Issuu on Google+

MIDYEAR 2013

$7.95 www.sflegalguide.com

An Improving

MARKET:

» Upturn in REAL ESTATE » National firms expand to SOUTH FLORIDA » Trends in RECEIVERSHIPS PLUS: PLUS: LEADING CRIMINAL DEFENSE ATTORNEYS, CLASS OF 2013, PHILANTHROPIC PLANNING AND MORE


Q: Personal Injury Co-Counsel? A:

Personal Injury and Wrongful Death ▼ Medical Malpractice ▼ Legal Malpractice ▼ Violent Crime/Negligent Premises Security Trucking and Motor Vehicle Crash ▼ Nursing Home Neglect ▼ Product Liability ▼ Aviation Disaster ▼ Cruise Ship and Maritime

Leighton Law, P.A. ▼ Miami ▼ Orlando ▼ 888.395.0001 ▼ LeightonLaw.com Board Certified ▼ AV Preeminent ▼ SFLG Top Lawyer – 10 consecutive years ▼ Florida SuperLawyers Top 100 Florida Trend Legal Elite ▼ Best Lawyers in America ©2013 Leighton Law, P.A.


Frankfurt

Chicago

Warsaw Bremen Prague Milan

Salt Lake City New Hartford

Madrid

Miami Key West Mexico City

Freeport Nassau

New Delhi

Santiago

San Jose Panama City Guayaquil

SĂŁo Paulo

Santiago

Buenos Aires

ZUMPANO PATRICIOS & WINKER, P.A. We would like to take this opportunity to thank our clients, friends and staff as we celebrate our upcoming 10th ANNIVERSARY. We look forward to continuing to serve the communities we treasure. OfďŹ ces: ˆ>“ˆ]ĂŠÂ?ÂœĂ€Âˆ`>ĂŠUĂŠ …ˆV>}Âœ]ĂŠÂ?Â?ÂˆÂ˜ÂœÂˆĂƒĂŠUĂŠ->Â?ĂŒĂŠ>ÂŽiĂŠ ÂˆĂŒĂž]ĂŠ1ĂŒ>Â… Satellite OfďŹ ces: Ă€i“iÂ˜ĂŠ>˜`ĂŠĂ€>˜ŽvĂ•Ă€ĂŒ]ĂŠiÀ“>Â˜ĂžĂŠUĂŠĂ•>Ăž>ÂľĂ•ÂˆÂ?]ĂŠ VĂ•>`ÂœĂ€ĂŠUĂŠĂ€iiÂŤÂœĂ€ĂŒĂŠ>˜`ĂŠ

>ĂƒĂƒ>Ă•]ĂŠ/Â…iĂŠ >Â…>“>Ăƒ

iÞÊ7iĂƒĂŒĂŠ>˜`ĂŠĂŒÂ…iĂŠÂ?ÂœĂ€Âˆ`>ĂŠiĂžĂƒĂŠUĂŠiĂ?ˆVÂœĂŠ ÂˆĂŒĂž]ĂŠiĂ?ˆVÂœĂŠUĂŠˆÂ?>˜]ĂŠĂŒ>Â?ÞÊUĂŠ iĂœĂŠ iÂ?…ˆ]ĂŠ˜`ˆ>ĂŠUĂŠ iĂœĂŠ>Ă€ĂŒvÂœĂ€`]ĂŠ iĂœĂŠ9ÂœĂ€ÂŽ *>˜>“>ĂŠ ÂˆĂŒĂž]ĂŠ*>˜>“>ĂŠUĂŠ->Â˜ĂŠÂœĂƒi]ĂŠ ÂœĂƒĂŒ>ĂŠ,ˆV>ĂŠUĂŠ->Â˜ĂŒÂˆ>}Âœ]ĂŠ …ˆÂ?iĂŠUĂŠ->Â˜ĂŒÂˆ>}Âœ]ĂŠ œ“ˆ˜ˆV>Â˜ĂŠ,iÂŤĂ•LÂ?ˆVĂŠUĂŠ->ÂœĂŠ*>Ă•Â?Âœ]ĂŠ Ă€>Ă˘ÂˆÂ? >`Ă€Âˆ`]ĂŠ-ÂŤ>ÂˆÂ˜ĂŠUĂŠ Ă•iÂ˜ÂœĂƒĂŠÂˆĂ€iĂƒ]ĂŠĂ€}iÂ˜ĂŒÂˆÂ˜>ĂŠUĂŠ7>Ă€Ăƒ>Ăœ]ĂŠ*ÂœÂ?>˜`ĂŠUĂŠ*Ă€>}Ă•i]ĂŠ âiVÂ…ĂŠ,iÂŤĂ•LÂ?ˆV

www.zpwlaw.com /Â…iĂŠÂ…ÂˆĂ€ÂˆÂ˜}ĂŠÂœvĂŠ>ĂŠÂ?>ĂœĂžiĂ€ĂŠÂˆĂƒĂŠ>Â˜ĂŠÂˆÂ“ÂŤÂœĂ€ĂŒ>Â˜ĂŒĂŠ`iVÂˆĂƒÂˆÂœÂ˜ĂŠĂŒÂ…>ĂŒĂŠĂƒÂ…ÂœĂ•Â?`ĂŠÂ˜ÂœĂŒĂŠLiĂŠL>Ăƒi`ĂŠĂƒÂœÂ?iÂ?ĂžĂŠÂœÂ˜ĂŠ>`Ă›iĂ€ĂŒÂˆĂƒi“iÂ˜ĂŒĂƒÂ° ivÂœĂ€iĂŠĂžÂœĂ•ĂŠ`iVˆ`i]ĂŠ>ĂƒÂŽĂŠĂ•ĂƒĂŠĂŒÂœĂŠĂƒi˜`ĂŠĂžÂœĂ•ĂŠvĂ€iiĂŠĂœĂ€ÂˆĂŒĂŒiÂ˜ĂŠÂˆÂ˜vÂœĂ€Â“>ĂŒÂˆÂœÂ˜ĂŠ>LÂœĂ•ĂŒĂŠÂœĂ•Ă€ĂŠÂľĂ•>Â?ˆwĂŠV>ĂŒÂˆÂœÂ˜ĂƒĂŠ>˜`ĂŠiĂ?ÂŤiĂ€Âˆi˜Vi°


MASTHEAD

PUBLISHER JACOB SAFDEYE  

  EDITOR IN CHIEF RICHARD WESTLUND CREATIVE DIRECTOR SUSEL REYNALDO    

  GUEST CONTRIBUTORS JOHN BUSSEL !"" ##$#%&' ('%$#&' ')*%% *&('"+* ,!(-&&.% !,'/(( .("- ORLANDO ROCHE *%('%(%.( %')%( SOUTH FLORIDA LEGAL GUIDE -%!&012'!&.023405 & 6  .78541392&2#%55085

 :   

    6 ;6   <: = 6 = 66<: 6=>6; 72=: =: 

6<: < 6= 6>: =  :  ;=: (:  :#  %  ,  ? 6 6  6 :  ;>6>6=  6 2   = 2 > ;>=    :  6(: =  : 6    :: :6 >

<; 6=6 6:: 6   ;6   6. > ;   2 ?: 6 ; 6; > < 66>6 @   66 7=  6  To Order Copies or Reprints Contact: 6> 

  or call:GK98M9KPK859Q<<< 

  2

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013


800 lawyers. 19 ofďŹ ces. 100+ years.

Founded in 1901, Hunton & Williams LLP is committed to providing quality legal service to our clients, whether an individual or a global corporation. Our firm has more than 800 lawyers practicing from 19 offices across the United States, Europe and Asia, helping clients realize new opportunities and solve complex problems with confidence. Our experience in virtually every key legal discipline blends with a broad view of current business realities and a forward-looking perspective on emerging issues to provide legal and regulatory advice that serves our clients well. We are regularly named by legal and business publications as among the top law firms for client service and as a best place to work. Hunton & Williams, Juan C. Enjamio, Managing Partner, 1111 Brickell Avenue, Suite 2500, Miami, FL 33131, 305.810.2500 Š 2013 Hunton & Williams LLP  www.hunton.com Atlanta  Austin  Bangkok  Beijing  Brussels  Charlotte  Dallas  Houston  London  Los Angeles  McLean  Miami  New York Norfolk  Raleigh  Richmond  San Francisco  Tokyo  Washington


TABLE OF CONTENTS

5 Guest Opinion 9 Criminal Defense Lawyers

32

22

26

9

22 26 32 36 38 40 42 44 46

53

48 50 51 52 53 58 62

4

Feature Article: National Firms Open Offices Here Feature Article: Latest Trends in Receiverships Feature Article: An Upturn in Real Estate The IRS Declares War on Offshore Tax Evasion Crafting An Effective Arbitration Provision Slip-and-Fall Cases Managing Wealth in Uncertain Times Buyer-Financed Development Becomes the New Normal Why Physicians and Attorneys Need Estate Planning It’s Always About the Money! Resisting the Patent Trolls The Importance of Philanthropic Planning Local Law Firm Marketers Count on LMA Class of 2013 Professional Profiles 13th Anniversary Celebration

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

42


GUEST OPINION

Shaping Our Future TOGETHER BY EUGENE K. PETTIS

As I prepare to commence my presidency of The Florida Bar on June 28, 2013, my adrenaline is at an all-time high with the pride that I have in being a lawyer. Over the past year, serving as presidentelect, I have had the opportunity to speak with lawyers from every corner of this state and beyond, and I am convinced that there is no greater profession when it comes to using its skills and resources to positively impact society. One of my greatest joys has been meeting hundreds of lawyers that are committed to our Creed of Professionalism of furthering our profession’s devotion to public service and to public good. However, as new challenges confront our profession, our lives continue to become more complex, and it is during times like these that it’s human nature to look inward to maintain focus on personal accomplishment, and lose our broader view of looking beyond ourselves to help others. Let there be no doubt that the legal profession is going through evolutionary changes. These changes are being driven by external and internal forces. How we deliver our services is being impacted by economic realities and technology advancements. How we communicate with our clients, with the courts, and with each other as lawyers is changing as frequently as the sun rises. Somehow we must find a way to balance our goals of being successful practitioners, while at the same time living a purposefilled life. The old Biblical scripture of the Book of Luke is paraphrased to say, “To whom much is given, much is expected.” Historically, lawyers have embodied this lesson and helped shape a better world. The legal profession has shined brightly over history as the pathway of justice and equality in our society. The year 2013 is a year of celebrating two landmark events shaped by the rule of law and service of lawyers – 150th anniversary of the Emancipation Proclamation and the 50th year of the U.S. Supreme Court’s decision in Gideon v.

Wainwright. These are reminders of our rich heritage and oath of duty. Recently, I was traveling in Washington, D.C., and noticed a banner outside a museum that read, “What you do matters.” When I looked up that poignant phrase on the internet, I found that the banner was hanging outside the United States Memorial Holocaust Museum. It was a clear reminder of the power of one person making a difference, one voice speaking truth to justice, and one hand reaching out and lifting someone to higher ground. We as the legal profession must take on the challenge of “the power of one.” Each of us must get engaged within our community or profession to be the change we desire to see in the world. But this call to action requires us to look beyond ourselves and our self-interests and examining how we can help solve some of the problems around us. I am always inspired by the quote of Helen Keller, “I am only one, but still I am one. I cannot do everything, but still I can do something, and because I cannot do everything, I will not refuse to do something that I can do.” During my presidency, I will lead several initiatives that I hope will drive us toward our goals. I have recently completed more than 500 appointments to the Standing Committees of The Bar. I am proud that we were able to accomplish great diversity and inclusion of gender, race, geographic and practice areas. I am also appointing a commission to study the future practice of law. This commission will study four areas over the next three years, including legal education,

technology, Bar admissions and delivery of pro bono legal services. Each of these areas will be studied by an individual sub-group of lawyers from the practice, academia, the judiciary and lay people in ancillary areas that impact our profession, such as court administrators. We hope this commission will identify a road map of how we can shape the future of law and not allow outside forces to totally reshape our profession. Lastly, the Bar will be rolling out its inaugural class of the Wm. Reese Smith Leadership Academy. We have 59 Fellows of the Academy who will undertake a one-year curriculum of training and enhancement of leadership skills and networking that is designed to make them knowledgeable lawyers and ambassadors of our profession. I hope that through these and other initiatives, we will fulfill our responsibilities as lawyers and uphold the legacy of the legal profession and be the difference makers this world needs. Eugene K. Pettis, is co-founder of Haliczer Pettis & Schwamm. Pettis, who practices in the areas of medical malpractice, personal injury, commercial litigation and employment law, will serve as president of the Florida Bar starting on June 28, 2013. SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

5


EDITOR’S NOTE

Things Are LOOKING UP! After five challenging years, South Florida’s economy is clearly back on the way up. That’s great news for most attorneys, bankers and litigation support professionals, who can turn their attention to growing their practices. This 2013 Midyear Report reflects that growing optimism about the prospects for the next few years. For example, one of our features focuses on shift in South Florida’s real estate market from litigation to transaction-related services from land use and entitlement to closing multi-million dollar deals. Another positive sign for the South Florida legal market is the increasing number of national law firms that are opening offices in Miami, Fort Lauderdale and West Palm Beach. Instead of sitting tight, these firms are positioning themselves for new business opportunities in the local, regional, and international market. Having more “players” in the game increases the level of competition, creating new options for clients seeking high-quality legal services. A third major feature looks at the fascinating topic of receiverships – an important option for resolving issues related to distressed properties, business disputes and fraudulent schemes. While foreclosures and bankruptcies are likely to continue to decline as the regional economy picks up steam, receiverships may play an even more important role than in the past because of their versatility in addressing problem situations. Also in this issue, we are featuring six top criminal defense attorneys as part of our ongoing series of articles on outstanding attorneys in various legal disciplines. If trouble comes knocking at your door, there’s no substitute for an experienced criminal defense attorney. Our Midyear Report includes “Top Lawyers, Class of 2013,” an introduction to the “Up and Comers” who will be moving to our “Top Lawyer” list in our next annual South Florida Legal Guide. This issue also features guest articles and columns by leading South Florida professionals on timely topics and issues facing attorneys, clients and the community. As our readers understand, South Florida Legal Guide’s publications serve the legal and business community, rather than a general consumer audience. Our goal is to provide interesting, important and informative articles and features that will help our readers in their professional careers. With our Midyear Report, upcoming Financial Edition, new Spanish-language Revista Abogados and year-end annual edition, we reach a dynamic professional audience that includes attorneys, accountants, forensic experts, bankers, financial service providers and other professionals. As always, it is a pleasure to thank our contributors, advertisers and readers for your support, as we continue to move forward in serving South Florida’s diverse professional community.

Richard Westlund Editor 6

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013


“We turn complexity into an advantage” Regulatory Compliance

Complex Commercial & Class Action Litigation

FATCA & Voluntary Disclosures

Complex Tax Compliance

Family Law Litigation Support

For Attorneys and their Clients For Businesses And For You

At Foodman CPA’s and Advisors, the foundation of our business is our experience and commitment to client success. We bring diverse real world experience to every client challenge. Fluent in 6 languages, our team includes CPA’s, former Government Agents, Securities Fin-Op Principals, Bankers, Regulators, Financial Planners, Building Contractors, and former Family Law Mediators. Our panoramic background provides clients with in-depth solutions.

Economic Crime


PUBLISHER’S NOTE

The Price of FREEDOM? During the court-martial scene in the famous movie, “A Few Good Men,” Colonel Nathan R. Jessup (played by Jack Nicholson) says, “I have neither the time, nor the inclination, to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, and then questions the manner, in which I provide it. I’d rather you just say ‘thank you’ and go on your way.” Now, where have I heard this recently? In thinking about the federal government’s massive “cyber security” initiative, I wonder if we are at risk of losing some of our most cherished personal freedoms. Like most of you, I have several business and personal email accounts through providers like Google (Gmail) and Yahoo, as well as a LinkedIn account, a seldomused Facebook page, and the usual Visa, MasterCard, Amex online accounts. I also have a mobile phone that’s supposed to be smart, a home phone, a few department store cards, a car with GPS, and a TV cable provider. I am a registered voter, and subscribe to several news services. I hold memberships in airline frequent flyer programs, memberships in frequent-stay hotel programs, and heaven knows what else I have forgotten. For all of them I have probably checked the fine print on the site authorizing the use of my behavior as a method for the provider to “better serve me.” Like most of us, I usually don’t think twice about all the online information we are shelling out, while data mining and aggregation companies such as Acxiom are out there analyzing it. Now, the federal government has gotten into the same game – in a very big way. As a U.S. citizen, I am perfectly comfortable with the fact that I might have to give up some of my “rights” in order to prevent a crime, especially against me, my family and my country. But is there a better way to protect our country than to trample on our individual rights without our consent? As we all know, the balance between safety and freedom is very delicate, and as Great Britain’s Lord Acton once said, “Power tends to corrupt, and absolute power corrupts absolutely.” That’s why we need well-trained journalists and a strong press who can ferret out wrongdoing. We also need our “check and balance” system of government, where the U.S. Congress and U.S. Supreme Court can watch over the actions taken by the executive branch. Let’s ask our elected leaders to remember that one of the foundations of our country is the consent of the governed. We must always live up to that principle. At the end of the day, we will all have to answer for our actions. Jacob Safdeye Publisher & CEO PS) For those not familiar with “A Few Good Men,” Jessup does end up being accused because of the “manner in which he provided said freedom.”

8

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013


WALTER REYNOSO

Criminal Defense ATTORNEYS

WHEN AN INDIVIDUAL OR A COMPANY IS CHARGED WITH A CRIME, THE STAKES ARE ALWAYS HIGH. AFTER ALL, THE ACCUSED MAY BE FACING A POTENTIAL PRISON SENTENCE IN ADDITION TO SUBSTANTIAL FINES OR PENALTIES. IN THOSE SITUATIONS, THERE IS NO SUBSTITUTE FOR AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY WHO CAN SERVE AS AN EFFECTIVE ADVOCATE FOR A CLIENT BOTH INSIDE AND OUTSIDE THE COURTROOM. HERE ARE SIX OF OUR TOP ATTORNEYS WHO HAVE EARNED OUTSTANDING REPUTATIONS AS COMPASSIONATE AND CARING DEFENDERS OF INDIVIDUALS AND CORPORATIONS FACING CRIMINAL CHARGES.


CRIMINAL DEFENSE ATTORNEYS

RICHARD G. LUBIN: Defending the Constitution

Richard G. Lubin is a passionate defender of the United States Constitution. “If you look at a person accused of a crime in Iran, Cuba or North Korea, you realize they simply have no chance.” says Lubin. “In our country, people are innocent unless and until proven guilty. Protecting the individual rights of our citizens is one of the foundations of our society.” Board certified in criminal trial law, Lubin has successfully defended doctors, lawyers, corporate executives, professional athletes, educators and other clients throughout the country. “Richard is a brilliant attorney,” says former client Dipnarine Maharaj, M.D., a Palm Beach County hematologist. “He is meticulous in the way he works, and very detail oriented. He is also an excellent speaker who can take a complex subject, break it down and explain things in court.” At Richard G. Lubin, P.A., in West Palm Beach, Lubin leads a team that includes three other attorneys whose cases range from complex white collar matters such as healthcare, securities and tax fraud, to homicide, narcotics violations and sex offenses. “I am the quarterback of our team, and we all work together on every case,” says Lubin. “When people are in trouble, they look for hands-on representation. That’s why dedicated criminal law firms like ours are relatively small.” ACTIVIST TO ATTORNEY Born in New York, Lubin graduated from Boston University in 1970, after serving as president of the student body during his senior year. “That was during the height of the Vietnam war, and I was 10

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

already a social activist determined to protect our constitutional rights,” he says. From Boston, Lubin went to Georgetown Law School, where he earned his juris doctor in 1974. “By then, the war was winding down, and I decided to become a criminal defense lawyer,” he says. “That was a natural progression for me.” Lubin joined the public defender’s office in West Palm Beach, where he “learned the trade” under the mentorship of Palm Beach County Public Defender George B. Barrs. “He helped me understand what trials are really about,” Lubin recalls. “It’s really about reaching their emotions and feelings, and explaining the case in a way that makes sense to the jury.” After two years, Lubin joined a small West Palm Beach firm, handling trial work, including civil matters, divorces and personal injury cases, while building a criminal practice. In 1980, he opened his own firm in partnership with Nancy Hamill, formerly with the Legal Aid Society of Palm Beach County. However, she died of cancer in their first year of practice. Through the decades, Lubin has built a full-service defense firm that handles both federal and state criminal cases. “At any one time, we will have two or three murder cases pending, along with clients who have been accused of various types of fraud,” Lubin says. “Today, there is a major push by the U.S. Department of Justice to investigate healthcare and securities cases. Those matters tend to be very more document intensive because you have to really drill down deeply into the allegations.” Known as a pioneer in the use of trial consultants and focus groups, Lubin says there is a “huge amount of preparation” in every case. “That intense pre-trial work can lead to cases being dismissed or settled,” he says. “What you see in court is really the tip of the iceberg. I love being able to stand up in a trial to cross-examine the main witness, but it’s always better to win the case before you go into court.” When digging into his cases, Lubin has found incorrect statements or identifications by supposed witnesses to a crime, statements that were signed under coercion

and information that was withheld by the prosecution. “We always have to remember that an arrest is one thing, but a conviction requires clear proof, because sometimes things aren’t what they appear to be,” he says. Lubin adds that trial studies have shown that coerced confessions to a crime, mistaken identifications and incorrect expert witness testimony are three main causes for false convictions. “If you don’t have that right to a criminal defense attorney who will provide more than lip service to your case, the result can be that an innocent person will go to prison,” Lubin says. “I always ask jurors which would be worse: for an innocent person to be convicted or for a guilty person to be found not guilty. After some discussion, they almost always say convicting an innocent person. To be sure that doesn’t happen, we need to maintain our vigilance and continue to fight for our constitutional rights.” Lubin’s success as a defense lawyer has been recognized on a national level. He is a former president of the American Board of Criminal Lawyers and former board member of the National Association of Criminal Defense Lawyers. For many years, he served on the faculty of the National Criminal Defense College, which teaches trial skills to criminal lawyers. He has lectured around the country on topics like opening statements, cross examination of expert witnesses and closing arguments. “I haven’t done as much teaching in recent years, but I will always be a public defender at heart,” Lubin says. “To me, there is nothing more important than understanding how to defend clients and protect their rights in court.” Locally, Lubin served as president of the Palm Beach County Legal Aid Society for 13 years, and was president of the Palm Beach Association of Criminal Defense Lawyers, and chairman of the Palm Beach County Criminal Justice Commission. When not working on his cases, Lubin enjoys playing golf and recently joined a senior softball league. Lubin’s son Ben is a


RICHARD G. LUBIN

former U.S. Marine captain who now owns a wine bar in West Palm Beach. He and his wife Kathy also have a 15-year-old son Justin, now in high school. After almost 40 years as a criminal defense lawyer, Lubin still feels passionate

about his work. “I love working with my team to help ensure that our clients receive a fair trial,” he says. “Defending someone accused of a serious crime is not a part-time job. It takes your heart and your soul to do it the right way.”

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

11


CRIMINAL DEFENSE ATTORNEYS

DAVID OSCAR MARKUS:

A Vigorous Defender

When airline vice president Rodrigo Hidalgo was charged with criminal antitrust violations in two federal indictments, he turned to Miami defense attorney David Oscar Markus for help. “I felt very confident and secure that if there was any possibility of finding something in the law to help me, he would find it,” said Hidalgo. “And in fact, he did it.” Working closely with trial attorney Robin Kaplan and his wife, litigation and appellate attorney Mona E. Markus, David Markus demonstrated that Hidalgo was immune from prosecution. As a result, the federal judge issued a 49-page order dismissing all charges. As the founder of the Miami firm Markus & Markus, David Markus has built a nationally recognized trial and appellate practice that is known for taking on difficult cases and winning.  “Opposing counsel can underestimate how hard we fight,” says Markus. “We fight vigorously for each client and take each case personally.  We bring our cases home with us.” Markus typically defends business executives, entrepreneurs and other professionals charged with white-collar offenses, such as: antitrust violations, corrupt practices, tax fraud, mortgage fraud, medicare fraud, securities fraud and drugrelated cases. Typically the firm handles only five or six matters at a time, including at least one pro bono case. For example, Markus and Kaplan persuaded a federal judge to vacate the life sentence for Yuby Ramirez on charges stemming from the Sal Magluta and Willie Falcon murder case. That pro bono effort required eight years of litigation and multiple appeals to the Eleventh Circuit Court of 12

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

Appeals, but in the end Ramirez was freed from prison. A ‘BORN’ LAWYER Born in Miami, Markus knew he wanted to be a lawyer at an early age. After all, his father, Stuart Markus, has been practicing law since graduating from the University of Miami in the late 1950s. “I would follow my dad around at the courts and see him at work,” he says. “I always felt that trial work would be the most fun.” After earning his undergraduate degree summa cum laude at Emory University, Markus finished first in his class during his first year at the University of Miami School of Law. “That year, I had also applied to Harvard, but forgot all about it,” he says. “A week before second-year classes started at UM, I found out I had been accepted as a transfer student. My dad told me to pack up, get a plane ticket and he’d help me get settled in Boston. That turned to be the best decision I made.” On his first day at Harvard, he met his wife Mona, who was a year younger but was going through the orientation session. In law school, he was mentored by the legendary Alan Dershowitz, and argued in front of Supreme Court Justice Anthony Kennedy who named him best oralist. After graduating from Harvard, Markus served as law clerk to the Honorable Edward B. Davis, then-Chief U.S. District Judge, Southern District of Florida. Deciding on a career in criminal defense, Markus joined Williams & Connolly , a top Washington, DC, firm whose lead attorney was the noted Edward Bennett Williams. “I love representing the underdog, and coming up with creative strategies,” he says. That firm helped Markus develop a no-holds barred philosophy to criminal defense, but he wanted more courtroom experience. So the Markuses decided to return to Miami, where David joined the federal public defender’s office in Miami and Mona went to work as a litigator at Stearns Weaver. After three years of daily trial work, Markus decided to go into private practice with Milton Hirsch, now a MiamiDade circuit judge. “My father had worked with his father back in Chicago, and Milt

was a good mentor to me,” Markus says. “He taught me about the art of trial practice and encouraged me to go into court, rather than always pleading things out. That was a unique aspect of our practice – and one I continue today.” Three years ago, Mona Markus joined the practice, with a focus on motions, civil litigation and appellate work with three victories in the 11th Circuit Court of Appeals last year. They have three daughters – Nicole, Kate and Megan – and enjoy spending family time together. “People ask me how we can work in the same firm, and I tell them it’s great,” he says. “We both love the law and get to talk about our cases all the time. She’s brought a lot of great ideas from the civil side that have helped our criminal practice.” A PERSONALIZED APPROACH Markus, who also added Margot Moss, an experienced trial lawyer, as a partner two years ago, takes a personalized approach to criminal defense matters.  The two recently won a dismissal for an high-level executive at a publicly traded company and currently represent the CEO of a large Kentucky company. “We generally turn away people who are asking for the ‘best deal’ they can get from the government,” he says. “Instead, we look for clients who want to fight the charges from day one all the way to the trial. But we have to like the case and feel compatible with the client.” With that philosophy, Markus says he doesn’t want the firm to get too big. “I like being involved in every case we handle,” he says. “We’re at the right size for everyone to work as a team. I would much rather practice law than spend my time managing a large firm.” Markus is known for taking on difficult cases and winning at the trial level all the way to the Supreme Court.  Markus recently took on the government in a 141-count federal indictment against Dr. Ali Shaygan and won every count at trial, as well as more than $600,000 in attorneys’ fees and costs for his client in a first-of-its-kind victory.  Based on that case, Markus was awarded the Rodney Thaxton “against all odds” award by the Florida Association of Criminal Defense Lawyers. Although the 11th Circuit reversed the fee award in a number of controversial


DAVID OSCAR MARKUS

opinions, the court referred to Markus as an “elite” and “superb” attorney.  Active in professional circles, Markus is a past-president of the Florida Association of Criminal Defense Lawyers - Miami Chapter and past-president of the Federal Bar Association, South Florida Chapter. He has lectured on different aspects of the criminal trial and appeal, and taught at the University of Miami School of Law, and Florida International University College of Law, and was also an instructor at the first White Collar Criminal Defense College at Stetson Law 2012. “Criminal defense is one of the most important areas of the law, and also one of the most stressful,” he says. “The deck is stacked against you, and the prosecutors have plenty of resources available. Most of the time, the jurors start off with a mindset that the defendant must be guilty of something. So a victory is really satisfying for me, as well as my clients.”

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

13


CRIMINAL DEFENSE ATTORNEYS

WALTER REYNOSO: Zealous Defense for All – Big Clients and the ‘Little Guy’ When federal prosecutors indicted property owner Maria Valdes for conspiring to run a marijuana “grow house” in St. Lucie County in 2007, she turned to Coral Gables defense attorney Walter Reynoso for help. The alleged conspiracy involved multiple grow houses and a murder. Digging into the case, Reynoso was able to show that Valdes, a grandmother who was renting out the home, was unaware of the illegal operation. After many months of hard work, a U.S. District Court judge dismissed the indictment. All other defendants were convicted, with one receiving a 30-year prison sentence. “Our law firm represents many executives, accountants, attorneys and other professionals,” says Reynoso, who practices with his brother, Luis E. Reynoso, at The Law Offices of Walter A. Reynoso, P.A. “But we never forget about the little guy. Defending someone’s liberty, rights and reputation goes to the heart of our justice system, and that is what continues to drive me in my work.” Since launching his criminal defense practice in 1986, Reynoso has successfully represented many high-profile clients over the years, including corporations, professional athletes, politicians, doctors, attorneys and lead defendants in major felony, drug and money laundering cases.  Reynoso represented Scott Olsen, a 23-yearold pitcher for the Florida Marlins, who was charged with two off-the-field felonies in 2006. “That jeopardized his contract, his career and ability to continue playing professional baseball,” says Reynoso. “We worked with his agents and Major League Baseball, and were able to get all charges dismissed. Scott went on to enjoy a successful career and is now pitching with the Texas Rangers.” 14

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

A lifetime member of the National Association of Criminal Defense Lawyers and past president of the Colombian-American Bar Association, Reynoso focuses his practice on white-collar criminal defense and trials in federal courts. His brother Luis handles felony and misdemeanor matters in state courts. The two attorneys collaborate frequently in all their cases.

trial by participating as prosecutors, defense attorneys and jurors. Reynoso and his family have received awards for their efforts in coordinating holiday parties and other events for the foster children of the Children’s Home Society.

HANDLING FEDERAL CASES Reynoso’s career got off to a strong start, handling one jury trial after another. “I earned a good reputation among my peers within A COMPETITIVE SPIRIT Born in Colombia, Reynoso came to South the legal system,” he says, recalling a long, hard-fought trial in an eight-defendant case Florida in 1963 when he was four years old. that he won on all charges. Afterwards, John “My mom and dad taught me the value of Schlesinger, then assistant U.S. attorney, hard work, and have inspired me through complimented Reynoso in a letter, saying, the years,” he says. That determination “It was a pleasure working with you as an paid off – at Chaminade High School, he adversary in this trial. Of all the attorneys played football for four years, making the involved in this case, you stood out as one of “All-Broward County” team as an outside linebacker. He was recently inducted into the the finest and certainly the fairest and most ethical opponent I faced.” Reynoso framed the school’s Sports Hall of Fame. letter with the verdict, one of many “not guilty” From there, Reynoso enrolled at John Carroll University, where he continued to play verdicts framed throughout his office. “The verdicts are great testimonials. Each verdict football and was named defensive captain his senior year prior to earning a degree in business states that 12 jurors considered the evidence presented by the U.S government against each administration. At Boston College School client, and found each client not guilty of the of Law, he was a staff writer for the Boston charges brought by the Federal Grand Jury,” College Uniform Commercial Code Reporter he says. Digest and he worked for the Department of Over the past 25 years, the number of Justice, Securities and Exchange Commission, jury trials in the court system has decreased, Enforcement Division. Reynoso says. Today, he may only handle two He also made “the best decision of my or three trials a year, compared with a dozen or life,” by marrying Melanie, his wife of 25 more annually in the 1990s. “With that gradual years. Today, he and his wife have four change in the justice system, my practice has children, Jenna, Kristen, Wally Jr., and shifted,” he says. “Now, we assist many clients Britney. Jenna attends Fordham Business who are the targets of grand jury investigations School in New York; Kristen is in law school or federal indictments, with the goal of helping at Nova Southeastern University; Wally Jr. is them avoid charges altogether.” a junior at the University of Alabama (PreThat focus is particularly important, Law Major) and Britney is a freshman at St. Reynoso says, because there is a 90 percent Thomas High School in Fort Lauderdale. “I conviction rate after a grand jury indicts spend a lot of my time with my family,” says someone. “I have obtained dismissals of five Reynoso. “I also enjoy running 10K races, different indictments before trial – a rare boating and exercising. I believe there has to occurrence. I’ve been able to do so through be balance between your practice, enjoying preparation, preparation and more preparation. your family and enjoying life. Success is I’ve been very lucky throughout my career, achieved by finding that perfect balance. For but my definition of luck is when preparation me, every day is another day in paradise”. Reynoso also volunteers time by actively meets opportunity”. Among Reynoso’s most recent legal assisting the homeless of South Florida victories that never made it to the courtroom and sponsors Camillus House and Miami was clearing a corporate officer implicated in Rescue Mission.  The law firm also runs a gasoline price-fixing indictment in South a Law Mentor Program at local middle schools, where children take part in a mock Florida. Also last year, Reynoso represented


WALTER REYNOSO

a corporation and its owner that had been implicated in a massive money laundering case in St. Louis. “That investigation concluded this year with no charges to either the company or the owner,” he said. “The company continues to flourish and employs

well over 200 employees in South Florida, South America and China.” With his brother, Reynoso still goes to bat for “the little guy,” such as a young high school student who brought a pocket knife to school. “That’s a felony under the school district’s

zero tolerance policy,” he says. “But this was a good kid who was getting fine grades. We were able to get the charges thrown out and he was recently accepted at MIT [Massachusetts Institute of Technology]. Changing lives for the better – that’s what my practice is all about.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

15


CRIMINAL DEFENSE ATTORNEYS

MARK SCHNAPP: Resolving Complex Matters

Whether leading an internal corporate investigation or defending a client in court, Mark Schnapp focuses on finding solutions in complex criminal matters. “I enjoy working on cases with a lot of moving parts.” says Schnapp, a shareholder in Greenberg Traurig’s Miami office and co-chair of the firm’s White Collar Criminal Practice. Through the years, Schnapp has helped clients navigate parallel civil and criminal investigations that involve federal agencies like the U.S. Department of Justice and Securities Exchange Commission (SEC). His practice also includes conducting fraud, tax, money laundering and other criminal investigations. “Mark worked with us in a very complex situation several years ago,” says Mark Chandler, general counsel, Cisco Systems in San Jose, CA. “Several internal and external people had conspired to defraud our company and customers. There were a lot of people pointing fingers in different directions, and Mark was adept at focusing on the key factors, developing our strategy and reaching an appropriate outcome. He also has a really generous spirit and is a good human being. It’s a pleasure to work with Mark.” Schnapp has 30 years of litigation experience, including seven years at the U.S. Attorney’s Office for the Southern District of Florida, where he was Chief of the Criminal Division. He has also handled more than 70 jury and non-jury trials.  One of his colleagues in the U.S. Attorney’s Office was Roberto “Bob” Martinez, now a partner at Colson Hicks Eidson in Coral Gables. “Mark was a goto prosecutor, someone you could trust with power and authority,” Martinez says. “He knows how to formulate a game plan 16

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

and is strategic in his thinking. He’s also an extremely loyal friend who is always ready to help if you need something.” A HARD WORKER Growing up in New York with twin brothers, Schnapp developed a strong work ethic at a young age, and became the first person in his family to go to college. “My father was a flight instructor in World War II era aircraft, and I became interested in aeronautics at an early age,” he says. Deciding to become an engineer, Schnapp served as president of the Undergraduate Engineering Council at New York University before earning a bachelor’s degree in electrical engineering in 1972. “At age 19, I became an advocate for the students at university faculty meetings,” he recalls. “That experience made me think about law as a more exciting choice of careers.” Deciding to switch gears, Schnapp enrolled at Hofstra University School of Law, earning his juris doctor in 1976. He began his career at Cravath, Swaine & Moore, a major New York corporate law firm, and then decided to become a prosecutor and joined the U.S. Attorney’s Office in Miami in 1982. “My friends thought I was crazy to come down here, but I knew I’d made the right choice,” he says. “There were drug, fraud and money laundering cases and everything in between,” he says. “As a relatively young lawyer, it was a great experience for me. South Florida has an amazing criminal bar, in terms of both prosecutors and defense attorneys, so I had many exceptional learning opportunities.” While at the U.S. Attorney’s Office, Schnapp was part of the prosecution team for Operation Swordfish, in which more than 70 individuals were either indicted or convicted on money-laundering or drug trafficking charges. Schnapp’s work on the investigation of Panamanian leader Manuel Noriega earned him a Santeria curse discovered when the U.S. army captured the former general who was later convicted on drug trafficking, racketeering and money laundering charges. One of Schnapp’s last cases as a prosecutor involved Colombian coffee magnate Alberto Duque, who was tried and convicted in a case involving $150 million in fraudulent bills of lading. “Years later, the case was made into a Spanish-language soap opera shown in

Colombia,” says Schnapp. “You never know what will come out of a case.” MOVING TO THE DEFENSE In 1989, a mutual friend introduced Schnapp to Mel Greenberg, the late cofounder of Greenberg Traurig. “Since I had both civil and criminal experience, it seemed like a good fit in terms of starting a whitecollar practice,” Schnapp says. “Originally, there were just two of us in the group, which has grown steadily through the years.” Since joining the firm, Schnapp has built a corporate client list that includes Lennar, PaineWebber, Smith Barney and Parsons Brinkerhoff, as well as prominent individuals. In the early 1990s, Schnapp was co-counsel with Roy Black in the defense of William Kennedy Smith in a highly publicized sexual battery trial that resulted in an acquittal. After Hurricane Andrew in 1992, Schnapp helped Lennar resolve issues related to its badly damaged residential communities. “We brought in a national expert on wind damage, and I drew on my own understanding of science in developing our approach,” he says. “We were able to show that the communities were built to compliance with the codes, and help the State Attorney’s Office understand the impact of a category 5 hurricane.” Reflecting on those matters, Lennar CEO Stuart Miller says, “Mark did a very good job in dealing with the issues we were confronting and helping us navigate those uncharted waters. Since then I have stayed in touch, and we have worked with Mark on additional matters . He is a careful attorney with a lowprofile approach who gives good advice.” Today, Schnapp’s clients include healthcare companies, multinationals and financial institutions. His cases run the gamut from violations of the Foreign Corrupt Practices Act to complex environmental issues. “Engineering school teaches you how to solve problems and finish projects,” Schnapp says. “In law, as in engineering, you decide where you want to go, and work backwards from there.” In his practice, Schnapp has defended a national engineering firm being investigated for alleged Clean Water Act violations, an investment banking firm under scrutiny for securitization of sub-prime loans, and a national distributor of diabetes supplies that


MARK SCHNAPP

was the subject of a Medicare fraud investigation. Another aspect of his practice is advising on the handling of internal investigations. “I’ve been called to the scene after investigators knock on the door with a search warrant,” Schnapp says. “Sometimes I’m trying to get information while the agents are interviewing people on site. But, I’m also seeing more companies launch their internal investigations as soon as they become aware of a possible problem. These matters need to be handled very carefully to avoid the pitfalls.” A LONG-TIME MENTOR When Schnapp was in his 40s, he decided to learn how to play the trumpet and took lessons with Gil Johnson, a professor at the University of Miami School of Music and a former principal trumpet for the Philadelphia Orchestra. “Learning to play was important to me, so I would take the trumpet on my trips and practice every chance I had,” he says. “I believe if you have an opportunity to learn something, you should go for it and try to be the best you can.” In keeping with that philosophy, Schnapp enjoys mentoring law students and young lawyers. “I’ve done that throughout my career,” he says. “I get a real sense of accomplishment from helping others, and plan to continue that commitment in the future.”

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

17


CRIMINAL DEFENSE ATTORNEYS

THERESA VAN VLIET: A Diligent Investigator

Camilla Broe was the first Danish citizen to be extradited to the United States when she was handed over to U.S. authorities in Miami in 2009 on drug trafficking charges dating back to 2003. In the early 2000s she had attempted to cooperate with the U.S. government through her prior lawyer. When they heard nothing in response to the attempts, Broe flew back to her homeland and her family. Years later she learned she had been indicted and was extradited to face the old charges. When she arrived in Miami in 2009 she hired Theresa Van Vliet to represent her. Van Vliet argued that Broe’s rights had been violated and eventually the federal court in Miami ordered that all charges against her be dropped. In fact, she was recently awarded compensation by the Danish Government for her time spent in Danish jails awaiting extradition. “When we investigated the facts of the case, the timing of the alleged activities and her indictment seemed to be wrong,” said Van Vliet, a partner in the Fort Lauderdale office of Genovese Joblove & Battista. “We found a number of those old pink phone messages, and we put together a timeline that convinced the judge that her Constitutional and statutory rights to a speedy trial had been violated.” Whether defending clients in whitecollar fraud cases or advising individuals when a case is still in the investigation stage, Van Vliet brings more than 30 years of experience – including a long stint as a federal prosecutor – to every matter. “As a defense attorney, you have to rely on your ability to investigate the case ahead of time, because the rules relating to discovery are more limited than in state courts.” Van Vliet 18

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

adds that she enjoys the challenge of learning the facts, finding out what really happened and building a solid case for her client. “I am very picky about the cases I take,” she adds. “I handle matters where there is a good shot at a successful outcome.” As a criminal defense attorney, Van Vliet’s practice areas include Foreign Corrupt Practices Act violations, Compliance violations, Healthcare fraud, International fraud, Money laundering investigations, Mortgage fraud, White collar litigation, Sanctions by the U.S. Department of Treasury’s Office of Foreign Assets Control. “I focus my practice on federal courts, and I am lucky to go up against skilled opponents and great lawyers,” she says. “You can’t present your client well in court if you haven’t done the preparation work. You also have to be able to react on your feet, so you have to know everything about the case, inside and out.” MAKING HER MARK Van Vliet was born in Massachusetts and moved to South Florida with her family in the 1970s. “I went to high school here, and my mother Elizabeth still lives in the house I grew up in with my brothers and sister,” she says. After earning a bachelor’s degree majoring in English at Trinity College in Washington, DC, Van Vliet returned to South Florida, earning her law degree, magna cum laude, at Nova Southeastern Law University in 1982. “My father Charles had encouraged all four of us to go to graduate school,” she recalls. “I had applied to Georgetown and Nova for law school, and came back after I had been laid off from my post college job during the recession of the 1980s. It turned out to be great decision.” At first, Van Vliet thought she might teach rather than practice law. But after a clerkship with Federal Judge James C. Paine, she found she enjoyed trial work. He encouraged her to apply to the United States Attorney’s Office in Miami. With her diligence and legal skills, she quickly made her mark as a prosecutor with the U.S. Department of Justice. As Chief of Narcotics for Main Justice during the Clinton Administrations and a Senior Litigation Counsel in South Forida, she successfully tried more than 40 federal jury trials including a 14-month long Racketeering Influenced Corrupt Organization (RICO) trial that

resulted in convictions for all defendants. She also oversaw national and international drug and drug money laundering policy, investigations and prosecutions, and dealt with national security classified information. Attorney General Janet Reno recognized Van Vliet for her outstanding performance and at the turn of the Millennium selected her to assist on a special project involving a terrorist plot against the Los Angeles airport. Additionally, she spearheaded an international investigation and prosecution of the highest echelons of Colombian-based money launderers and drug traffickers and received the Distinguished Service Medal for her work from the government of Colombia. She also received the Attorney General’s Award for Distinguished Service and the Drug Enforcement Administrator’s Award for Exceptional Service. And Van Vliet still enjoys being a teacher. She has lectured frequently on anti-money laundering compliance matters and has published an analysis of the USA Patriot Act of 2001 and its anti-money laundering provisions. She has also published updates to Moore’s Federal Practice on matters involving charging documents in criminal cases and asset forfeitures. BUILDING HER PRACTICE Van Vliet says her current criminal law practice includes a wide range of cases. She works closely with the bankruptcy attorneys at her firm in investigating potential criminal activities, such as Ponzi schemes or bank fraud. “We work to marshal assets and sources of recovery for the creditors and victims. I dig into the facts as in any case, and try to make sure that we work cooperatively with the law enforcement authorities,” she says. “Sometimes, that can lead to a faster recovery.” Since the victims in a criminal fraud and bankruptcy proceedings are often one and the same, Van Vliet says that trustee is often in the best position to quickly monetize assets and secure the funds for the eventual distribution to creditors and victims. “When that process goes well, there can be less upkeep and maintenance associated with the bankruptcy filing, resulting in more money for the victims and creditors,” she says. Van Vliet also draws on her experience as a trial attorney and federal prosecutor to advise


THERESA VAN VLIET

clients on the best strategy when facing criminal charges. “Many times people want to work things out with the government before charges are actually filed,” she says. “Unless there is something seriously wrong with the government’s case, I will often tell them their best chance to put the past behind them and move forward is to cooperate.” In those matters, Van Vliet starts a dialogue with federal prosecutors in hopes of achieving

a win-win result. “A client can turn his life around, while providing the government with good leads or information that we make sure is verified,” she says. “At the end of the day, I can go to sleep knowing I did my job and lived up to my own code of ethics.” On the personal side, Van Vliet recently married Dave Wolfe, a USAir employee whose family lives in Hawaii. “We enjoy flying to Hawaii to see my in-laws, as well as

bicycling along S.R. A1A,” she says. With no children, the couple cares for Molly, a golden retriever whose father won “best in breed” award at the 2013 Westminster Dog Show. Reflecting on her career, Van Vliet says, “I really enjoy helping people who are in difficult positions and get them out of trouble so they can move forward,” she says. “I want to keep on building my practice and keep my life rolling forward.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

19


CRIMINAL DEFENSE ATTORNEYS

JAYNE C.  WEINTRAUB: Compassion for the Underdog

Jayne C. Weintraub has represented many high-profile clients in her career as a defense attorney, including former Major League Baseball star Jose Canseco, performer Sean Combs and Minnesota Vikings player Leon Hoard. She’s also been a TV star and a frequent legal commentator on national media. But regardless of the client, Weintraub is a compassionate defender of the underdog bringing all her legal skills to bear on the case. “Growing up in North Miami in the 1970s, I could see that our society was not fair to everyone,” she says. “I always wanted to help people, and I believe that everyone accused of a crime is entitled to the best possible defense.” A Miami attorney who practices with her husband Jon A. Sale at Sale & Weintraub, she is also of counsel to Broad and Cassel and a member of the firm’s White Collar Criminal and Civil Fraud Defense Group. She represents individuals under investigation or charged with criminal offenses in federal and state courts, and has brought more than 100 jury trials to verdict. “Jayne is one of the hardest working attorneys I know,” says Robert DePriest, a former client. “Her ability to understand the nuances of my case and keep everyone focused on the facts, rather than all the innuendos and opinions, was critical to achieving my acquittal. She believed in me and was tenacious in her defense. I will always have a warm place in my heart for her.” LAUNCHING HER CAREER A native of Long Island, Weintraub moved to South Florida with her family, graduating from North Miami Senior High School, 20

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

before earning her undergraduate degree at George Washington University and her juris doctor degree at Nova Southeastern University. “ I saw the law as a profession where I could do some good things, particularly for children and teens,” she says. As a law student in 1979, Weintraub interned with the State Attorney’s Office, which was then led by Janet Reno. After passing the Bar, she went to work for her office. “I felt that was where I could give a teenager another chance and make a difference,” she says. “I loved that job and the opportunities to learn and grow as a lawyer were immense.” Within a year, Weintraub was trying murder cases, while learning from a team of seasoned lawyers. She went to murder scenes and watched as police retrieved evidence – the “real CSI” – or prepared search warrants as needed on a rotating basis. . “I found I loved everything about trial work,” she says. “I love the preparation, the procedures and the arguments. It really hooked me.” While still in her mid 20s, Weintraub was assigned to one of the nation’s toughest murder cases: the brutal 1982 slaying of 10-year-old Staci Weinstein in the family’s North Miami Beach home. Initially, her father, Marvin Weinstein, was suspected of the crime, but after a year-long investigation, police arrested two men who had been cleaning carpets in the neighborhood. John Donald Pierson Jr. pleaded guilty and was sent to prison, and Edward Robert Wasko was convicted of first-degree murder and sentenced to life in prison. “When you see a child like Staci beaten and shot to death, it’s really a heart-wrenching experience,” Weintraub says. “I always remember those young victims.” Weintraub later became an assistant state attorney, trying or handling more than 100 jury trials, including a con artist during the 1980 Mariel boatlift who bilked CubanAmerican families of their life savings by promising to bring their relatives from Havana to the U.S. One of her last cases was the trial of a husband for raping his wife while they were married. “The trial judge threw the case out, but we won on appeal and as a result made new law in Florida,” Weintraub says. “At that point, I knew it was time to move on.”

INTO PRIVATE PRACTICE In 1986, Weintraub opened her own practice with a partner who had also worked in the State Attorney’s Office. Within six weeks, she was in trial in a complex federal drug case that involved multiple drug conspiracies with 11 other attorneys and 12 clients and spanned several years. “This was my very first acquittal,” says Weintraub. “My client was a 24-year-old young man whose wife had just given birth in the middle of the trial requiring a recess for the day. He was accused of several different cocaine-related charges, but able to walk out of court a free man, and later became an air ambulance pilot, while that baby I watched being born is now married.” As a defense lawyer, Weintraub found herself representing clients in trials that were covered by Court TV. She also starred for two years in “Power of Attorney,” a daily syndicated Fox television show, before leaving in 2001 to help care for her mother, diagnosed with pancreatic cancer. A decade ago, talk show host Rosie O’Donnell called Weintraub about two young boys on trial for killing their abusive father in Pensacola. Ten-year-old Alex King, and his older brother Derrick had been convicted as adults of murdering their father. “They were being held in an adult jail and I was aghast at the circumstances of this case,” Weintraub says. “We were successful in having the verdict set aside and the judge granted our motion for a new trial.” The court ordered the parties to mediation, which resulted in Alex serving eight years in a juvenile facility until his 21st birthday, rather than being sentenced to life in prison with no parole for 25 years. Derrick received the same sentence and benefitted from our motions, also. “Rosie was responsible for giving these boys a new life, free of abuse and to make their own way,” Weintraub says. In a complex mortgage fraud case in Fort Lauderdale, Weintraub was able to win an acquittal for her client, while the majority of the other defendants were convicted. It was a complicated mortgage fraud case requiring knowledge of the intricacies of the banking procedures utilized at the time. The U.S. Attorney’s Office had its most senior and experienced trial counsel litigate the case. “This was a very hard-fought battle, but the


JAYNE C. WEINTRAUB

jurors came back with the right verdict, as my client was the good guy who had gotten entangled with the bad guys in the case,” she says. “He is the one client that a defense lawyer will say, ‘defending an innocent man is much harder than defending a guilty one.’ Watching a family and community come together for one person is really something. The shame in this case was that my client was ever indicted and charged in the first place.” Weintraub also represented Yahweh ben Yahweh, founder of the Nation of Yahweh movement, who had been convicted in federal court in 1991 of conspiracy to murder white people. “The state then charged Yahweh with multiple murders sought the death penalty against him,” says Weintraub, who with her partner was able to

win an acquittal on the state charges. After serving 10 years in federal prison, Yahweh was released on strict parole. When he later became ill with prostate cancer, Weintraub was successful in her petition to release him from parole, and he died in his home in 2007. A PASSIONATE ATTORNEY Throughout her career, Weintraub has been active in community and professional organizations. She was awarded a prestigious award (the Rodney Thaxton Award , Liberty’s Last Champions ) given by the Florida Association of Criminal Lawyers for her vigorous and successful defense in the “Boulder Boys “ case, the first federal death penalty case in the Southern District of Miami. Recently, she spoke at the

American Bar Association’s 2012 Spring CLE Conference on “Criminal Law in an Un-Civil Case, A Lawyer’s Guide to Handling the Intersection of Criminal and Family Law.” She’s also dedicated to her family, including husband Jon and their children, Michael, 21 and Jordan, 14. “As you might guess, we are big fans of basketball, especially the Miami Heat, Weintraub says. “I also enjoy photography and have been taking photos of our kids and sports for many years.” Noting that every trial presents its own challenges, Weintraub says she enjoys learning on the job. “I’ve had some phenomenal experiences in and outside the courtroom,” she says. “I’m passionate about my work, and feel privileged to be a defense attorney.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

21


NATIONAL LAW FIRMS Open New Offices in South Florida

22

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

Raul J. Valdes-Fauli joined one of the nation’s largest law firms this spring. “I needed a bigger platform for my practice,” says the long-time Coral Gables attorney who is now a partner in Fox Rothschild’s new South Florida office. And Valdes-Fauli is far from alone. In the past two years, many leading attorneys have joined national firms like DLA Piper, Foley & Lardner and Simon PLC in their recently opened South Florida offices. While each national firm has its own business plan, South Florida is perceived as an up-and-coming metropolitan region with a growing demand for litigation and transactional services. And as the global economic recovery continues, some national


NATIONAL FIRMS

firms are expanding their office networks to provide close-at-hand service to individual, family and corporate clients already residing in the region. However, the prime attraction for many firms is South Florida’s strategic location as the number one gateway to Latin America and the Caribbean. As Miami attorney Ramón Abadin, now a member of Sedgwick LLC, says, “South Florida is a dynamic international business center with a growing economy. It’s also a desirable place to live, attracting residential investment from around the world.” COZEN O’CONNOR Established in 1970, Cozen O’Connor ranks among the 100 largest law firms in the United States. With 575 attorneys in 22 offices on two continents, Cozen O’Connor represents a broad array of leading global corporations and middle market companies in practice areas that include litigation, business law, and government relations. Although the Philadelphia-based firm has had a Miami office for several years, it lacked a bricks-andmortar presence in Palm Beach County until this spring. “Expanding our presence and capabilities in the vibrant South Florida market is a priority for the firm,” says Cozen O’Connor Chief Executive Officer Michael J. Heller. “We look forward to continuing our expanded presence and capabilities in Florida.” Located in downtown West Palm Beach in the Waterfront Clematis building, the firm’s new office has seven attorneys including former partners at Edwards Wildman and Duane Morris. “Cozen’s decision to expand into Palm Beach County was a function of its overall strategy of expanding in practice areas where it has the deepest teams of attorneys,” says D. Scott Elliott, office managing partner, who practices with the firm’s Private Client Services group, representing high net worth individuals and families

and corporate fiduciaries. Elliott’s practice includes tax, business succession and charitable planning, as well as probate and trust litigation. “The firm has had a substantial private client and trusts and estates practice in New York and Philadelphia, with many clients living in Florida,” says Elliott. “In that regard, this office is a natural extension of those practice areas, and an ideal fit for me.” Other Cozen O’Connor attorneys will focus on real estate, corporate transactions, labor and employment, and commercial

litigation, adds Elliott. “Most of our attorneys have always practiced in national firms, and we see new opportunities to grow with Cozen O’Connor.” Richard Dunn, Cozen O’Connor’s Miami office managing partner added that the new attorneys bring significant depth to the firm’s Florida practice. “Their strengths in real estate, estate planning and corporate insurance are an excellent complement to our existing litigation practice areas,” he says. “We are thrilled to bring them on board, and to augment our Florida presence.”

D. Scott Elliott

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

23


JONES DAY Jones Day is one of the largest law firms in the world, with more than 2,400 lawyers including offices in Europe, Latin America and Asia. In April, the firm opened its 40th global office on Brickell Avenue in Miami under the direction of Pedro Jimenez, partnerin-charge, and Enrique ‘Rick’ Martin, office administrative partner. “In years past, the Latin American practices of many major law firms, including Jones Day, were centered in New York City, primarily to access the debt and equity markets,” said Steve Brogan, managing partner of Jones Day. “Today, corporate and business leaders in Latin America have increasingly made Miami their point of contact in the U.S. Jones Day’s expansion to Miami reflects the firm’s “continuing commitment to the rapidly growing Latin America market,” according to Jimenez, who expects the new office to grow to eight to ten attorneys in the next year. The office will focus on capital markets, mergers and acquisitions, lending, project finance Pedro Jimenez and restructuring. “We view Miami as a key business center for Latin America,” says Jimenez, noting the firm opened offices in Mexico City in 2009 and in Sao Paulo in 2011. “Our clients look to us for advice on doing business in Latin America. Having an office in Miami lets us better represent their interests in 18 other countries, including Colombia, Panama and Argentina. It also allows us to serve the firm’s many clients who now live in Florida.” Luis Riesgo, chairman of Jones Day’s 24

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

Latin America practice and partner-in-charge of the firm’s Brazil office, says, “Adding Miami to our long-standing offices in Madrid and New York, and our more recent expansion in Brazil and Mexico, makes us among the first integrated global law firms with a regional

approach to Latin America. In combination, these locations create a critical mass of legal capacity in key business centers of the Latin America region.” Jimenez said the Miami office will focus on capital markets, mergers and acquisitions, lending, project finance, and restructuring in Latin America. It will also have a significant focus on dispute resolution, including litigation, arbitration, issues and appeals,

labor and employment, intellectual property, executive compensation, and health care. His own practice focuses primarily on U.S. and cross-border transactions, including secured financings, and distressed acquisitions. “Along with our substantial capabilities in Mexico and Brazil, a presence in Miami allows us to establish a deep bench of gifted lawyers who can effectively guide our clients seeking to do business in the region,” added Brogan. “An equally important reason for opening in Miami is to handle the growing litigation docket coming out of the state. Our office in Miami will be staffed by lawyers who have the experience and ability to try cases throughout Florida.” A native of Miami, Jimenez began his career with White & Case in Miami, and moved to Jones Day’s New York office in 2006. Since then, he has been involved in high-profile matters, including the Chrysler and Dana restructurings, and led some of the firm’s largest cross-border restructurings, including those of Spansion Japan, Costamex, and PT Arpeni Pratama. “For me, this was a great opportunity to return home and reconnect with my former colleagues in this market, while building our firm’s international practice,” Jimenez says. “While many national firms are looking at South Florida to grow their litigation services, we see huge opportunities on the transactional side. South Florida has a wealth of Spanish- and Portuguese-speaking legal talent that we can draw upon when providing services to clients in Latin America.”


NATIONAL FIRMS

Kimberly Cook

Ramon Abadin

SEDGWICK LLP On April 1, San Francisco-based Sedgwick LLP acquired Abadin Cook, a boutique Miami firm led by Ramón Abadin and Kimberly Cook, its husband-and-wife founding partners. Founded in 1933, Sedgwick is celebrating its 80th anniversary as an major international litigation and business law firm that provides counseling, risk management,

litigation management, trial, appellate and transactional legal services to corporate clients. The firm has more than 370 attorneys in offices around the world, including an office in Fort Lauderdale that opened in 2009 and focuses on product liability, intellectual property, commercial, media and class action services. “Sedgwick takes pride in having a deep trial bench,” says Cook, who specializes in

FOX ROTHSCHILD After more than 40 years of practice, Valdes-Fauli joined Philadelphia-based Fox Rothschild in March with associate Thomas Oppenheimer. The national firm, which has more than 500 attorneys, has had an office in West Palm Beach since 2005. “Fox Rothschild had been looking to establish a Latin American practice, and Miami was a natural choice,” says ValdesFauli, whose practice is focused principally on representing businesses and high-networth individuals from Latin America and Spain in their U.S. business endeavors. “This was a very good fit, since almost every business sector in Miami – real estate, tourism, banking and trade – has something to do with Latin America.” From its new Miami office, Fox Rothschild’s legal services include tax, estate planning, real estate, intellectual property, immigration, litigation and Latin American work. “With his extensive ties to the local business community as well as

his international connections, Raul was the prime individual to help us realize our goal of expansion in South Florida,” said Mark L. Silow, the firm’s managing partner. Valdes-Fauli has also been a partner at several law firms in South Florida and was formerly managing partner of Fowler Rodriguez Valdes-Fauli. He was a senior tax counsel for Creole Petroleum Corporation in Caracas, Venezuela, and tax counsel for Standard Oil Company in New Jersey. He served as mayor of Coral Gables from 1993 to 2001, and currently serves as treasurer of the Spain-Florida 500 Years Foundation, chairman of the France Florida Foundation for the Arts and is Honorary Consul for the Republic of El Salvador.       “I’m looking forward to introducing Fox Rothschild to our unique market,” says Valdes-Fauli, who is aiming to grow the office to more than 20 attorneys. “We offer clients the right combination of local experience with the support of a strong national network.”

professional liability defense, complex litigation and catastrophic injury defense cases.  “There are not a lot of female trial lawyers in our region, and Ray and I form a unique package. We both worked with Gordon James, managing partner of Sedgwick’s Fort Lauderdale office, and it’s great to be together on the same team again.” “Joining the national firm gives Abadin and Cook’s local team the ability to service a larger client base,” says Abadin, who focuses on complex commercial, insurance and corporate litigation matters as well as specialty tort defense litigation and premises liability. Abadin notes that Sedgwick has given its new Miami team the flexibility to grow the office’s practice areas in keeping with the evolving needs of the market, both regionally and aboard. “I’m Cuban born and one of three bilingual attorneys in our office,” he says. “We have an international perspective, which helps in serving clients who have homes and investments in South Florida. Miami is a global city with plenty of room for newcomers, and we look forward to supporting that growth.”

Raul Valdez-Fauli

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

25


RECEIVERS to the RESCUE!

Court-appointed ‘guardians’

play a growing role in resolving disputes When investors are defrauded in a Ponzi scheme, when a lender wants to salvage a real estate asset without foreclosure, or when shareholders can’t decide on a dissolution of a partnership, a receiver can come to the rescue. Today, court-appointed receivers play a key role in untangling difficult financial situations. Unlike special masters, receivers have the power to operate a

26

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

distressed business, sell all or part of a company, or determine the best way to maximize the value of a real estate asset. In cases of fraud, a receiver’s role may include finding and recovering hidden assets on behalf of investors who were victimized by a criminal. “We enjoy wearing the good guy hat,” says Miami attorney David Levine, who has acted as receiver in several high-


RECEIVERSHIP

and co-chair of the firm’s Bankruptcy and Receivership Group, knows that Florida is an attractive state for con artists. “When the stock market is not performing well or interest rates are low, many retirees are susceptible to pitches to invest their money in “can’t miss” schemes at higher rates of return,” he says. “South Florida also has a highly mobile population, making it easier for criminals to blend in and flash the big boats, cars and houses they get from investors’ money. It doesn’t attract the same attention here as it would in Iowa or Ohio.” When the U.S. Securities and Exchange Commission (SEC) or other regulatory authority uncovers a Ponzi scheme or other type of investment fraud, and shuts it down, a receiver is often appointed to try to recover the victims’ funds. For instance, Levine served as the federal equity receiver in the case of Securities and Exchange Commission vs. Viatical Capital, Inc., et al., where investor claims totaled more than $50 million. To date, investors have received returns of more than 55 percent of their losses. Even though news articles about frauds and Ponzi schemes have made many Floridians cautious, Levine says this “cottage industry” continues to flourish. “A con man’s pitch could still hold some attraction for investors who have lost a chunk of their net worth,” he adds.

David M. Levine

profile fraud cases. “It’s very satisfying to get heartwarming letters from elderly victims who didn’t think they’d ever get any of their money back.” However, the majority of receiverships today revolve around distressed real estate assets. Unlike foreclosures and bankruptcies, which are trending downward, receiverships are on the rise. In some cases, they offer the lender more flexibility, as well as a faster settlement and lower overall cost in resolving the matter. “Receiverships can be extremely effective in stabilizing a property, adding value and recovering money,” says Miami attorney Peter Russin, an experienced receiver. Depending on the nature of the distressed situation, a receiver may need to engage an attorney, accountant or forensic professional

to handle various aspects of the case. “It’s important to appoint a receiver with the right skill set,” says accountant Maggie Smith, CPA, who often acts as a receiver. “You want to maximize the value of the business or real estate asset without costing an arm and a leg.” Because of the growing importance of receiverships, South Florida Legal Guide interviewed several leading professionals on recent trends in this sector. Here are their perspectives. RECOVERING INVESTORS’ FUNDS David M. Levine, a founding partner at Levine Kellogg Lehman Schneider + Grossman LLP (LKLSG) in Miami

Soneet Kapila

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

27


In these types of fraud cases, a receiver often needs to hire an attorney and a forensic accountant to pursue the paper trail and recover misappropriated funds. “The bigger cases require a large investment in time by the receiver and other professionals,” Levine says. “While the money returned to victims is usually not taxable – especially when the value of the assets recovered is less than the price the bad guys paid – a good tax professional is an important part of the team.” EXPLORING VARIED OPTIONS Soneet Kapila, CPA, founding partner, Kapila & Co. in Fort Lauderdale, has served as both receiver and federal bankruptcy trustee in a wide range of cases. A Tampa judge recently appointed Kapila as Chapter 11 bankruptcy trustee to oversee the liquidation of Universal Health Care Group Inc., a St. Petersburg insurer, and see if any assets could be found for its creditors. Craig Rasile “We have some shifts in our niche practice in fiduciary work,” says Kapila. “In the past six years, there has been a reluctance on the part of some creditors, financial institutions and lenders to enter the bankruptcy arena.” He adds that most Chapter 11 bankruptcy cases are selfliquidating, making them a less-preferred option for handling an ongoing business. Therefore, a creditor who is not comfortable with the borrower’s management may try to send the case into a state or federal court receivership, especially when the goal is to preserve the business rather than shut it down. “In many cases, receiverships provide more flexibility 28

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

property manager,” he says. “You need to put a team together to preserve the business and manage the case. There are substantial compliance, legal and tax issues involved in most receiverships,” he says. “Looking for a short-cut or taking a band-aid approach can expose you to a substantial amount of risk.”

and allow for more creativity in finding solutions,” Kapila adds, noting that the federal bankruptcy code is highly structured. For instance, there is no legislative structure governing the rights of parties to intervene in a receivership. “So the lender does not have to deal with a creditor’s committee,” he says. “In fact, there may be a higher level of success in dealing with them on a creditor by creditor basis.” When it comes to appointing a receiver, Kapila says it’s usually important to engage a person familiar with operating a business. “Even with a receivership involving an office building, it’s not enough to just hire a

FINDING LOWER COST SOLUTIONS Many commercial lenders find that appointing a receiver is an effective strategy for resolving a business loan in default, according to Craig Rasile, partner at DLA Piper in Miami. “There has been a clear increase in receiverships in recent years,” he says. “Receiverships are considered a more affordable way for a lender to acquire its collateral or to put a company that owns revenue-generating assets into a proceeding where those assets can be liquidated or monetized.” Rasile says his clients – including major banks like Bank of America and Wells Fargo, as well as private equity and hedge funds – are also concerned about the costs associated with foreclosing on a debt or forcing a company into bankruptcy. “There is a perception today that bankruptcy is more expensive,” he says. “You have to pay all administration costs in full before you can confirm a liquidation plan.” Other types of receiverships are also on the rise, adds Rasile who has acted as a receiver in Ponzi scheme matters and other cases handled by federal regulators. But with recent federal budget cuts, there may be a slowdown of SEC-related receiverships. Most of the securities-related


RECEIVERSHIP

receiverships involve offshore bank accounts, says Rasile. â&#x20AC;&#x153;Even though the companyâ&#x20AC;&#x2122;s books and records are always a mess, the banks keep records of their money transfers and you trace the assets all over the world,â&#x20AC;? he adds. â&#x20AC;&#x153;We hire professionals to chase those assets and recover those assets. These types of cases can be very challenging because they involve many aspects of international law.â&#x20AC;? With distressed commercial real estate assets, Rasile points to a potential downside in a receivership strategy. While the receiver can sell a property free and clear of liens, claims and other legal encumbrances, title companies have been reluctant to provide an insurance policy unless the owners consented to the sale. â&#x20AC;&#x153;Since a receivership means that management has been forced out of control, this position by the title companies has impacted the transfer of real property,â&#x20AC;? Rasile says. â&#x20AC;&#x153;No one wants to buy an asset without title insurance.â&#x20AC;?

One solution would be for the state Legislature to consider a statute that allows receivers to sell assets under terms similar to the bankruptcy code. â&#x20AC;&#x153;That would make it easier to clean up some of these problems,â&#x20AC;? he says. SERVING AS A â&#x20AC;&#x2DC;GUARDIANâ&#x20AC;&#x2122; In representing secured and unsecured creditors around the country, Fort Lauderdale attorney Charles â&#x20AC;&#x153;Chuckâ&#x20AC;? Tatelbaum is familiar with foreclosures, receiverships and bankruptcy matters. â&#x20AC;&#x153;We have seen a growing use of receiverships in foreclosure cases, ownership disputes, corporate dissolution disputes and partnership disputes,â&#x20AC;? he says. â&#x20AC;&#x153;Appointing a receiver is like naming a guardian for a child in a custody dispute when the parents canâ&#x20AC;&#x2122;t get along.â&#x20AC;? A partner at Hinshaw & Culbertson LLP in Fort Lauderdale, and a certified specialist in business bankruptcy law, Tatelbaum

represented a major motor vehicle floor plan lender in a national dealer bankruptcy case, recovering more than $150 million â&#x20AC;&#x201C; payment in full of principal, interest, attorney fees and costs. Tatelbaum says the number of receiverships, like bankruptcies, is a direct reflection of the national and regional economy. â&#x20AC;&#x153;There will always be business failures, but they increase in bad times,â&#x20AC;? he says. But unlike other business downturns, this time around U.S. interest rates were at record lows. The real problem has been liquidity, since lending restrictions are currently so tight that businesses find it difficult to borrow when their loans are called. â&#x20AC;&#x153;Receiverships are likely to continue at a similar pace, since lenders are not willing to grant loan extensions and the borrowers canâ&#x20AC;&#x2122;t replace their current financing with another loan,â&#x20AC;? he says. With a practice that spans the country, Tatelbaum says there are significant

+WUXTM`KWUUMZKQITTQ\QOI\QWVÂ&#x152;*IVSZ]X\KaIVLZMKMQ^MZ[PQX[Â&#x152; 4MVLMZJWZZW_MZTQ\QOI\QWVIVL_WZSW]\[

LEVINE KELLOGG LEHMAN SCHNEIDER + GROSSMAN LLP 6RXWK%LVFD\QH%RXOHYDUGÂ&#x2021;QG)ORRU0LDPL&HQWHUÂ&#x2021;0LDPL)ORULGDÂ&#x2021;SKÂ&#x2021;ID[

www.lklsg.com

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

29


Charles Tatelbaum

differences among states in handling failures of commercial assets. “Florida is looked on as an anomaly because we have non-lenderfriendly foreclosure laws,” Tatelbaum says. “Our state is seen as a haven for debtors.” In contrast, some states like Georgia take a non-traditional approach. “You can foreclose on an asset without going to court,” he says. “If there is a default on the loan, the lender just posts a legal notice that the property is for public sale.” Another group of states, largely in the Northeast and Midwest, uses a deed of trust rather than a mortgage to secure a loan. The owner or developer who borrows the money signs a document that conveys the property to a trustee for the benefit of the lender. If there is a default, the trustee can go to court, ratify the matter and sell the property in six weeks. 30

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

Maggie Smith

Like other professionals who handle distressed assets, Tatelbaum says its essential for a receiver to have appropriate experience. “When the dispute involves an operating business or multitenant property, a receiver needs to have the right skills and background,” he says. “Being a great attorney or mediator doesn’t necessarily make you a great receiver.” INSTITUTING CHECKS AND BALANCES Maggie Smith, CPA, a principal at Glass Ratner in Miami, has served as a court appointed receiver and as a Chapter 11 bankruptcy trustee since the 1990s. “The volume of receiverships has slowed down from the craziness of 2010-11, but is still higher than a decade ago,” she says. “I’m also seeing a change in the composition

of receiverships. There are more singleasset types, where the receiver operates the commercial real estate until it’s sold, foreclosed or resolved in some other way.” Smith is also seeing an uptick in the appointments of special masters as well as receivers to handle non-real estate businesses in financial distress. For instance, Smith was named a special master to examine the internal controls and cash flow records for a rock and sand mining company that is behind on its loan. “The lender wants to know the story and why it’s not getting paid,” she says. “There is more of this kind of activity on the loans that have been in forbearance, as the banks try to understand the business model and its operations.” In addition to appointing the right receiver for each case, Smith emphasizes


RECEIVERSHIP

the importance of crafting an appropriate receivership order. “That’s dictates what a receiver can do or not do,” she says. “Sometimes, orders can be too broad and give the receiver too much authority. That’s an important consideration since South Florida has a history of past fiduciaries who have used and abused those funds.” That’s why checks and balances, like comprehensive monthly reporting with inclusion of bank statements and source documents, is an important aspect of a receiver’s responsibilities. “Everyone needs to understand the cash receipts and what’s really in the bank,” she adds. On the other hand, sometimes receivership orders can be too specific or too detailed, such as limiting the receiver from spending more than a certain amount, such as $2,500, without court approval. In those cases, Smith says it may be better to word the order as “no more than $2,500 without approval in writing from both parties.” That ensures that “everyone is on board with what needs to be done without having to take precious court time,” she says. Smith says lenders and creditors should also be careful about what they ask for when seeking a receivership appointment. “The receiver is an officer of the court, and if there are life safety or building code issues in connection with a property, the receiver needs to address them,” she says. “Therefore, sometimes the lenders have to open up and put more money into a distressed situation.”

convicting the perpetrator of a fraud and helping the injured parties recover as much as possible. On the other hand, a receiver or a bankruptcy trustee doesn’t have to balance those two potentially conflicting goals. “Sometimes, we need to wait until there’s an indictment, but in many cases we get information that helps prosecutors achieve their goals as well.” Russin says there may be a falloff in business and investment fraud cases in the next few years. “A lot of these cases came to light during the downturn,” he says. “But because of human nature, frauds will exist from now until the end of time. It’s just that they are more likely to get discovered in bad times than good.” Today, much of Russin’s receivership work involves commercial real estate foreclosures. “Many times a lender includes a clause specifying the right to name a receiver,” he says. “That can provide a valuable option if the loan goes into default.” Russin says residential real estate

developers have learned to get larger deposits from their buyers, reducing the risk of default to a lender. “Since banks are not willing to lend at a high loan to value (LTV) percentage, you have a stronger financial foundation for many projects being created,” he says. “However, there is always the question of the level of market demand, which serves as a check on overambitious developers.” In general, Russin says South Florida lenders have learned that receiverships can be very effective in handling distressed assets. “But if you don’t find a good receiver or the costs pile up compared with the property’s value, you can wind up with more problems than when you started,” he says. “Having a professional with the right expertise is essential. For example, it’s unusual for someone to be an excellent receiver for a hotel, an apartment complex and a retail center. Finding a receiver who is a good match for the case can result in a cost-effective solution.”

WORKING WITH CRIMINAL PROSECUTORS One of the biggest challenges facing South Florida receivers is dealing with a criminal who is adept at hiding money, according to Peter Russin, co-founder, Meland Russin & Budwick. “Receivers need to be able to track and recover those assets,” he says. “They also have to find the intermediaries involved in those criminal actions. Pursuing the institutions that aided and abetted a fraud is a challenging type of litigation, but it is often successful.” Russin, who recently represented the victims in a Ponzi scheme involving Palm Beach Finance Partners, says federal or state prosecutors typically have two goals: SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

31


FROM LITIGATION TO TRANSACTIONS: REAL ESTATE MARKET RETURNING TO ‘NORMAL’ After many years of heavy litigation, South Florida’s real estate market is returning to “normal,” according to several leading attorneys. From zoning and entitlement work to structuring new ventures, completing contracts and closing sales, transactional legal work is on the upswing. “It’s starting to get exciting again,” says real estate attorney Lynda J. Harris, shareholder, Carlton Fields, West Palm Beach. “About a year ago, developers started coming back looking for zoning approvals for various condominium and rental apartment projects.” 32

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

Noting that real estate transactional work fell dramatically during the recession, Neisen Kasdin, office managing shareholder and head of Akerman’s land use practice in Miami, says, “It was our distressed property group that was keeping our attorneys busy. Now, the distressed properties are working their way through the system, and the transactional side has picked up.” Summing up the situation as of midyear 2013, Michael S. Greene, partner and real estate practice group leader, Boyd & Jenerette, P.A., Fort Lauderdale,” says,

“Things are not back to normal yet, but they are definitely getting there.” A CHANGING CONSTRUCTION SCENE Nowhere has the shift from litigation to transactions been more apparent than in the construction sector. “The recession hit many of our clients hard and fast,” says Stephen Reisman, vice chairman, Peckar & Abramson, one of the nation’s largest construction law firms. “They were caught with huge receivables and enormous downstream liability. After all,


REAL ESTATE

if the owner doesn’t pay the contractor, what happens to the subcontractors and suppliers. I’ve been in Miami most of my career and seen a number of cycles, but nothing as dramatic as the past one.” But now, the volume of those disputes is winding down and several new trends are impacting the transactional sector, says Reisman, who is board certified in construction law. Reisman’s firm offers full-service support for the construction community, including structuring new ventures, licensing, procurement and bidding, and project administration services. Major projects include the I-595 renovations, Fort LauderdaleHollywood International’s terminal 4 project, as well as high-rise residential and other commercial developments. First, a growing number of foreign contractors are entering the U.S. market by acquiring domestic companies or partnering with them. “The Europeans see a viable market in South Florida, while things at home are slow,” Reisman says. “Latin American contractors have always been active in this market, and see opportunities in the economic recovery. Overall, the globalization of the construction industry is quite striking.” Another trend affecting contractors is the push toward public private partnerships (P3) to design, develop, build operate, maintain and finance infrastructure projects like I-595 in Broward or the tunnel from PortMiami to I-395. In these cases, one concessionaire will put up the money to construct the project with repayment coming from ongoing revenue or some other source. Gov. Rick Scott is expected to sign a bill passed by the state Legislature this year that would expand the P3 model from Florida Department of Transportation (FDOT) to county and municipal projects. “Our public officials will be able to use this model to address our nation’s aging infrastructure, while stimulating the construction sector,” Reisman says. “In the future, the P3 approach could also be applied to hospitals, airports and civic buildings, as is now being done in many parts of Europe.” PALM BEACH COUNTY HEATS UP Throughout Palm Beach County, the pace of real estate activity is on the rise, according to Harris, who concentrates her practice in the

areas of real estate, finance, and land use and governmental approvals. “About a year ago, developers started coming back looking for zoning approvals for various condominium and rental apartment projects,” adds Harris, whose client base includes The Related Group in Miami, led by chairman Jorge Perez, as well as the Related Companies, based in New York, and Crocker Partners LLC in Boca Raton. “Jorge Perez has always wanted to be at the forefront of a market turn,” Harris says. “He

saw the inventory of distressed condos going down, and recognized a need for new luxury rental projects here.” Now, The Related Group’s plans include a hotel-condominium project in Miami, two condo projects in Fort Lauderdale and a 400-unit condo on the water in West Palm Beach. Crocker is also looking at developing luxury rental apartments in West Palm Beach, including one with a hotel component. “People whose kids are out of school and now live in big houses in suburbia

Michael S. Greene

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

33


MEGA PROJECTS COMING TO MIAMI With new development – small, large and massive – planned for metropolitan Miami, Akerman’s real estate group has “never been busier,” says Kasdin, who represents domestic, international private equity and institutional investors. “Our land use practice picked up in 2011 and has been going strong ever since.” Kasdin expects the current wave of new development to be more sustainable than the region’s hyper boom of the mid 2000s. “South Florida has emerged as a true international community, and Miami is the business capital of the Americas,” he says. “Many people from around the world are buying here for investment purposes, as well as for lifestyle and safety reasons. As our region becomes a magnet for foreign investment like London or New York, the real estate cycle will moderate with fewer steep peaks and sharp valleys.” In terms of new developments, Kasdin says the municipal review and approval processes are often smoother than was the case a decade ago. “Today’s developers are more sophisticated and their projects are better,” he adds. “In addition, cities are more receptive to the benefits of an increased tax base in the

are wanting to move to a more urban lifestyle where they don’t have to get in a car every day,” says Harris. On the commercial side, Related Companies is looking at a new office building in West Palm Beach, and finishing the architectural plans and drawings for a 400-room Hilton hotel near the Palm Beach County Convention Center. “The hotel market here is very interesting, as studies show there is a shortage of 1,200 rooms in West Palm Beach,” she adds. However, the challenge for new condominium, rental, hotel and office projects continues to be financing. “The Related Group started changing its contract structure to get up to 80 percent of the purchase price in stages from the buyer,” she says. “That’s a solution we’ve seen frequently in the past year or two and it’s been working for them. It also cuts out the speculative buyer.” Developers are also interested in the area around All Aboard Florida’s planned train station in downtown West Palm Beach. “Transit-oriented development sites are hot right now,” Harris adds. “We’re also seeing renewed interest in waterfront projects, since there are so few sites available along the Atlantic and the Intracoastal Waterway.”

Neisen O. Kasdin

34

Stephen H. Reisman

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

wake of the recession. However, real estate lending has not come back, and it’s hard to get construction loans, especially with condominium projects.” But the biggest change from the last development boom is that South Florida is attracting substantial investors on a global scale. “The big money is here in a major way,” says Kasdin, referring to Genting Group (Malaysia), Swire Properties (Hong Kong) and Miami-based Dacra, which is partnering with a Paris-based luxury retail private equity fund that includes LVMH Group. Genting Group’s Resorts World Miami is planning a large-scale mixeduse development with hotel, dining, entertainment, retail and commercial facilities on a 30-acre site overlooking Biscayne Bay that includes the former Omni Center and Miami Herald building. In the Miami Design District, Craig Robins’ Dacra is planning a master-planned residential, commercial and cultural development with a hotel and nearly two dozen luxury boutiques, as well as condominium and loft residences. Meanwhile, construction is well underway on Brickell CityCentre, a $1.05 billion mixed-use development in the heart of Miami’s financial district. “Brickell CityCentre is a transformational project that’s akin to what Swire had done in Hong Kong and Beijing,” Kasdin says. “It’s a great project that supports public transit and raises the bar for other developers. It should spur additional real estate and business investment, and further cement Miami’s place in the world.” SMALLER PROPERTIES ARE MOVING In most real estate upturns, investors first seek out trophy properties like Class A office buildings and new luxury condominium developments, says Greene, who concentrates his practice in real estate development and finance, construction, land use and zoning law, represents developers, owners, purchasers, sellers, landlords, tenants, contractors and others. “There has already been a wave of sales for these buildings, as well as for ‘fractured’ condos that can generate rental income,” he says. “Since the South Florida market is already coming back, prices are rising,


REAL ESTATE

IT’S STARTING TO GET EXCITING AGAIN,” SAYS REAL ESTATE ATTORNEY LYNDA J. HARRIS, SHAREHOLDER, CARLTON FIELDS, WEST PALM BEACH. “ABOUT A YEAR AGO, DEVELOPERS STARTED COMING BACK LOOKING FOR ZONING APPROVALS FOR VARIOUS CONDOMINIUM AND RENTAL APARTMENT PROJECTS.

Lynda J. Harris

and even investors who didn’t get the best possible deals are doing well now.” Today, smaller properties are now in play as the pace of buying and selling transactions accelerates, says Greene. Moderately sized office buildings, retail strip centers, and industrial properties are now being given careful consideration by buyers and investors interested in “non-mega” properties. For instance, Greene is representing an allcash buyer for a retail store, and a foreign investment fund that is acquiring office buildings near Miami International Airport. Transactions are also increasing in the healthcare residential market segment including adult living facilities (ALFs) and adult congregate living facilities (ACLFs). Greene says some real estate developers moved into this niche during the recession, but lacked the knowledge to manage the projects successfully over the long term. “This is a world for skilled operators rather

than dabbling developers,” says Greene, who represented a client that recently purchased a residential facility from bankruptcy. Greene says real estate transactional activity in Broward is somewhat slower than in Miami-Dade, which is attracting far more international investors. “Broward attracts Canadians, and some Brazilian buyers, while Miami has investors from eastern and western Europe, Central America and Latin America,” he says. “Many Europeans view the U.S. as a stable place to own income-generating property or to start a business without the high tax rates in their native countries.” However, financing remains a hurdle in many real estate transactions. Greene says most buyers understand they will have to “push harder” to the bottom line. In fact, buyers are now competing for many types of property, as the number of distress sales and overall inventory levels decline. “Prices are rising, especially on the residential side, and it’s

not clear whether there are enough wealthy international buyers to sustain all the projects that have been announced,” Greene says. Lack of suitable land for new development is also an issue throughout South Florida, especially for smaller homebuilders and developers. “The larger companies were able to buy land in the downturn because they had cash,” Greene says. “But the bread-andbutter homebuilders who would typically do a 50-60 lot project will have a tough time coming back.” Looking ahead, Greene says South Florida’s real estate market will continue to do well as long as out-of-state and international investors value the region’s many assets. “The combination of sun, sand and low taxes makes South Florida attractive on both the residential and commercial sides,” he says. ‘That’s been our historic appeal, and it will continue to keep us moving forward.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

35


The IRS Declares War on

OFFSHORE TAX EVASION BY JOSEPH A. DIRUZZO, III AND CARLTON L. TALBOT

From election-cycle news reports of Mitt Romney’s offshore accounts in Luxembourg and the Cayman Islands to the recent revelations that Apple has stashed its pot of gold beneath Ireland’s tax-favorable rainbow, offshore tax avoidance has been front and center in the public’s mind. Yet it is not just the brazen nature of these offshore tax strategies that has caught the eye of so many, it is also the enormity of the financial reality: the Tax Justice Network recently estimated that almost $32 trillion has been hidden in offshore banking hubs. U.S. Senator Carl Levin (D-MI) has stated, “The universe of offshore tax cheating has become so large, that no one – not even the United States government – could go after it all.” THE IRS IS NOW MAKING ITS BEST EFFORTS TO PROVE HIM WRONG. A 2006 report released by the U.S. Senate’s Permanent Subcommittee on Investigations revealed the alarming rate at which wealthy Americans were using offshore banking as a means of tax evasion. That report set the stage for what would become a war between 36

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

In July 2008, for example, the U.S. Department of Justice (“DOJ”) issued a John Doe summons to the Union Bank of Switzerland (“UBS AG”), then Switzerland’s largest bank. The summonses resulted in 300 bank accounts being initially disclosed, and led to UBS AG entering into a deferred prosecution agreement on charges of conspiring to defraud the United States government. As a part of this agreement, UBS AG was required to pay the U.S. $780 million and turned over information on approximately 5,000 U.S. accountholders. This blew the lid off of offshore tax evasion THE JOHN DOE SUMMONS and resulted in a snowball-effect of additional The IRS defines a “John Doe Summons” prosecution and worldwide investigation as “any summons where the name of the into offshore tax evasion schemes. individual taxpayer under investigation is Additionally, in early 2013, a John Doe unknown and therefore not specifically summons was issued to the oldest Swiss identified.” John Doe summonses have led to private bank, Wegelin & Co., which pleaded the IRS uncovering significant information guilty to federal tax charges for similarly regarding accountholders who are illegally conspiring to defraud the United States. failing to report their offshore assets and/or Most recently, in April 2013, DOJ issued income to the IRS. Since these summonses a John Doe summons to First Caribbean allow the IRS to seek information about unspecified taxpayers, information is collected International Bank (FCIB). Instead of on an extraordinarily broad and expansive scale pursuing foreign bank records directly, in this case the IRS served its summons on Wells from financial institutions wherever located. the IRS and offshore tax avoidance schemes. Since 2006, the IRS has taken tactical and calculated steps, equipping itself with an arsenal of weapons to help accomplish its goals. Economic turmoil and concern regarding the lost revenue from unpaid taxes has helped to reinforce the IRS’s initiative, and seven years later, 2013 looks the year the IRS may be on the verge of triumph. Let us take a look at some of these weapons that the IRS has used in its battle against offshore tax avoidance.


GUEST CONTRIBUTORS

Fargo here in the U.S., where FCIB maintained a U.S. correspondent account. One of the most powerful features of the John Doe summons is that DOJ can issue them repeatedly without having to build a criminal case against an institution or an individual. This provides the IRS with a weapon that is not only powerful and effective, but also has virtually unlimited ammunition. THE OFFSHORE VOLUNTARY DISCLOSURE PROGRAM Along with the issuance of John Doe summonses, the IRS has further established its initiative to combat illegal offshore tax havens by implementing the Offshore Voluntary Disclosure Program (OVDP).

Joseph A. DiRuzzo, III

The OVDP currently focuses on the main vehicles of offshore tax evasion – unreported foreign financial accounts and unreported foreign entities – examples of which include depositing unreported and untaxed income into foreign accounts and/or omitting investment income earned from the foreign account on tax returns. Under the OVDP, current tax evaders are encouraged to report previously undisclosed foreign accounts through significantly reduced penalties and elimination of criminal prosecution risks for evasion.

tax returns. Additionally, FATCA requires foreign institutions to report information directly to the IRS about financial accounts held by U.S. taxpayers or by foreign entities in which U.S. taxpayers hold substantial ownership interests. This reporting requirement extends to foreign banks, brokers, investment entities, and certain insurance companies. The sum of these IRS programs and initiatives are already reaping rewards for the U.S. government in terms of higher tax revenues. And as the U.S. government tries to shrink its budget deficits and national debt, the war on offshore tax evaders is only going to become bloodier.

For example, by entering into the OVDP, the IRS waives Foreign Bank Account Report (FBAR) non-compliance penalties, which range from $10,000 to the greater of $100,000 of 50% of the account balance per account per year for unreported foreign bank exceeding $10,000. Instead of applying these blanket penalties, the ODVP rates a specific taxpayer’s general degrees of willful tax evasion and the severity of the case. Based on this rating, the IRS then penalizes the tax evader at rates purported to be lower than the blanket amounts. The threshold limits for these penalties are a respective 27.5%, 10%, and 5% of the maximum foreign account balance based on the three different levels of willfulness.

Carlton Talbot

FOREIGN ACCOUNT TAX COMPLIANCE ACT Another arrow in the quiver of the IRS is that Foreign Account Tax Compliance Act, or “FATCA.” Since FATCA was signed into law in 2010, it has been used by the IRS to police offshore account transparency. FATCA requires certain U.S. taxpayers to report foreign assets that exceed certain thresholds. These reports are made on IRS Form 8993 as an addendum to annual federal

Joseph A. DiRuzzo, III, is a senior attorney with Fuerst Ittleman David & Joseph, PL and also a Certified Public Accountant. He concentrates his practice in the areas of tax litigation and controversy, tax law, fraud detection and litigation, corporate law, and white collar criminal defense. Carlton Talbot is a legal consultant at Fuerst Ittleman David & Joseph. He focuses his practice in the areas of customs and trade law compliance, administrative law, and international business transactions. SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

37


He Who Controls The Past Controls The Future:

CRAFTING AN EFFECTIVE ARBITRATION PROVISION BY GUSTAVO J. MEMBIELA AND JORDI C. MARTÍNEZ-CID

IMPORTANT CONSIDERATIONS IN DRAFTING AN ARBITRATION PROVISION With the continuing increase in crossborder investments, it bears reminding that companies must plan for the eventuality that parties may not see eye-to-eye in the future – something known but not always implemented. With increased investment comes an increased likelihood of disputes involving parties of different nationalities, multinational entities, or foreign sovereigns, which can be incredibly expensive and can seriously affect a client’s bottom line. Resolving cross-border disputes effectively and cost-efficiently requires a clear and thoughtful dispute resolution mechanism. As “[t]he end was contained in the beginning,” so too is an arbitration controlled by the provision contained in the deal documents. 38

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

Arbitration allows the parties to control many more aspects of the dispute resolution process than traditional litigation. This flexibility makes it critical that parties draft precise arbitration clauses that specify exactly what they want and how the proceedings should occur. Considering the following topics is fundamental to preparing an arbitration provision that captures the intent of the parties and avoids needless litigation and costs. 1. CONDITIONS SUBSEQUENT TO THE ARBITRATION It may be beneficial to require the parties to comply with certain requirements before a formal demand for arbitration is made. Some examples include submission of the claim to administrative process, waiting a number of days until arbitration can be

sought, and notice requirements. Including such a provision can assist the parties to better understand each other’s positions prior to initiating an arbitration. 2. SEAT OF ARBITRATION Of utmost importance is understanding the specific rules and practices of potential forums, which will govern how the arbitration will proceed. Also, certain areas of law, particularly discovery, may be governed by local law contrary to a party’s intent at the time it entered into the agreement. Parties should therefore decide whether they should address discovery or any other additional substantive law or procedure in the arbitration clause. It is critical that practitioners familiarize themselves with the particular forum’s rules before drafting the arbitration clause.


GUEST CONTRIBUTORS

In order to determine which forum is applicable, it is imperative to understand the parties and the nature of the transaction. Generally, some popular arbitration forums, each with their own specific rules and practices are: the International Centre for Settlement of Investment Disputes (“ICSID”), the London Court of Arbitration (“LCIA”), the International Chamber of Commerce Court of Arbitration (“ICC”), the United Nations Commission on International Trade Law (“UNCITRAL”), and the International Centre for Dispute Resolution (“ICDR”), the foreign branch of the American Arbitration Association (“AAA”). Further, certain regional trade agreements provide their own permanent courts to solve disputes, or allow qualifying disputes to be settled in international arbitration. 3. TIMING PROVISIONS The parties can agree on how long an arbitration can take from the demand to final resolution. Setting an unreasonable or unclear time limit can create jurisdictional and enforcement issues. It is important to note that some arbitration forums already impose time limits on a length of arbitration, while others have different provisions that provide for shorten time limits under their rules. 4. QUALITY AND NUMBER OF ARBITERS Parties can agree beforehand how many arbiters should serve and what qualifications they should or should not have. While a greater number of arbiters may help ensure an impartial result, each additional arbiter increases the costs and time necessary to reach resolution. In some instances the parties may agree that the arbiters can be chosen by the arbitration forum, or that the arbitration forum may do so only in the event that the parties cannot agree. Being too specific or demanding in terms of qualifications, however, may lead to delays as finding an adequate, available, and willing arbiter may be difficult. 5. CONFIDENTIALITY As opposed to court filings, arbitrations are conducted outside the public record and typically allow for greater confidentiality.

Certain forums already have rules providing for confidentiality. Parties, of course, may incorporate specific confidentiality measures in the arbitration provision. 6. LANGUAGE The arbitration provisions should make explicit the language the arbitration will proceed under. In the absence of an explicit language provision, some forums such as the LCIA and the AAA provide that arbitrations must be conducted in the language of the arbitration clause, while others, such as the ICC and UNCITRAL, give the arbiter the power to choose the language of the arbitration. 7. “DOMESTIC” OR “INTERNATIONAL” Some countries have specific laws that deal with the “domestic” versus “international” categorization of arbitrations, and this can have a significant effect on both the process and outcome of the arbitration. 8. COSTS AND ATTORNEYS’ FEES Without a provision dealing with costs and attorneys’ fees, allocation is at the discretion of the arbiter or the arbitration tribunal.

Gustavo J. Membiela

9. CONCURRENT, SUBSEQUENT, AND FINAL PROCEEDINGS A well-drafted arbitration clause should be understood as the exclusive or final resolution of a dispute. While there may be situations where the parties wish to provide for the option of arbitration but not foreclose the right to mediate or otherwise attempt to resolve the dispute in some other manner, the arbitration provision should make explicit the parties’ intent. While there are inherent risks and costs in any transaction, these can be lessened if parties take the small affirmative step of preparing detailed arbitration provisions. Gustavo Membiela is a partner in the Miami office of Hunton & Williams LLP where he handles a wide variety of commercial litigation matters, focusing on cross-border disputes and transnational arbitrations, including class action litigation. He has significant experience representing financial institutions of all sizes, both domestic and foreign, and in handling construction/ infrastructure disputes both in the United States and abroad. Jordi C. Martínez-Cid is an associate in the Miami office of Hunton & Williams LLP and a member of the firm’s international arbitration and transnational litigation team. He currently focuses on disputes against Latin American sovereigns. www.hunton.com

Jordi C. Martínez-Cid

Copyright © 2013 by Gustavo J. Membiela and Jordi C. Martínez-Cid. This article presents the views of Mr. Membiela and Mr. Martínez-Cid and do not necessarily reflect those of Hunton & Williams, its clients, or the South Florida Legal Guide. The information presented is for general information and education purposes. No legal advice is intended to be conveyed; readers should consult with legal counsel with respect to any legal advice they require related to the subject matter of the article. Responses are welcome] SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

39


Courts are shifting toward defendants in

TRANSITORY SLIP-AND-FALL CASES BY ELAINE D. WALTER

In April, the Third District Court of Appeal answered a hotly debated question related to premises liability. The court’s decision in Kenz v. Miami-Dade County determined that section 768.0755, Florida Statutes, could be applied retroactively. What’s the big deal? The big deal is that the burden of proof in slip-and-fall cases, where the slip and fall is alleged to be due to a transitory substance on the floor or ground, reverts back to the days before the section’s predecessor statute was enacted, and that burden now falls squarely upon the plaintiff 40

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

for any all cases presently pending in Florida trial courts. As a result, a greater likelihood now exists for a defendant in a slip-and-fall case to be successful in having summary judgment entered in its favor. Let’s look at the history of transitory substance slip-and-fall cases in Florida. Before 2001, the burden of proof in this sort of case was on the plaintiff. But in 2001, the Florida Supreme Court in Owens v. Publix Supermarkets, Inc., placed the burden on the shoulders of the premises owner or operator to establish that it exercised reasonable care

under the circumstances presented in the case2. The Legislature then enacted section 768.0710, Florida Statutes (2002), shifting the burden to the plaintiff to prove that the defendant “acted negligently by failing to exercise reasonable care in the maintenance, inspection, repair, warning, or mode of operation of the business premises3.” Under the statute, “[a]ctual or constructive notice” of water or other transitory substance was “not a required element of proof,” but “evidence of notice or lack of notice offered by any party [was to] be considered together with all of the evidence” to determine whether the plaintiff met the burden of proof4. So, under Owens, a defendant was required to affirmatively prove its reasonable care; while under section 768.0710 affirmative proof was not required of the defendant, but summary judgment in favor of a defendant was almost an impossibility. In 2010, the Legislature repealed section 768.0710 when it enacted section 768.0755, Florida Statutes (2010). The new statute once again requires the plaintiff to provide


GUEST CONTRIBUTORS

affirmative proof that the defendant had actual or constructive knowledge. Specifically, the plaintiff “must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it.5” This constructive knowledge can be proven through circumstantial evidence showing that either (a) “[t] he dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known about the condition,” or (b) “[t]he condition occurred with

1

2

3 4

Kenz v. Miami-Dade County, No. 3D12-571, 38 Fla. L. Weekly D922 (Fla. 3d DCA Apr. 24, 2013). At the time this article was written, the appellants in Kenz had moved for rehearing and for rehearing en banc. The court’s opinion is therefore not yet final. Owens v. Publix Supermarkets, Inc., 802 So. 2d 315, 331 (Fla. 2001). See also Delgado v. Laundromax, 65 So. 3d 1087, 1089 (Fla. 3d DCA 2011). § 768.0710, Fla. Stat. § 768.0710(2)(b), Fla Stat.

procedural in that it simply shifted the burden of proof to the plaintiff. Thus, the defendants argued that the statute must be applied retroactively7. For more than two years, the trial courts were divided on the retroactive application of the statute, both between and within circuits. The Third District’s opinion in Kenz, however, brings stability to the issue and requires retroactive application of section 768.0755 by all trial courts in the state, at least for now8. In Kenz, the court noted that, in determining whether a statute is procedural or substantive, “substantive law prescribes duties and rights, whereas procedural law concerns the means and methods to enforce those duties and rights9.” It also noted that, pursuant to Florida Supreme Court precedent, “issues relating to a party’s burden of proof are generally procedural.” It then held that “section 768.0755 is procedural in nature and applies retroactively….” Whether the Third District Court of Appeal’s sister districts will conclude similarly remains an open question. But for now, the trial courts of this state are required to retroactively apply section 768.0755, and summary judgment in favor of the defendant in a transitory substance slip-and-fall case has become much more of a possibility.

regularity and was therefore foreseeable6.” As soon as section 768.0755 became effective, the battle started in the trial courts as to whether section 768.0710 or section 768.0755 applied to causes of action accruing before the July 1, 2010, effective date of the new statute. Plaintiffs argued that the statute’s effect was substantive in nature, in that it required a new and additional burden of proof. Thus, they argued, the substantive nature of the statute required that it be applied prospectively only. Defendants, on the other hand, argued that the statute’s effect was purely

5 6

7

Elaine D. Walter, an attorney with the Coral Gables office of Gaebe, Mullen, Antonelli & DiMatteo, focuses her practice exclusively on appeals and trial support. She can be reached at 3035-667-0223, or through ewalter@gaebemullen.com

§ 768.0755(1), Fla. Stat. § 768.0755(1)(a)-(b), Fla. Stat. When conducting a retroactivity analysis, one of the first “key considerations” is to determine whether the change constitutes a procedural/remedial change or is a substantive change in the law. Generally, courts retroactively apply only remedial statutes, which do not create new rights or take away vested rights but operate only in furtherance of the remedy already existing. If the law constitutes a substantive change, either by creating new rights or taking away vested rights, there is

a presumption against the retroactive application of the change in law unless the Legislature has expressly stated to the contrary. Florida Hosp. Waterman, Inc. v. Buster, 984 So. 2d 478, 496 (Fla. 2008). 8

Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (finding that in the absence of inter-district conflict or contrary precedent for the supreme court, the decision of a district court of appeal is binding throughout Florida).

9

2013 WL 1748954, at *2.

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

41


Managing Wealth in

UNCERTAIN TIMES BY ORLANDO ROCHE

Looking back throughout the history of financial markets, uncertainty has been the norm rather than the exception.  This has been especially true throughout the new millennium, as the past 12 years have seen a series of booms and busts across a variety of asset classes culminating in the financial crisis of 2008.  Since 2008, global markets have found their footing after a series of central bank policy actions were implemented to stabilize and restore confidence in the global

42

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

financial system.  These actions have led to a slow, albeit unsteady, improvement in the economy and financial market performance.  Despite this improvement, uncertainties persist and investors continue to feel reluctant to put hard earned capital at risk, a sentiment we at Sabadell Bank & Trust completely understand. At the core of our investment approach is the principle of capital preservation and a keen focus on managing market risk.  Our


GUEST CONTRIBUTORS

process begins with gaining a thorough understanding of our client’s objectives based upon their requirements for cash flow, liquidity, taxes, and estate planning.  The next step involves an analysis and discussion of market risk.  In today’s market environment it is not enough to view risk solely through the prism of traditional analysis.  Our approach looks at risk beyond the basic understanding of market fundamentals to include a broad study of structural risk, technical risk analysis and behavioral risk analysis in order to have as complete a picture as possible of the investment landscape before putting client capital to work.  This discussion leads to gaining insight as to the client’s understanding and tolerance for market risk.  By matching the client’s needs and objectives to an appropriate risk profile we can proceed to the design and implementation of a strategic investment plan. The portfolio construction phase of our process takes into account the client’s unique circumstances and risk appetite and matches it to our firm’s investment outlook to ensure we are creating a strategic asset allocation that achieves the dual mandate of preserving capital while meeting the client’s objectives.  Sabadell has access to top tier investment managers across a variety of asset classes to ensure proper diversification when building our portfolios.  These outside managers are subjected to a strict due diligence process and must demonstrate their capabilities before being eligible for addition to our open architecture investment platform.  In addition to a stable of best of breed managers, we also have a traditional in-house investment team that manages a portfolio of large cap equities and municipal bonds, which can be added to our list of investment offerings to meet our client’s needs.  When constructing portfolios, we typically diversify client capital across a spectrum of assets to include global equities (domestic, international and emerging markets), global fixed income, and alternative investments including real estate investment trusts, Master Limited Partnerships, commodities and cash.  The percentages allocated to each asset class are dependent on each client’s specific needs and risk tolerance as reflected in their respective Investment Policy Statements.  We operate

within ranges in the strategic asset allocation to be able to make tactical adjustments at times that we feel are appropriate based on our outlook in the short to intermediate term.  This flexibility allows us to proactively reduce risk and take advantage of opportunities as they arise. Once a strategic asset allocation model is designed and implemented, we meet with our clients on a quarterly basis to review the progress of the plan, revisit the client’s Investment Policy Statement, and reassess the client’s risk tolerance to ensure that we are on track and aware of any changes in the client’s circumstances. Managing wealth in uncertain times requires a consistent repeatable process that takes into consideration a client’s long-term strategic needs and balances them against short and intermediate term risk and opportunities that avail themselves in the natural course of a market economy.  By focusing on capital preservation as the cornerstone of our approach we attempt to lower the volatility that markets have experienced in recent years and grow our clients’ portfolios in a consistent and steady manner.  By monitoring our progress and communicating with our clients on an ongoing basis, we can make adjustments along the way to ensure we are keeping up and meeting the client’s needs.  While we have seen an improvement in the global financial markets, we continue to believe that this process is essential to provide excellent results to our clients despite living and managing wealth in uncertain times.

Orlando Roche is the regional president of Sabadell Bank & Trust Miami-Dade County. He is responsible for overseeing private banking, wealth management and fiduciary services within the region. Roche has over 25 years of experience in private wealth management. Originally from Havana, Cuba, Roche was raised in Miami and is currently located in Sabadell’s Miami office. He earned a BBA from Florida International University with a major in Finance and Economics. www.sabadelltrust.com

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

43


High Demand for High-Rises Gives Way to a New Finance Model

BUYER-FINANCED DEVELOPMENT Becomes the New Normal BY ANDREW C. HALL

With demand for high-end residential condominiums quickly outpacing supply, developers are moving swiftly to introduce new inventory to the market.  Recovery is certainly underway, but financing challenges continue, and some developers are turning to the buyer-financed model to help fund the pre-construction and construction phases of a project. Not only does this method reduce the risk of financial loss, it also results in greater profits since it avoids interest expenses, substantial bank fees, and internal 44

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

costs associated with the construction draw process. While the benefits to the developer are abundant, certain risks do remain for the buyer and should be assessed before entering into a contract. Purchaser financing is a contract right that typically appears in a single line within a condominium purchase agreement.  That line provides that the developer may use all deposits in excess of 10 percent toward the soft and hard costs of development.  Deposits are increased during construction.  If the

project proceeds as planned, this model provides buyer financing for an interest-free loan without recourse.  The buyer faces larger risks in this financing model.  Because a condominium can only come into existence with the state’s approval of the appropriate declaration of condominium and related condominium documents, after construction of the building, usable deposits lack the character of either an interest in the property or a secured loan.  While a prospective purchaser retains the right to rescind a contract whenever there are material changes in the condominium documents, the contract purchaser will still remain at risk for refunds of deposit installments already used by the developer during the construction phase of the development The risks to a buyer are increased when developers also retain the right to borrow money from lenders for use in the acquisition, development and construction of the condominium.  The deposits that are used would convert into unsecured debts inferior to mortgages created in favor of lenders and mechanics liens for unpaid labor and materials furnished to the project.  At closing, the amount owed to lenders and/ or to lien claimants must be paid to deliver clear title to a contract purchaser.  However, a failed developer may not have adequate resources to achieve this result, much less refund any deposits already used.    Typically, the purchase agreement expressly provides that a contract purchaser has no liens against the condominium to be built with his or her money and, under all


GUEST CONTRIBUTORS

circumstances, will be inferior to lending obtained by the developer.  The absence of any lien right puts the purchaser at the bottom of the lists of creditors to be paid.  While the benefit for developers to use deposits for construction is apparent, protections for a purchaser are both limited and ineffective.  For example, if a 40-story condominium building is under construction, a contract purchaser of the

unit on the 39th floor will find himself significantly behind the economic eight ball if the building fails to be completed.  While a purchaser should request some form of protection in the form of a completion bond or other third party assurances to mitigate against a developer’s financial failure, this is unlikely.  Developers will not provide this protection voluntarily and individual purchasers lack the economic power to

compel the developer to provide this type of protection. While the real estate market is strong, properties may be built with buyer financing.  On occasion, there may actually be a benefit for purchasers if the developer passes any of the savings of interest, bank fees or other expenses avoided to the purchaser in the purchase price.  However, the monitoring role that banks play during the construction draw period is an intangible benefit that may affect any savings actually passed on.  If the market softens and a financial crisis reappears, it is unlikely that contract purchasers will be able to identify each other rapidly enough or have enough of a consensus to act in concert either in Bankruptcy Court or in routine litigation to complete an otherwise failing building.  Therefore, the risks relating to this tool are grave and should be considered by a buyer and his or her attorney before entering into this type of agreement.                    The Florida Supreme Court has rescinded condominiums from the economic loss rule except in product liability cases.  Condominiums are not traditional products.  Therefore, if litigation develops over failed condominiums, lawsuits for fraud as to the ability to complete will be a primary litigation vehicle against officers and controlling shareholders of developers and against realtors.  Because developers may not be able to respond to judgments in a failed real estate market, the litigation will shift to real estate professionals and lawyers who do not identify and inform their buyers of the risks of this development model. Andrew C. Hall is the managing partner of Hall, Lamb and Hall, P.A., a Miami-based law firm specializing in complex corporate, business and securities litigation. www.hlhlawfirm.com SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

45


Why Physicians and Attorneys Need

ESTATE PLANNING BY BEATRIZ RIVAS

Estate planning should play an integral role in financial planning, yet most people do not begin to think about estate planning issues until their health begins to deteriorate. According to a poll cited by Forbes, “only 44% of Americans report that they currently have any estate planning documents.” While there are many reasons why every person should have an estate plan in place, this article outlines why it is 46

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

imperative that physicians and attorneys do so early in their careers. HIGH LIABILITY Physicians and attorneys handle matters of significant importance to people’s lives. One of the side effects of this reality is that these professionals are often faced with professional liability issues. This is especially true for physicians in South Florida, many

of who practice without liability insurance. Estate planning early in a professional career, before potential liability is encountered, may provide a degree of asset protection that may not be available later in a career, for example, once plaintiffs or creditors assert a claim. Further, physicians and attorneys, as high net worth individuals, are attractive targets for liability arising from life-style related non-professional activities, such as liability


GUEST CONTRIBUTORS

for children or grandchildren, are met. Expenses incurred in probating an estate take assets away from fulfilling these goals. Individuals that die intestate can have their assets tangled in the court system for a significant period of time. This is especially true in the complex estates that physicians and lawyers may have. It is important to note that an estate plan is more than testamentary documents, such as a will and a health care directive. For example, what happens to a physician’s equity interest in her practice when she passes unexpectedly. If the physician leaves everything to her husband, do her business partners now have a grieving widower as a business partner in the continuing enterprise? This is an example of the type of issue that needs to be discussed and addressed as part of a comprehensive estate plan.

in connection with a car or boating accident, a business venture gone wrong, or a slip and fall accident at a property. Although, estate planning is used to ensure that an individual’s wishes regarding their personal, financial, and tax objectives are realized, the attendant asset protection benefits should not be overlooked. Taking control of estate plans provides physicians and lawyers an avenue to control their assets during life and death.

The Probate Process can be extraordinarily complex, expensive, and time consuming Procrastination and poor planning can mean high costs and significant time expenses for those left behind. One of the goals of estate planning is to ensure that ongoing obligations such as support for a spouse, children and/or grandchildren, the payment of debts such as a mortgage, the fulfillment of charitable pledges, and tuition

GLOBALIZATION OF ASSETS In today’s market, many young professionals are diversifying their investments. Some of these investments can include purchasing assets abroad, such as an investment in a real estate development in The Bahamas, a vacation or future retirement home in Costa Rica, etc. This trend heightens the importance of a comprehensive and timely estate plan that takes into account the globalization of our lives. Estate planning is a multi-faceted undertaking and does not lend itself to a “one-size-fits-all” approach. It is imperative that a knowledgeable and experienced attorney who knows your circumstances be involved in crafting an estate plan that meets your needs. Beatriz Rivas, Esq. Zumpano Patricios & Winker, P.A. 312 Minorca Avenue Coral Gables, Florida 33134 305-444-5565 www.zpwlaw.com SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

47


The basic approach reconciles income and expenses on filed tax returns with underlying records. Unreported income and exaggerated expenses are improper activity. This approach can only be used when the income is itemized and detailed in some form of record or bookkeeping. It includes individual customer contact to assess the actual unreported income. The aggregate applies when income is not detailed. Receipts documented by third parties are used to prove that income is higher than reported. It does not require proving what the extra income was; only that it exceeded what was reported. The Indirect methods are more commonly used because proper bookkeeping is not usually present when an individual is

nonexistent, inaccurate, or inadequate. Using the Net Worth method requires meeting all three of the following requirements. 1. Net worth previous to the period in question must be accurately calculated, 2. The Net Worth method must refute reasonable explanations of the person under review, and 3. There must be a clear connection between increase in net worth and currently taxable income. THE EXPENDITURES METHOD Is based on the principal that if it is found that subject’s expenditures exceed their reported income and they do not have a loss reported on their tax return, there must

After All, It’s Always About

THE MONEY!

BY STANLEY I. FOODMAN

A variety of commercial, civil and family law cases can be investigated with the use of the “Methods of Proof ” (methods) used by IRS special agents during criminal tax investigations. The Internal Revenue Manual (IRM) of procedures incorporates six methods, five of which are commonly used and detailed below. The IRM breaks down these methods into two categories: direct or “indisputable” methods and indirect or “circumstantial” methods. When using the indirect or circumstantial approach during an investigation, the IRM recommends using two of the methods to support findings. The Direct method or Specific Item method is best suited for matters of income understatements, expense overstatements, or fraudulent claims for credits and exemptions. Criminal and civil tax matters, other economic crime issues, commercial litigation and family law may contain all three of these conditions. It is best suited to situations involving a small number of clients or customers with large dollar per transaction amounts of business. It encompasses two approaches: the basic approach and the aggregate approach. 48

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

inaccurately reporting. Income may not be identifiable as it is in the direct method. So, income and expense is computed using several different approaches. According to reported cases, courts currently permit net worth, expenditures, bank deposits, and cash methods as viable indirect methods of proof. Based on the IRM, indirect methods are sustainable if, and only if, the defendant cannot provide logical and factual explanation on the discrepancies between computed and reported incomes.

be unreported income. Like net worth, expenditures also require a look at the period in question compared to previous years. It is used when the subjects’ net worth does not experience any significant change over the period in question. Rather they spend large quantities of money on consumable goods as opposed to durable goods that effect net worth. After negating any nontaxable income that the subject explains, whatever expenditures exceed the reported income is considered to be unreported income.

THE NET WORTH METHOD Income is calculated based on applications of asset accumulation, liability reduction, expenditures, and other financial data. The net worth under review is calculated and then compared to the net worth of the previous year. The change in net worth from year to year as adjusted is compared to the filed tax returns, financial statements, etc. Differences between income reported and increases in net worth constitute a measure of income not accurately reported. This method is most commonly used when dealing with individuals whose books are

BANK DEPOSITS METHOD If a subject deposits most of his or her income into banks, then the recommended method of proof is Bank Deposits method when access to bank statements is possible. This uses the bank account records to calculate understated income. This method is based on the idea that a subject is limited to three activities once money is received: spend it, deposit it, or hoard it. Deposits minus expenditures plus increases in cash in hand equals income under this method. Income under this method is then compared with reported income.


GUEST CONTRIBUTORS

Using the Bank Deposits method requires meeting all four of the following factors: 1. Existence of a profit producing business, activity, or profession, 2. Periodic and scheduled deposits into the business bank accounts of which the subject had control. 3. The deposits counted as income must be from taxable sources, and 4. Unidentified deposits must resemble income. CASH Using the Cash method, unreported income is calculated based on cash expenditures. It is an expansion of the expenditure method applicable to individuals or business taking part in business “outside of records.” It requires examining the extent of cash expenditures comparing them to non-taxable and declared income. This method is used when attempting to deal with a subject whose major fluctuations of wealth and business are done in currency. Using of the Cash method requires meeting all four of the following factors: An accurate opening net worth and cash on hand, The expenditures during period in review, A reasonable source for unreported income, and Knowledge of all potentially nontaxable sources of income. I have used these above methods as part of our work during a corporate embezzlement investigation requiring calculation of the amounts embezzled and the amounts retained and spent by the embezzler. Our findings were used during successful recovery negotiations with a bank that was compromised by the embezzler into aiding him. In a particular divorce case, we used these methods to convince the court that the husband was using his corporate entity to move and hide what should have been assets of the marital estate into other entities permitting him to maintain his actual style of living while claiming a reduced income stream. During an investigation of the alleged diversion of insurance proceeds

resulting from a natural disaster, we were able to use these methods to demonstrate how members of the board of directors of a condominium association used those proceeds to unjustly enrich themselves through unauthorized expenditures for the repair and restoration of their condominium units. In our experience working under attorney-client privilege and outside of the attorney-client privilege, we have been able to adapt these methods very effectively for use in other matters such as embezzlement/defalcation investigations, family law and commercial litigations. After all, it’s always about the money!

Stanley I. Foodman is CEO of Foodman CPAs & Advisors and a recognized forensic accountant and litigation support practitioner. Specializing in complex domestic and international tax matters, Foodman has served as an expert witness and forensic accountant for some of the nation’s most challenging, high-profile economic crime cases. Foodman and his team of accountants also assist clients with a full range of accounting matters including compliance, voluntary disclosure, corporate and individual taxation, family law litigation, estate and trust tax and wealth planning. Consistently ranked as one of the top accounting firms in South Florida, Foodman CPAs & Advisors assists clients locally, nationally and internationally. www.foodmanpa.com

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

49


In response to overwhelming frustration expressed up and down supply chains at every level of industry, from small business owners to America’s largest corporations and retailers, two bills were introduced in Congress this May in an effort to diminish the strength of “patent assertion entities” (PAEs), or “patent trolls” as they are pejoratively known.

percent of all patent litigation in the United States, with patent trolls filing four times as many cases today as they did in 2005. LEGISLATION The two bills introduced in Congress in May, one in the Senate, one in the House, address two different tactics patent trolls currently heavily rely upon to intimidate targets. The “Patent Quality Improvement Act”, introduced by Senator Charles E. Schumer (D-NY), seeks to diminish the threat of frivolous patent troll lawsuits by extending the post grant review process implemented by the recently enacted America Invents Act (AIA). Post grant review only allows an infringer to challenge the validity of a patent that was first-to-file under the new AIA system. Furthermore, a challenge is only acceptable within the first nine-months of a patent’s issuance. The AIA does provide another special review provision though for “Covered Business Method” (CBM) patents, which has no time limitation. Senator Schumer’s bill would expand this provision, if the bill passes

Resisting the

‘PATENT TROLLS’ BY JEFFREY D. FELDMAN

BACKGROUND According to an April report published by the Congressional Research Service, patent trolls, entities that gather and hold patents with no intention of putting them into production, collected $29 billion in direct costs from defendants and licensees in 2011, a 400 percent increase over $7 billion in 2005. Using patents containing broad and vague language, patent trolls have brought major corporations to the brink of collapse (Research in Motion), drained countless startups, and have even squeezed small business owners for using the scan-toemail function on their office copy machine. In a collaborative effort between Google, Blackberry, Earthlink, and Red Hat, the private sector generated its own report on the growth of PAEs last month as well. The report found PAE litigation now accounts for 62 50

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

CBM review, which currently only allows challenges of business methods for financial products (albeit with widely defined parameters), instead will apply to any patent covering “operations used in the practice, administration, or other operations of an enterprise, product or service.” In addition, Senator Schumer’s bill will also delete the eight-year sunset provision prescribed by the AIA for CBM review, making it a permanent opportunity for accused infringers. To file a CBM review costs $30,000, a small percentage compared to the cost of the average patent troll settlement ($1.3 million), or in-court litigation ($1.7 million). Litigation won’t necessarily invalidate a patent either. When the Patent and Trademark Office invalidates a troll patent, though, not only can the accused infringer breathe a sigh of relief, but in some cases, an entire industry.

The companion bill to Senator Schumer’s patent troll legislation is the “End Anonymous Patents Act”, which was introduced in the House of Representatives by Rep. Ted Deutch (D-FL) on May 17. The shell companies patent trolls operate in order to hide their identity from litigants and licensees has proved one of their most burdensome tactics. This short bill would require patent owners to notify the Patent and Trademark Office of all patent sales or transfers, as well as include the name of the real party in interest who is making the purchase. The same disclosure requirements would apply for any new patents granted, as well as for any current patents held on the date maintenance fees are due. GROWTH MET WITH RESISTANCE In 2012, 55 percent of all patent troll defendants made $10 million or less in annual revenue and for the first time, more non-tech companies were sued than those within the historically troll-plagued tech industry. As trolls continue to extend their borders in search of profit, though, they are being met with increasingly louder and more organized resistance. In the past year, pools that both large and small companies contribute resources to in order to defend against trolls have formed. Industry complaints, government hearings, academic articles, and even local news reports have all addressed the harm patent trolls are inflicting on the economy and have demanded change. The May legislation could be the beginning. Jeffrey D. Feldman, is a founding member of Feldman Gale, an AV Rated trial lawyer with more than 30 years of state and federal jury trial experience, Feldman has litigated patent, trade secret, trademark, copyright, false advertising, and unfair competition cases. Feldman enjoys complex litigation and particularly welcomes the opportunity and challenge of appearing as trial counsel late in a case. www.feldmangale.com


GUEST CONTRIBUTORS

beautiful moment when we as advisors have the opportunity to ask our clients what is really important to them. What are their values? What do they want their legacies to be? Once our clients share this very personal and cherished information, we have the chance to demonstrate how we can make those philanthropic dreams a reality through planned giving. Of course, beyond the added benefits and financial advantages of responsibly planned philanthropy enjoyed by the donor, the community receives increased financial

The Importance of

PHILANTHROPIC PLANNING to Financial, Estate and Tax Professionals

The generational transfer of wealth over the next 50 years is estimated to be $40 to $130 trillion, making now a perfect time to consider incorporating philanthropy and planned giving in your clients’ financial and estate programs. As Chair of The Foundation of the Greater Miami Jewish Federation and a financial advisor, I have seen firsthand how philanthropic planning offers benefits for both donors and the charitable agencies that they choose to support. Yet, I am frequently surprised to hear how often it is the clients, not their advisors, who raise the topic of philanthropic giving, a component of estate planning that adds a strong sense of fulfillment and satisfaction to all parties involved. Our donors tell us that their relationships with their advisors are stronger when they are given opportunities to discuss truly meaningful aspects of posthumous charitable support. The planned-giving conversation establishes much stronger and more satisfying relationships with clients, which also extends to their families. From my own practice and from conversations with members of our Professional Advisors Council, I know that the philanthropic conversation is a

resources through funds distributed to local institutions. In the case of the Greater Miami Jewish Federation, these beneficiaries are typically social-service, educational and humanitarian organizations. Learning more about the planned giving options available through The Foundation provides advisors with new ways to serve clients with an emotionally gratifying service. Whatever your clients’ long-term goals, interests and circumstances may be, there is a planned-giving option available through The Foundation of the Greater Miami Jewish Federation. For decades, hundreds of donors and their financial advisors have entrusted The Foundation to be their partner in the thoughtful planning of Jewish philanthropy and the management of charitable assets. John Bussel is the Chair of The Foundation of the Greater Miami Jewish Federation.

About the

FOUNDATION FOR MORE THAN FOUR DECADES, HUNDREDS OF INDIVIDUALS AND FAMILIES, INCLUDING MIAMI’S MOST RESPECTED PHILANTHROPISTS – AND THEIR ADVISORS – HAVE ENTRUSTED THE FOUNDATION OF THE GREATER MIAMI JEWISH FEDERATION WITH THE RESPONSIBILITY OF STEWARDING THEIR PHILANTHROPY. WITH MORE THAN $200 MILLION IN ASSETS UNDER MANAGEMENT, THE FOUNDATION OF THE GREATER MIAMI JEWISH FEDERATION IS HERE TO HELP YOU ASSIST CLIENTS IN PHILANTHROPIC PLANNING. WORKING CLOSELY WITH LEGAL, ACCOUNTING, INVESTMENT, FINANCIAL AND INSURANCE EXPERTS, OUR KNOWLEDGEABLE PROFESSIONALS CAN ANSWER ANY QUESTIONS THAT YOU OR YOUR CLIENTS MAY HAVE. THE FOUNDATION OF THE GREATER MIAMI JEWISH FEDERATION SUPPORTS THE FEDERATION MISSION THROUGH THE ACQUISITION, PROFESSIONAL MANAGEMENT AND DISTRIBUTION OF CAPITAL RESOURCES, AND PROMOTES CREATIVE AND MEANINGFUL PHILANTHROPY THROUGH ACTIVE PARTNERSHIPS WITH DONORS AND THEIR ADVISORS, AS WELL AS THROUGH LONG-STANDING ALLIANCES WITH AGENCIES, SYNAGOGUES AND OTHER COMMUNITY ORGANIZATIONS. OUR TEAM CAN WORK WITH YOU TO CREATE A PLAN THAT REFLECTS YOUR CLIENTS’ JEWISH VALUES, MATCHING SPECIFIC PHILANTHROPIC OBJECTIVES WITH THE ONGOING WORK OF FEDERATION, THE NEEDS OF THE COMMUNITY TODAY AND THE ANTICIPATED OPPORTUNITIES OF TOMORROW. THE FOUNDATION OF THE GREATER MIAMI JEWISH FEDERATION IS THE PLACE FOR YOUR CLIENTS TO CREATE THEIR LASTING JEWISH LEGACY. FOR MORE INFORMATION, CONTACT DANIEL STAFFENBERG AT THE FOUNDATION OF THE GREATER MIAMI JEWISH FEDERATION AT 787.866.8431 OR DSTAFFENBERG@GMJF.ORG, OR VISIT JEWISHMIAMI.ORG/FOUNDATION.

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

51


GUEST CONTRIBUTORS

Local Law Firm Marketers Count ON LMA

Just ask South Florida’s legal marketers where they go to pursue the latest trends in law firm marketing, meet the who’s who of the industry, and make valuable new relationships. Hands down, they will tell you it’s the Legal Marketing Association’s (LMA) South Florida CityGroup. In addition to the area’s professional practices marketing pros, we are seeing more law firm marketing partners and managing partners getting involved to ensure they are on the same page with their marketing directors. For more than two decades, LMA has been the voice of legal marketing professionals. Those looking to enhance their new business development skills have found that membership in LMA has been personally and professionally rewarding. The association addresses the needs of its members by providing continuing educational and professional development 52

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

and forums for the open exchange of ideas about the increasingly important role that marketing and new business development play within the legal marketplace. Nationally, LMA boasts more than 3,000 members in 17 countries. Locally, LMA’s South Florida CityGroup is the hub for legal marketing industry intelligence. Bi-monthly meetings bring together professionals from local and national firms of all sizes to learn about topics ranging from attorney selling skills, PR, social media, website marketing, CRM and even discussions of Florida Bar’s advertising rules. One of the most popular programs of the year is the General Counsel Panel, where three local corporate GCs share the ins and outs of hiring and evaluating outside legal counsel. Educational sessions are held at local law firm offices, restaurants and hotels. LMA invites law firms, vendors and media to host the programs, which

always include a buffet lunch or dinner. The sessions are serious in content, but don’t think law firm marketers don’t know how to have a good time. At least twice a year, the South Florida CityGroup holds mixers at some of the area’s trendiest venues. “It gives all of us the opportunity to let our hair down and connect without the formality of the education events,” said Susan Greene, marketing director at Becker & Poliakoff . “I can’t tell you the number of times I have seen our members find positions with local and out-of-town law firms by reaching out to their LMA contacts.” In addition, LMA hosts its annual conference and multiple, more intimate statewide mini-conferences aimed at educating legal marketing professionals and lawyers on the latest techniques and approaches to marketing law firms. More than the education, LMA is a resource for its members. Whenever they need of a resource or suggestions for a meeting venue, members are immediately tapped into a network of marketers who provide recommendations and access to their connections. The LMA also offers its members opportunities for their own professional development, including best practices on how to deal with common issues facing lawyers and law firms today. Other essential resources are the organization’s website (http://www. legalmarketing.org), Job Bank, List-Serve and Strategies Magazine. No question, LMA is valuable for anyone in professional services marketing wishing to learn more about the evolving world of legal marketing and for those looking to make valuable lifetime relationships. For more information about the LMA South Florida CityGroup, contact Michelle Martinez Reyes, mmartinezreyes@hunton.com; Jennifer Clarin, jclarin@boardroompr.com or Susan Greene, sgreene@becker-poliakoff.com.


CLASS OF 2013

TOP LAWYER class of 2013 These attorneys have been featured in our publication as “Top Up & Comers” for several years. Now, they will be included in our “Top Lawyers” listing starting with our 2014 edition to be published in December. For this Midyear issue, we asked several managing partners/shareholders to tell us a little about some of the attorneys who make up our “Class of 2013.” Here are their comments, along with a list of these new “Top Lawyers.” JASON R. ALDERMAN Litigation, Alternative Dispute Resolution (ADR) Alderman & Leali Miami Shores

Cristina Alonso “Cristina has already distinguished herself as an outstanding appellate and trial support attorney. Her insights into trial and appellate practice are astute, and clients and her colleagues recognize her as one of our go–to lawyers for the really challenging cases. Cristina will continue to grow professionally in the coming years.”

CRISTINA ALONSO Appellate Carlton Fields, P.A. Miami LOUIS P. ARCHAMBAULT Corporate and Business, Real Estate Pathman Lewis, LLP Miami

Charles M. Rosenberg Managing Partner Miami Office Carlton Fields

GAVIN S. BANTA Real Estate, Finance Angelo & Banta, P.A. Fort Lauderdale AMY BLOOM Litigation, Product Liability – Defense Squire Sanders West Palm Beach ERIC W. BOYER Insurance – Defense Quintairos, Prieto, Wood & Boyer, P.A. Miami

LORNE S. CANTOR Corporate and Business, Securities Greenberg Traurig, P.A. Miami

RICHARD R. CHAVES Construction Ciklin Lubitz Martens & O’Connell West Palm Beach

JONATHAN C. CHANE Litigation, Product Liability – Defense Greenberg Traurig, P.A. West Palm Beach

SCOTT M. COFFEY Corporate and Business, Mergers and Acquisitions Squire Sanders West Palm Beach

Amy Bloom “Every good lawyer loves practicing law and Amy is no exception. Amy has spent the majority of her career defending significant medical device and pharmaceutical products liability lawsuits. In doing so, she has earned the trust and respect of her colleagues, opposing counsel, and most importantly, Squire Sanders’ clients, which include some of the world’s largest pharmaceutical companies and medical device manufacturers. Amy’s strength lies in her extensive experience in her practice area and her innate attention to detail which helps her formulate creative defense strategies, find weaknesses in the arguments of opposing counsel, and, quite simply, to win. Amy is a fine lawyer, a team player, and a valued colleague.” J.B. Murray Managing Partner West Palm Beach Office Squire Sanders (US) LLP

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

53


GABRIELLE L. D’ALEMBERTE Personal Injury and Wrongful Death – Plaintiff, Product Liability – Plaintiff D’Alemberte Trial Firm Miami WILLIAM A. DEAN Nursing Home Litigation Ford & Dean, P.A. Aventura JAMES D. DECHURCH Litigation, Medical Malpractice – Defense Fowler White Burnett P.A. Miami BRIAN R. DENNEY Personal Injury and Wrongful Death – Plaintiff, Medical Malpractice – Plaintiff Searcy Denney Scarola Barnhart & Shipley P.A. West Palm Beach TASHA K. DICKINSON Trust and Estate Planning Jones, Foster, Johnston & Stubbs, P.A. West Palm Beach RANDY R. DOW Civil Litigation Page, Mrachek, Fitzgerald, Rose, Konopka & Dow, P.A. West Palm Beach STEVEN M. EBNER Litigation Shutts & Bowen LLP Miami FABIENNE E. FAHNESTOCK Healthcare Litigation, Corporate and Business Litigation Gunster, Yoakley & Stewart, P.A. Fort Lauderdale SCOTT M. FISCHER Personal Injury and Wrongful Death – Plaintiff Gordon & Doner, P.A. Palm Beach Gardens

54

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

JOSEPH G. GALARDI Corporate and Business Litigation Beasley Hauser Kramer & Galardi, P.A. West Palm Beach MICHAEL E. GARCIA Securities, Class Action Holland & Knight LLP Miami ADAM F. HAIMO Civil Litigation Bilzin Sumberg Baena Price & Axelrod LLP Miami ARALY HERRERA–BORGEN Personal Injury and Wrongful Death – Plaintiff, Medical Malpractice – Plaintiff Gamba & Lombana, P.A. Coral Gables MATHAI JACOB Corporate and Business Litigation, Civil Litigation Katz Barron Squitero Faust Miami CARLOS F. JUNCO Corporate and Business, Mergers and Acquisitions Bilzin Sumberg Baena Price & Axelrod LLP Miami MARTIN J. KEANE, JR. Litigation Genovese Joblove & Battista, P.A. Miami MARISSA D. KELLEY Corporate and Business Litigation, Labor and Employment Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. Fort Lauderdale PAUL B. KUNZ Litigation, Class Action Bander & Associates Miami

Richard R. Chaves “Rick Chaves is a partner in the Construction Law Group of Ciklin Lubitz Martens and O’Connell. Rick’s practice is devoted exclusively to the area of construction law, with a special emphasis on complex litigation claims. Throughout his career, Rick has represented all facets of the construction industry, including the preparation of contract documents, as well as representation of public owners, developers, contractors, design and engineering professionals, subcontractors and suppliers. Rick’s successful record at trial – including emerging claims such as Chinese Drywall class actions – is a testament to his client relationships and commitment to offering the highest level of legal representation. As an AV–rated attorney, Rick exemplifies the finest our law firm has to offer. His work ethic and tenacity in representing clients is unwavering, as his professionalism and practical approach to case management is designed to serve his client’s needs in the most efficient and economical manner possible.” Alan J. Ciklin Managing Partner Ciklin Lubitz Martens and O’Connell


CLASS OF 2013

Fabienne E. Fahnestock

Tasha K. Dickinson “The Lupus Foundation of America got it right when they named Tasha Dickinson as one of the “Best and Brightest” in its Southeast Florida Chapter, and no one was very surprised when The Florida Association for Women Lawyers recognized her as a “Leader in Law.” An impressive young attorney, Tasha is past president of the Florida Association for Women Lawyers, and a shareholder at the 38–attorney West Palm Beach firm of Jones, Foster, Johnston & Stubbs, P.A. As a Florida Bar Board Certified Wills, Trusts and Estates Lawyer, Tasha takes great pride in helping people with their unique and sophisticated estate planning needs. She is a graduate of the University of North Carolina School of Law and an active member in The Florida Bar and the American Bar Association, serving on many committees. The most important thing I would note about Tasha is that although this busy attorney exemplifies the best in her profession, she never compromises the quality time she spends at home in Wellington with her husband and their two active young children.” Sidney A. Stubbs Shareholder

“Fabienne Fahnestock brings a wealth of intellectual horsepower and experience to her representation of our business clients in state and federal court. She also counsels clients throughout Florida on issues as varied as business law, healthcare law, estate planning and probate litigation. But Fabienne is much more than this, she is a client counselor who puts her clients first working tirelessly to resolve their problems in the most efficient and cost–effective way possible. In this way she is integral to Gunster’s mission of being Florida’s law firm for business. Internally, she plays a vital role at Gunster as mentor to associate attorneys, co–chairs the firm’s diversity committee, assists with attorney recruitment, and coordinates continuing education programs for Gunster’s business litigation practice. She also acts as a mentor to law students and young attorneys outside of Gunster, and is one of our best ambassadors to the South Florida community.” George S. LeMieux Chairman Gunster

Brian is a trusted, no–nonsense advisor to many corporations for a good reason: In his practical approach to our clients’ matters, Brian is guided by his many years of court and arbitration experience—real experience that benefits our clients in dealing with and resolving the various issues that they face in their businesses each day—and by his own natural instincts as a litigator and trial lawyer. For the past eight years, our firm has been focused on delivering the most effective litigation and problem–solving approaches to our clients, and we work diligently to maintain the reputation that we have built over this time. Inclusion on the Top Lawyer list is always an honor; we are grateful to the legal community for its support.” Jay Kim Partner Kim Vaughan Lerner LLP

Jason Mazer Brian L. Lerner

“Kim Vaughan Lerner LLP is extremely proud to have Brian Lerner included in the South Florida Legal Guide’s Top Lawyer list. Brian has always been regarded by his clients and peers as one of the most thorough and efficient employment lawyers in South Florida and we are thrilled that he is receiving the recognition he deserves.

“Jason is a very talented litigator representing corporate and individual policyholders and third–party claimants in disputes with insurance companies. He joined our firm 12 years ago as an associate and worked his way to partner. As my mother said, “Cream always rises to the top,” and Jason is proof. He has expanded his practice to include the representation of bankruptcy trustees and court–appointed fiduciaries in all types of insurance disputes. His intelligence and analytical nature has helped mold him into a fine attorney, and Jason continues to receive accolades from clients and opposing counsel alike.” Hugh Lumpkin Managing Partner Ver Ploeg & Lumpkin

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

55


JASON D. LAZARUS Litigation Holland & Knight LLP West Palm Beach BRIAN L. LERNER Labor and Employment Kim Vaughan Lerner LLP Fort Lauderdale JORDAN M. LEWIN Criminal Defense/Criminal Law Jordan M. Lewin, P.A. Miami

Matthew M. Robbins “Matt Robbins has ample experience working on large multi–office deals as part of the strong corporate team in our Fort Lauderdale office. I am pleased by this recognition of Matt’s legal talents, which contribute to the success of our firm and our clients.” Glenn E. Goldstein Managing Shareholder Fort Lauderdale office Greenberg Traurig

Marc S. Shuster

MARSHALL DORE LOUIS Criminal Defense/Criminal Law Sinclair, Louis, Heath, Nussbaum & Zavertnik, P.A. Miami

“I have been privileged to watch Marc grow from a young associate into a valued partner, one who is passionate about his work, client service and giving back to our community. During that time, he has developed not only as a fine lawyer, but also as a trusted business advisor. I know clients would agree with me when I say that Marc richly deserves to be recognized as a member of the “Top Lawyer Class of 2013.””

ADAM D. LUSTIG Real Estate Bilzin Sumberg Baena Price & Axelrod LLP Miami

James L. Berger, Managing Partner Berger Singerman LLP

JASON R. MARKS Family and Marital Kluger, Kaplan, Silverman, Katzen & Levine, P.L. Miami JASON S. MAZER Insurance Litigation Ver Ploeg & Lumpkin, P.A. Miami JENNIFER QUILDON MILLER Admiralty and Maritime Hamilton, Miller & Birthisel LLP Miami PATRICK S. MONTOYA Personal Injury and Wrongful Death – Plaintiff, Product Liability – Plaintiff Colson Hicks Eidson Coral Gables SCOTT DANIEL PONCE Corporate and Business Litigation, Media Holland & Knight LLP Miami

56

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

Alfred J. Saikali “Al Saikali is a partner in the Miami office of Shook Hardy & Bacon and co–chair of the firm’s Data Security and Data Privacy Practice Group. Al joined Shook Hardy & Bacon in 2005, and since that time has focused his practice on complex commercial litigation. Over the last few years, Al has led the firm’s effort to establish and grow a practice area in data security and data privacy law. Al helps clients minimize the risks associated with the collection, use, storage, and disposal of sensitive information such as financial, medical, and confidential consumer information. Al helps companies prepare for a potential data breach and he develops programs, policies, and procedures that comply with U.S. and international laws regulating sensitive information. For clients that have suffered a breach, Al directs the breach response efforts, provides advice about legal obligations, leads internal investigations, and responds to law enforcement and regulatory inquiries, and in this fashion, minimizes the risks associated with the breach. A Certified Information Privacy Professional accredited by the International Association of Privacy Professionals, Al maintains a blog about data security and privacy issues, and he is often cited by the media about issues relating to data security, data privacy, technology, and commercial litigation.” William P. Geraghty Managing Partner Miami Office Shook Hardy & Bacon


CLASS OF 2013

Jennifer Q. Miller “Jennifer Miller is a role model for a huge cross section of women – women of color, Caribbean women, women attorneys, women entrepreneurs. She is someone who has never looked at barriers as obstacles but rather challenges to be met and overcome through hard work and dedication. That dedication, coupled with her keen legal mind, has carried her to the top of her field as a successful defense trial attorney representing major corporations such as Walt Disney World Co., AIG Insurance, and Royal Caribbean Cruises. She is the co–founder of Hamilton, Miller & Birthisel and her entrepreneurial and legal talents have propelled us from a three–attorney firm with one office in 2006 to a 29–attorney firm with offices in all major cities in Florida, New York, Jamaica, Bahamas, and the U.S. Virgin Islands. We are all exceedingly proud of and inspired by her accomplishments.” Jerry D. Hamilton Managing Partner Hamilton, Miller & Birthisel 

JANPAUL PORTAL Medical Malpractice – Plaintiff The Ferraro Law Firm Miami

MARIA H. RUIZ Product Liability – Defense Kasowitz, Benson, Torres & Friedman LLP Miami

BRETT C. POWELL Appellate, Trial Practice Powell Law Firm Palmetto Bay

ALFRED J. SAIKALI Technology Shook, Hardy & Bacon L.L.P. Miami

LORENZ MICHEL PRUSS Corporate and Business Litigation Dimond Kaplan & Rothstein, P.A. Miami

JASON A. SETCHEN Family and Marital Jason A. Setchen, P.A. Miami

MATTHEW M. ROBBINS Corporate and Business, Securities Greenberg Traurig, P.A. Fort Lauderdale

BRIAN M. SEYMOUR Environmental, Real Estate – Land Use and Zoning Gunster, Yoakley & Stewart, P.A. West Palm Beach

DANIEL B. ROGERS Appellate, Corporate and Business Litigation Shook, Hardy & Bacon L.L.P. Miami SCOTT M. ROSSO Corporate and Business Litigation, Insurance – Defense Kubicki Draper Fort Lauderdale

MARC S. SHUSTER Real Estate, Corporate Berger Singerman LLP Miami

JEREMY E. SLUSHER Corporate and Business Litigation, Construction Litigation Kubicki Draper West Palm Beach ALICE SUM Corporate and Business Litigation Fowler White Burnett P.A. Miami JAMES JAY THORNTON Labor and Employment – Management, Corporate and Business Litigation GrayRobinson, P.A. Fort Lauderdale LESLIE MILLER TOMCZAK Real Estate, Construction Akerman Senterfitt Fort Lauderdale WILLIAM R. TRUEBA, JR. Intellectual Property Espinosa Trueba, PL Miami

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

57


PROFESSIONAL PROFILES

STEVEN D. BERLIN

MICHAEL DIAZ, JR.

TAXATION, LITIGATION SUPPORT

INTERNATIONAL, INTERNATIONAL LITIGATION

FOODMAN CPAS & ADVISORS 1201 BRICKELL AVE., SUITE 610 MIAMI, FL 33131 305-365-1111 STEVE@FOODMANPA.COM WWW.FOODMANPA.COM

DIAZ REUS & TARG LLP 100 SE 2ND ST., SUITE 2600 MIAMI, FL 33131 305-375-9220 MDIAZ@DIAZREUS.COM WWW.DIAZREUS.COM

Steven D. Berlin focuses on domestic and international tax, forensic accounting and litigation support services. He has worked in both public and private accounting for more than 30 years, with clients in a wide range of industries including finance, law (economic crime and family law), retail and real estate. Berlin also assists international clients with voluntary disclosure matters. He has served as an expert witness with the U.S. Attorney’s Office in the Southern District of Florida in matters involving money laundering, bank fraud and Medicare fraud. He has also been a presenter at a conference of assistant U.S. attorneys in the area of financial statement analysis. Prior to his work at Foodman, he was vice president and co-founder of Insight LLC., an entrepreneurship and financial literacy training company for young adults. He also taught business at a local preparatory school, and maintains an interest in education and financial literacy.

JOSEPH A. DIRUZZO, III

STANLEY I. FOODMAN

TAX

TAXATION, LITIGATION SUPPORT

FUERST ITTLEMAN DAVID & JOSEPH, PL 1001 BRICKELL BAY DR., 32ND FLOOR MIAMI, FL 33131 305-350-5690 JDIRUZZO@FUERSTLAW.COM WWW.FUERSTLAW.COM

FOODMAN CPAS & ADVISORS 1201 BRICKELL AVE., SUITE 610 MIAMI, FL 33131 305-365-1111 STANLEY@FOODMANPA.COM WWW.FOODMANPA.COM

Joseph A. DiRuzzo, III, is a senior attorney with Fuerst Ittleman David & Joseph, PL and also a Certified Public Accountant. He concentrates his practice in the areas of tax litigation and controversy, tax law, fraud detection and litigation, corporate law, and white collar criminal defense. DiRuzzo has tried more than 50 civil and criminal cases at the federal and state level as well as in the U.S. territorial courts. In 2013 alone, he has argued cases before the Third and Eighth Circuit Courts of Appeal and has two additional oral arguments scheduled before the Eleventh Circuit. With a background as both an attorney and a CPA, DiRuzzo has the ability to view issues from different perspectives to provide a fully integrated approach, combining law, accounting, and business acumen to provide valuable legal support to his clients. DiRuzzo is admitted to practice in Florida, New York, New Jersey, and the Virgin Islands. He is also licensed as a Solicitor in England and Wales.

58

Michael Diaz has been engaged in the successful representation of Fortune 1000 multinational corporations and foreign government entities involving high stakes regulatory, civil, arbitration and criminal matters, Mr. Diaz counsels and plans preventative litigation strategies, conducts parallel investigations, and represents his clients before all administrative and governmental agencies, arbitral bodies, the courts, and investigative and charging grand juries. Diaz has appeared before arbitral tribunals, state and federal trial and appellate courts throughout the United States and as advisory co-counsel outside the United States in international litigation and arbitration matters. Diaz is a certified anti-money laundering specialist with experience in handling complex commercial and financial fraud cases, asset recovery, and white collar criminal defense. Diaz has defended and investigated well known Latin American money laundering and public corruption cases from Montesinos to Aleman/Jerez and from Casablanca to Rosemont, and Ponzi schemes from Madoff to Stanford.

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

Stanley Foodman, CEO of Foodman, CPAs & Advisors, is a recognized forensic accountant and litigation support practitioner, specializing in complex domestic and international tax matters and economic crime. He is bilingual (English/ Spanish) and provides hands-on expert assistance to clients on matters including corporate and personal taxation, compliance, voluntary disclosure, estate and trust tax and wealth planning. He has served as an expert witness and forensic accountant for some of the nation’s most high-profile economic crime cases. Foodman is a former auxiliary special agent for the Florida Department of Law Enforcement with specialization in economic crime – money laundering, bank fraud, public corruption and discovery of hidden assets. He is also a former consultant to the Miami office of the U.S. Attorney for civil RICO money laundering recoveries. Foodman received the 2010 Key Partners Award from the South Florida Business Journal. A frequent speaker on tax matters, he has also been named one of the “Top CPAs in South Florida” by South Florida Legal Guide every year from 2007-2013.


PROFESSIONAL PROFILES

ADAM S. HALL

ANDREW C. HALL

BUSINESS LITIGATION

BUSINESS LITIGATION

HALL, LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 305-374-5030 ADAMHALL@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

HALL, LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 305-374-5030 ANDYHALL@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

Adam S. Hall handles matters involving complex corporate and business litigation. In addition to commercial litigation, Hall focuses his practice on cases involving disputes between businesses, professional malpractice, securities, real estate, and probate disputes. Recognized for his relentless advocacy on behalf of clients, he has litigated cases involving broker-dealer disputes, will contests, breach of fiduciary relationships, construction disputes, and malpractice disputes involving law firms or accounting firms. Beyond his legal work, Hall is actively involved in the South Florida community. Hall currently serves on the Greater Miami Jewish Federation South Dade Branch Board of Directors. Hall has also served on the board of directors for the United Way of MiamiDade County and has been a member of the executive committee for the United Way’s Young Leader division, including service as its chairman. Hall also maintains strong ties to the University of Florida, where he earned his law and bachelor’s degrees with honors. He is currently a member of the University’s Levin College of Law Alumni Council and serves on the alumni advisory board for Florida Blue Key, of which he was previously a member.

DWIGHT L. HILL EXECUTIVE VICE PRESIDENT

SABADELL UNITED BANK, N.A. 1111 BRICKELL AVE., 30TH FLOOR MIAMI, FL 33131 305-482-3474 DWIGHT.HILL@SABADELLUNITED.COM WWW.SABADELLUNITED.COM

Dwight L. Hill is executive vice president, Sabadell United Bank in Miami. Hill provides financial advice and assistance to South Florida attorneys and law firms. He works with startup firms, merging firms and growing firms that need support with their transactions, working capital and longer-term financing. Hill earned his bachelor’s degree in business from the University of Florida in 1978, and has been with Sabadell United Bank, N. A. (formerly Mellon United National Bank) since 1984. He is responsible for business development, strategic planning, and implementation of new services in the South Florida market. Hill currently serves as chairman of the American Red Cross Greater Miami & The Key. He is also a board member of CarrFour Supportive Housing, and Florida Bankers Association, as well as a member of the Greater Miami Chamber of Commerce’s audit committee.

Attorney Andrew C. Hall has tried cases arising from some of the nation’s most significant historical events. From the Watergate trials in the 1970s to the Ohio savings and loan crisis in the late 80s, to the 2000 terrorist attack on the USS Cole, Hall’s trial skills are recognized as among the top echelon of litigators in the nation. Recently, Hall secured a $2.8 billion judgment on behalf of a Cuban expatriate for damages stemming from the continued terror attacks launched against his family by the Cuban government. He has been recognized as one of “The Best Lawyers in America” by Best Lawyers for over 10 years. Additionally, he is regularly featured in Super Lawyers and Florida Trend’s Legal Elite as among the top commercial litigators in the state. He has been recognized as a “Most Effective Lawyer” by the Daily Business Review for the past three years. He is AV rated by Martindale Hubbell, the highest independent peer-based rating available to an individual lawyer.

ADAM J. LAMB BUSINESS LITIGATION

HALL, LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 305-374-5030 ALAMB@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

Adam J. Lamb is a partner at Hall, Lamb and Hall whose practice is focused on commercial litigation including shareholder and partnership disputes, intellectual property litigation, legal malpractice, and real estate litigation. Lamb has been recognized by a number of publications, including the South Florida Legal Guide, and has received the highest AV peer review rating by Martindale Hubbell. An active member of the legal community, he is a member of the American Bar Association, the Miami-Dade County Bar Association, the American Association for Justice, and the Greater Miami Chamber of Commerce. Lamb received his bachelor’s degree from the University of Pennsylvania and his juris doctorate from the University of Florida. Lamb is a member of The Florida Bar and is admitted to the U.S. District Court, Southern District of Florida. Additionally, he has litigated various federal and state cases under pro hac vice status in New York, New Jersey, Michigan, and the District of Columbia.

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

59


PROFESSIONAL PROFILES

PATRICK G. MORRIS

VICE PRESIDENT – PROFESSIONAL BANKER

SABADELL BANK 9100 S. DADELAND BLVD. MIAMI, FL 33156 305-670-5122 PATRICK.MORRIS@SABADELLBANK.COM WWW.SABADELLBANK.COM

Patrick G. Morris brings more than 30 years of experience to his role as vice president, professional banker with Sabadell Bank, serving professionals in meeting their financial goals. His career started as a banker with Chase Manhattan Bank in New York City prior to moving to Miami in 1990. Morris most recently served as chief development officer of the YMCA of Greater Miami. He was president and CEO of the non-profit organization Hands On Miami, which he founded in 1993. Morris has more than 25 years of experience conducting community outreach campaigns, volunteer initiatives and fundraising. Morris was previously recognized by the GMCC’s Leadership Miami program as one of Miami’s outstanding leaders, and was also awarded The Wilkie D. Ferguson, Jr. Bar Association Outstanding Community Servant Award and the Coral Gables Chamber of Commerce’s Diamond Award for Non-profit Excellence. Morris has a bachelor of arts degree in international affairs and a master of business administration (MBA) degree from The American University, Washington DC. He studied at the University of Antwerp and had a graduate fellowship to the Center for International Studies, Fujinomya, Japan.

COMMERCIAL LITIGATION, HEALTHCARE LITIGATION

ZUMPANO, PATRICIOS & WINKER, P.A. 312 MINORCA AVE. CORAL GABLES, FL 33134 305-444-5565 LPATRICIOS@ZPWLAW.COM WWW.ZPWLAW.COM

Leon N. Patricios leads the litigation practice at Zumpano Patricios & Winker, P.A. He focuses on healthcare-related litigation, including managed care contract disputes, complex commercial cases, and employment related litigation. Patricios also has experience in ad valorem tax and family matters. His peers have elected him to the list of “Top Lawyers in South Florida” as published in the South Florida Legal Guide. Patricios is admitted to practice in Florida before all of its state courts. He is also admitted to practice in the U.S. District Courts for the Southern and Middle Districts of Florida as well as the U.S. Court of Appeals for the Eleventh Circuit. In addition to appearing in court, Patricios has represented clients before the Equal Employment Opportunity Commission, the Department of Labor, the Division of Unemployment Compensation and other agencies. Patricios earned his B.B.A, M.S.T. and J.D. from the University of Miami.

PABLO S. QUESADA

PIERRE A. SALIBA

SANCHEZ-MEDINA, GONZALEZ, QUESADA, LAGE, CRESPO, GOMEZ, MACHADO & PREIRA LLP 201 ALHAMBRA CIRCLE, SUITE 1205 CORAL GABLES, FL 33134 305-377-1000 PQUESADA@SMGQLAW.COM WWW.SMGQLAW.COM

FOODMAN CPAS & ADVISORS 1201 BRICKELL AVE., SUITE 610 MIAMI, FL 33131 305-365-1111 PIERRE@.FOODMANPA.COM WWW.FOODMANPA.COM

CORPORATE AND BUSINESS, SECURITIES

Pablo S. Quesada is a founding partner of SMGQ who focuses his practice in the areas of corporate, securities, real estate and tax law, including both domestic and international commercial transactions. Quesada also provides his expertise in the corporate arena to assist in the handling of complex commercial litigation matters involving corporate, stockholder or board governance issues. Quesada has achieved an AV® Preeminent™ Rating by Martindale Hubbell, and has received numerous recognitions by his peers including recognition as one of South Florida’s “Top Lawyers,” in the South Florida Legal Guide. Prior to forming SMGQ, Quesada served as regional counsel for VISA’s Latin America and Caribbean Region, and was an attorney with one of the largest U.S.-based international law firms.

60

LEON N. PATRICIOS

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

TAXATION, LITIGATION SUPPORT

Pierre A. Saliba provides international and domestic tax, forensic accounting, litigation support and advisory services to clients in a broad range of industries including healthcare (Medicare and Medicaid fraud and regulatory compliance), manufacturing and not-for-profit organizations. He assists clients with domestic and international corporate and personal taxation services, due diligence and evidence retrieval. He also works with clients on voluntary disclosure matters. As firm manager, Saliba also leads Foodman’s focus on client service. He brings prior experience as a cost accountant, controller and production manager in the garment industry, both in the U.S. and internationally. Fluent in French, Creole and Spanish, he serves as president of the Haitian American Chamber of Commerce. Saliba is also an active member of other Miami civic and charitable organizations, devoting both time and resources to helping those in need.


PROFESSIONAL PROFILES

ROLAND SANCHEZ-MEDINA, JR. CORPORATE AND BUSINESS, SECURITIES

SANCHEZ-MEDINA, GONZALEZ, QUESADA, LAGE, CRESPO, GOMEZ, MACHADO & PREIRA LLP 201 ALHAMBRA CIRCLE, SUITE 1205 CORAL GABLES, FL 33134 305-377-1000 ROLAND@SMGQLAW.COM WWW.SMGQLAW.COM

Roland Sanchez-Medina, Jr. is a founding partner of SMGQ who concentrates his practice in the areas of corporate law, mergers and acquisitions, securities law, divestitures, joint ventures, finance, board governance, real estate transactions, including real estate financing, tax planning and structure, and international tax planning for inbound transactions. SanchezMedina has achieved an AV rating from Martindale Hubbell, which is the highest rating possible regarding legal ability and professional ethics, and has been recognized in various publications by his peers as a top lawyer, including the South Florida Legal Guide, Florida Trend’s Legal Elite and Super Lawyers. He is a frequent speaker and panel member at programs and seminars on corporate, tax and real estate matters.

GLENN L. WIDOM BUSINESS LITIGATION

GLENN L. WIDOM, P.A. 1501 VENERA AVENUE, SUITE 201 CORAL GABLES, FL 33146 305-663-8770 GWIDOM@GWIDOMLAW.COM WWW.GWIDOMLAW.COM

Glenn L. Widom has practiced law for more than 19 years, focusing on the litigation of business disputes involving real estate, contracts, corporate control, commercial fraud, insurance coverage and collections. Widom is rated an AV® Preeminent™ by MartindaleHubble, has been recognized by his peers for six consecutive years in Florida Trend’s “Legal Elite” and “Super Lawyer,” and he is rated “Superb” by Avvo.com. Widom has represented receivers for failed businesses, conducted investigations and brought claims for related fraudulent conduct. He has defended numerous individuals and corporations in criminal investigations, tried cases in both federal and state courts, prosecuted appeals in Florida’s state and federal appellate courts, and mediated and arbitrated numerous commercial disputes to a successful conclusion. Widom is admitted to practice throughout Florida’s state and federal courts, its appellate courts and before the United States Supreme Court. Widom is involved with numerous charitable organizations. In 2005, Widom co-founded the Crohn’s & Colitis Foundation’s most successful independent event, which has raised more than $3.5 million to date. Widom also sits on the boards of CCFA and Temple Beth Am in Pinecrest.

DAVID WINKER

JOSEPH I. ZUMPANO

COMMERCIAL LITIGATION, HEALTHCARE LITIGATION

HEALTHCARE, INTERNATIONAL

ZUMPANO, PATRICIOS & WINKER, P.A. 312 MINORCA AVE. CORAL GABLES, FL 33134 305-444-5565 DWINKER@ZPWLAW.COM WWW.ZPWLAW.COM

ZUMPANO, PATRICIOS & WINKER, P.A. 312 MINORCA AVE. CORAL GABLES, FL 33134 305-444-5565 JZUMPANO@ZPWLAW.COM WWW.ZPWLAW.COM

David Winker is board certified as a specialist in health law by The Florida Bar and focuses his practice on domestic and international health care transactions and regulatory compliance issues. Winker has counseled providers in connection with overpayment reviews, program suspensions and federal and state criminal, civil and administrative investigations, and assisted providers with contracting, corporate structuring, real estate and estate planning issues. In addition, Winker has provided counseling on licensure matters and regulatory and legislative initiatives affecting Medicare and Medicaid providers and suppliers (including coverage and reimbursement issues). Winker’s peers have elected him to the list of the top lawyers in South Florida as published in the South Florida Legal Guide (2003-2012), to the Legal Elite as published by Florida Trend Magazine (2006 – 2010) and to Super Lawyer’s magazine. He has received Martindale Hubbell’s highest rating-AV. Winker earned a degree in political science at Florida State University and a J.D. from the University of Florida.

As president and managing shareholder, Joseph I. Zumpano has overseen the growth of the firm as it has expanded to 60 members with locations in 15 countries. He focuses his practice on complex healthcare law and international law matters. Zumpano’s accomplishments, widely covered by the media, include his pioneering the business theory of “New Globalism” and the historic case Weininger v. Castro, in which ZP&W obtained a $86.5 million judgment against the Castro brothers and the Army of Cuba. Zumpano assembled the legal team in the effort that resulted in the collection of $24 million on the judgment. More recently, Zumpano led his team to pierce a Bahamian Trust in the case Breitenstine v. Breitenstine et. al. After a seven-year battle to recover the funds therein, the court ordered the turnover of approximately $4 million in assets. Zumpano earned a BA from Harvard University and a dual degree in law and public health from Georgetown University and Johns Hopkins University.

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

61


SOUTH FLORIDA LEGAL GUIDE WITH THE SPONSORSHIP OF SABADELL UNITED BANK HOSTED ITS ANNUAL COCKTAIL RECEPTION CELEBRATING THE PUBLICATION’S 13TH YEAR.

BRIAN WEST AND DAVID WINKER

JACOB SAFDEYE AND WALTER REYNOSO

ROY WEINFELD, DAVID WELLS AND MITCHELL BIERMAN

ROBERT FIORE AND DWIGHT HILL 62

JOHN KELLER, EDWARD BLOOMBERG AND HENRY BOLZ

EDITH OSMAN, STEVEN DAVIS AND TIFFANI LEE

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

DAVID DEEHL AND SUSAN CARLSON

CAROLINE BERGER, THOMAS JULIN AND MARK SELL


LEONARD BLOOM, DONALD SLESNICK AND ROBERT ZINN

TERRENCE RUSSELL, DON SILVER AND SAMUEL LEWIS

JOHN SCHOENDORF AND LAWRENCE GOODMAN

MICHAEL KRIDEL, SUSAN KAPLAN, SANDRA GREENBLATT AND JACOB SAFDEYE

THOMAS MESSANA, MARIA YIP, RENA KELLEY AND MINDY MORA

DAVID MANDEL, STEVEN DAVIS, DENNIS KAINEN AND NICK KALLERGIS

RONALD RAVIKOFF, LESLIE LOTT AND HECTOR LOMBANA SAMUEL LEWIS AND STEVEN BERWICK

CHRISTOPHER DAVID AND GLEN WALDMAN

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2013

63


COM I N G THIS OCTOBER FINANCIAL EDITION 2013

LEGAL ACCOUNTING AND FINANCIAL PROFESSIONALS: WORKING TOGETHER TO BETTER SERVE THEIR CLIENTS TOP SOUTH FLORIDA FINANCIAL PROFESSIONALS GUEST COLUMNISTS

CONTACT US FOR MORE INFORMATION: 786-879-7638 OR INFO@SFLEGALGUIDE.COM


A

PROFESSIONAL

ASSOCIATION

Civil Litigation

ANDREW C. HALL Domestic Relations Intellectual Property Litigation Securities Litigation Wrongful Death

ADAM J. LAMB ADAM S. HALL

Complex Commercial Litigation Personal Injury

MATTHEW P. LETO RAYMIE E. WALSH

Professional Malpractice

COLLEEN L. SMERYAGE SAMUEL C. COZZO

Real Estate Litigation

BRANDON R. LEVITT Appeals

OFFICES AT GRAND BAY PLAZA PENTHOUSE ONE ÓÈÈxÊ-œÕÌ…Ê >ÞŜÀiÊ ÀˆÛiÊUʈ>“ˆ]ʏœÀˆ`>ÊÎΣÎÎ ­Îäx®ÊÎÇ{‡xäÎäÊ/œ‡ÀiiÊnää‡ÎÇȇxäÎä >ÝÊ­Îäx®ÊÎÇ{‡xäÎÎÊUÊÜÜÜ°……>ÜvˆÀ“°Vœ“ /…iʅˆÀˆ˜}ʜvÊ>ʏ>ÜÞiÀʈÃÊ>˜Êˆ“«œÀÌ>˜ÌÊ`iVˆÃˆœ˜Ê̅>ÌÊŜՏ`ʘœÌÊLiÊL>Ãi`Ê܏iÞÊÕ«œ˜Ê>`ÛiÀ̈Ãi“i˜Ìð ivœÀiÊޜÕÊ`iVˆ`i]Ê>ÎÊÕÃÊ̜ÊÃi˜`ÊޜÕÊvÀiiʈ˜vœÀ“>̈œ˜Ê>LœÕÌʜÕÀʵÕ>ˆvˆV>̈œ˜ÃÊ>˜`ÊiÝ«iÀˆi˜Vi°


Midyear 2013 edition