected by copyright law such as drawings, photographs, editorial content and software embedded in wearable tech, before this ruling, fashion designs were not copyright protectable.

Ruling:

The Supreme Court, in a majority 6-2 decision, reversed the District Court’s decision and ruled in favor of Varsity Brand, finding that individual design elements incorporated into such useful articles are eligible for copyright protection.

The Sixth Circuit’s decision held that the designs were “separately identifiable” because a blank cheerleading uniform can appear side-by-side a designed cheerleading uniform and both would still be identified as a cheerleading uniform. It further reasoned that the designs could stand-alone because the designs could be incorporated onto other tangible mediums.

Impact:

This decision marks an important milestone for the fashion industry and will no doubt spawn further litigation as designers press newfound copyright protection and copycats wonder what is safe. A designer wishing to obtain protection for a design must still prove ownership of an original “pictorial, graphic, or sculptural work which include two-dimensional and three-dimensional works of fine, graphic and applied art[2],” and obtain a registration from the U.S. Copyright Office. Although registration is not required to prove ownership of an original work of art, registration is a requirement in order to maintain a copyright infringement action in federal court.

Finally, Justice Ginsburg found the analysis of separability of the design from the useful article unnecessary because the designs at issue are not designs of useful articles, rather, the designs are themselves copyrightable pictorial or graphic works reproduced on useful articles[3].” Given that the design is copyrightable, Justice Ginsburg points out that the right “includes the right to reproduce the work in or on any kind of article, whether useful or otherwise[4].” This common-sense approach may send a clear message to the U.S. Copyright Office as they review the inevitable influx of copyright registrations which will follow this opinion.

 

Terri MeyersTerri 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_NahhasMayda Nahhas is a law clerk at Kluger Kaplan Silverman Katzen & Levine, P.L., a second-year law student at NSU Shephard Broad College of Law and Founding President of NSU Fashion Law.

 

 

 

[1] 17 U.S.C. § 101 (2010).

[2] 17 U.S.C. § 101.

[3] Star Athletica, Inc., 2017 WL 1066261, *14.

[4] 17 U.S.C. § 113(a) (2010).

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

DBR: Lawyers See Boom in Construction Practice

A total of $723 million in contracts for future commercial and residential construction were awarded in South Florida in June, up 101 percent from $360 million in the same month a year before, according to Dodge Research Analytics.  Kluger Kaplan founding member Alan Kluger spoke to John Pacenti of the Daily Business Review about what this construction boom means for litigation.

“It’s what I call good-economy construction litigation, meaning that things are being built and they are selling,” said Kluger.  “We are in a boom. There is no doubt about it.”

View the entire article here.