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Finding the Right Niche For small law firms, focusing on a relatively narrow field of law can be a path to success. Here are six South Florida firms that have taken this route in serving regional, national and international clients.

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ENTERTAINMENT LAW

Two decades ago, consumers

could hear live music at concerts, listen on the radio, watch TV, or purchase records, tapes or CDs at a retail music store or mail-order service. Since then the music industry has been turned upside down, and continues to evolve rapidly. Now, the most popular options include downloads from digital stores like iTunes or Amazon, online music and video streaming services, satellite radio and online CD stores. As a result, the revenue stream for performers has fragmented, and artists need attorneys who know how to negotiate for their income and fight for their rights. Miami attorney David Bercuson has centered his legal practice in this challenging entertainment environment. “You have to understand the legal issues in this new age, educate clients and be an effective advocate. Every day is filled with different issues,” says Bercuson, whose office is near Dadeland in south Miami-Dade. As an entertainment lawyer, Bercuson is regularly invited to concerts and parties, and his office is filled with gold records and memorabilia from clients including Flo-Rida, Gloria Estefan, Julio Iglesias and KC and the Sunshine Band. That’s because stars in the music, TV and film industries appreciate his legal skills and experience. “I wouldn’t do anything without discussing it with David, says Farruko, a rapidly rising star in the Spanish language music industry whose first two gold records are already on Bercuson’s wall of fame. “I would find a way to give him a new lung if he ever needed one and preserve him like Walt Disney [in a cryogenic chamber] so he is always available.” A leader in the field Today, Bercuson is one of the most highly recognized attorneys practicing entertainment law in Florida. His diverse client list includes U.S. and international music labels, artists, as well as South Florida television personalities like Cristina 12

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Saralegui, Jim Berry, Eliott Rodriguez, Ambrosio Hernandez and Adamari Lopez. Known as a tenacious advocate for his clients, Bercuson is also experienced in domestic and foreign music licensing and obtaining recording or publishing deals for artists. In 1998, he was instrumental in bringing MIDEM, the world’s most

David Bercuson

Fights for His Client’s Rights important music conference and market, to Miami for three consecutive years. “I’m fortunate in that my clients typically come to me by referral,” he says. “Sometimes a manager, publisher or record label has taken advantage of them. Other times, they simply want to have the best possible contracts in place for the next stage of their careers. I help them achieve those goals.” Born in Chicago, Bercuson moved to South Florida at age 11. He earned a bachelor’s degree at Tulane University and his law degree at the University of Florida. He recently celebrated his 44th wedding anniversary with his wife Marla, who is director of business operations at the University of Miami’s Bascom Palmer Eye Institute. They have two daughters and six grandchildren. “My early career was spent in commercial litigation,” says Bercuson. “I wanted to grow my practice, so I called The Florida Bar in the late 1980s to sign up for their referral service. Commercial litigation had

the longest list of attorneys, so I put my name down for entertainment law. It was the shortest list and I had just represented a musician negotiating a contract for a performance on a cruise ship. Business grew exponentially from there.” Bercuson’s timing couldn’t have been better. At this same time, CBS had just moved its Latin American music operation from Mexico to Coral Gables on the same floor as his law office. Soon, Bercuson was representing Disco CBS (which became Sony Music Entertainment US Latin LLC) with litigation matters and negotiating contracts for artists and producers. He also gained experience in licensing arrangements with music publishers, broadcasters and other organizations around the world. But Bercuson didn’t want to build his practice around one major client that might change direction at any time. “I had lunch with one of my friends from high school who suggested I could help many other artists right here in South Florida,” he says. “I told him he was right, and made myself available for all entertainment related clients.” Soon, Bercuson was representing Spanish-language artists and TV talent, followed by English-language performers, TV anchors and sportscasters. Several years later, Disco CBS was sold, but by then Bercuson was already well established in his own practice.

A variety of engagements While Bercuson usually represents individual artists, he also helps composers, independent labels, producers and publishers, staying active in all aspects of the entertainment industry. “I am not an agent or manager for my clients; I do their legal transactional work,” he says. A typical day for Bercuson might include negotiating a new recording, publishing or sponsorship deal for an artist, negotiating a contract for a TV news anchor, reviewing an endorsement contract for a top recording


artist, or representing the mother of a young singer being courted by a U.S. record label. He has also handled some types of arbitration and litigation matters, such as a programming dispute between two TV companies one from the United States and the other from Argentina. “The music industry is changing every day,” Bercuson says. “So, you have to keep pace with the market. In addition, the laws haven’t kept up with the times.” Bercuson does a lot of work with legacy acts like KC and the Sunshine Band, as well as new stars. “Everyone was singing along with KC at his recent sold-out performance

at the Hard Rock Cafe in Hollywood,” he says. “Those hit songs continue to bring in licensing revenue from TV shows, movies and advertisements all over the world. But the songs are also subject to piracy, and artists’ rights must be protected.” To help his clients collect royalties in other countries, Bercuson is an expert in “neighboring rights;” a source of income derived from public performances on the radio. Under the 1960 Treaty of Rome, artists and labels split the revenue derived from radio airplay – a concept called neighboring rights. “Because the U.S. didn’t sign that treaty, collection of these monies

can be arduous,” he says. Bercuson has taught as an adjunct at the University of Miami School of Law for more than 25 years. He is also a frequent lecturer and speaker at various Florida and American Bar Association meetings and conferences as well as at music events and on college campuses including Harvard University Law School and many others. Reflecting on his field, Bercuson says patience and flexibility are essential attributes in entertainment law. “To be successful, you have to be an effective legal strategist and advocate for your clients,” he adds. “You also have to be prepared for anything, because you never know what’s next.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2015

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EDUCATION LAW

Suzanne Bogdan is an educator

– just like her clients. When private schools face difficult issues, like student bullying, inappropriate teacher conduct or conflicts of interest among board members, she is ready to provide timely advice. “Most of my employment and labor law practice revolves around independent schools,” says Bogdan, who is the managing partner of the Fort Lauderdale office of Fisher & Phillips, LLP. She is also chair of the firm’s 30-attorney Education Practice Group, which represents about 200 independent schools across the country serving students in grades K-12. Bogdan’s practice includes preventive counseling, training, audits, policy reviews, drafting of contracts, defense of claims in the administrative setting, and litigation in all courts. She handles claims for age, race, sex, disability, religious, and national origin discrimination arising under the various civil rights laws, as well as claims involving family leave issues, wage hour matters, and breach of contract. “Suzanne is an exceptional resource for us,” says Barbara Hodges, executive director of the Florida Council of Independent Schools in Tampa. “Whenever she gets involved, she learns everything there is to know about the issue. She is a great problem solver. She herself is a great educator, who has done professional development seminars and webinars for our members on important issues for our members.”

don’t yet realize the extent of bullying, which can extend beyond the classroom or playground area into cyberspace,” Bogdan says. “Holding informational sessions is important for students as well as teachers and parents, because you want everyone to feel that it’s safe to communicate with adults when a problem develops.”

Suzanne Bogdan

and then train staffers about the dos and don’ts of proper conduct. Bogdan also trains board members, principals and heads of schools in avoiding conflicts of interest when awarding contracts, setting executive pay levels and other financial matters. “Because many schools are non-profits, they need to comply with Internal Revenue Service (IRS) guidelines to maintain that status,” she says. More recently, Bogdan has helped schools grapple with transgender issues involving both students and staff members. “People are much more open today about sexual orientation, and schools need to understand how to respond and manage their requests for accommodation,” she says. For instance, a recurring question is what restroom is most appropriate for a female student who is transitioning to become a male, or vice versa. There are also questions about sharing locker rooms or determining roommates when traveling on field trips. “We try to have the school representative sit down with the student and parents and talk things through,” Bogdan says. “A student may have told friends about the gender transition, but not the entire school community. In that case, we recommend that the school follow the student’s lead and work out a cooperative plan that respects the student’s privacy, while protecting the rights of other students and the school itself.” For independent schools that rely on families to pay tuition, the issue of parental misconduct is an ongoing challenge. For example, some parents insist on picking a certain teacher or demand that a coach put their child on a sports team. “Only about 2 percent of parents cause problems for schools, but those issues take a great deal of time and attention to resolve,” Bogdan says. Two years ago, Bogdan gave a presentation on the “Millennial parent” to more than

teaches school leaders about timely legal issues

Today’s hot topics Many of the most difficult challenges for private schools involve student, teacher or adult conduct, including the problem of bullying. “Some teachers and administrators 14

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Bogdan says teachers who see bullying in the hallway or on the athletic field, should share their information with others to determine the extent of the problem. “They should also watch out for students who might be targets, and step in, when necessary, to prevent an incident.” Another continuing problem is the issue of appropriate student-adult boundaries. Bogdan and her team counsel schools on how to handle cases where teachers or other employees cross those lines, asking for dates, engaging in sexual relationships or becoming physically or emotionally abusive. “There are people who work in schools who don’t understand that those actions are unethical, illegal and wrong,” she says. “There are also some adults who try to gain access to children, and operate under the radar.” Bogdan says schools must conduct a thorough screening and interviewing process before making a hiring decision,


100 attendees at a National Association of Independent Schools conference. “Schools don’t know how to deal effectively with aggressive and intimidating parents,” she says. “However, there are steps they can take, such as outlining expectations for parent cooperation in the student enrollment contract, and reminding them of that agreement if they fail to meet that standard.” Bogdan herself is a parent. She and her husband Tony, an attorney, have a son in college and a daughter in high school. “I’m not one of those difficult parents, because our children are perfect,” she says with a

smile. To relax, Bogdan enjoys gardening, walking on the beach, scuba diving and playing tennis. “I try to walk 10,000 steps a day, which is a great way to stay fit,” she adds. Two decades of experience Bogdan grew up in Michigan, and came to Florida on family vacations in the early 1980s. Deciding to stay, she worked at a manikin company in Hialeah, and then became a legal secretary and paralegal before earning her law degree from the University of Miami. Her first legal job was in Memphis, but she soon returned

to Florida, joining Fisher & Phillips in 1994 as a labor and employment law practitioner. A year later, she was assigned a case that involved a private school’s termination of a teacher. “I started learning about private schools and have never stopped,” she says. “I was fascinated right from the start about the different issues they face.” For instance, private schools typically hire new teachers in the spring for the upcoming fall semester. But some teachers don’t show up in August, creating an immediate staffing problem. “Private schools have different pay cycles and benefits compared with other types of employers, so their contracts, policies and procedures are also different,” Bogdan says. After resolving that first case, Bogdan started building relationships with private schools across the state, beginning with St. Edward’s School in Vero Beach, which remains a client today. “I found that many private schools did not understand what laws applied to them or didn’t know how to interpret complex regulations,” Bogdan says. She began counseling individual schools on issues like compliance with federal discrimination and wage and hour laws, as well as implementation of the Americans with Disabilities (ADA) requirements. Florida’s complex set of guidelines for student athletes pose other challenges for private school. “Our clients really appreciate our efforts to help them understand their options,” says Bogdan. “I also try to teach them about the underlying issues, so if a similar problem occurs they already have the answer.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2015

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ADOPTION AND SURROGACY LAW

Michelle Hausmann and Amy Hickman

Danae was an unmarried mother

of three when she became pregnant again. Not wanting to have an abortion, she called attorney Michelle Hausmann, co-founder of Hausmann & Hickman, P.A., in Boynton Beach. “She told me of a young couple who had tried for eight years to get pregnant,” Danae said. “I think I knew right away that the child I was carrying was meant to be theirs. It has been nine months since Adam was born, and we still keep in touch.” Since 1997, Hausmann and co-founder Amy Hickman have been helping individuals and couples wrestle with life-changing decisions related to unplanned pregnancies, infertility, surrogacy and adoptions. Both Hausmann and Hickman are board-certified adoption lawyers who focus on the rapidly evolving field of reproductive law. They are also wives and mothers themselves with five children between them. 16

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“Through the years, we have represented hundreds of clients seeking to grow their families through adoption and surrogacy,” says Hausmann. “We strive to create a secure, permanent placement, and feel very privileged to help make our clients’ dreams come true.” Hickman notes that today children and families can be created in many ways, including private adoptions and surrogate parenting. “Prospective parents need to understand their legal rights, and become informed consumers,” she says. “And the legal issues need to be addressed right at the start of the process.” A natural partnership Hausmann and Hickman bring complementary perspectives to their roles at the firm. Both facilitate adoptions and surrogacy parenting agreements, while

Hickman also handles litigation matters, such as contested adoptions. A graduate of the University of Florida and Nova Southeastern University, Hausmann launched her career in family law in the early 1990s, beginning as an associate for another adoption-oriented law practice. Hickman, a University of Florida graduate, began her legal career handling civil litigation and medical malpractice cases. “I decided to go back to my roots and work with families,” she says, “I became an attorney with the Juvenile Advocacy Project of the Legal Aid Society of Palm Beach County where I represented children in state and federal courts.” The two attorneys say it was a natural step for them to launch their own firm together 18 years ago. “We have a similar philosophy about the importance of strong families and healthy children,” says Hickman. “We also


have children around the same ages, so we know what it’s like to balance our families and professional responsibilities. ” Since then Hausmann and Hickman have handled all types of domestic child adoptions, adult adoptions, stepparent and second parent adoptions, gestational surrogacy agreements, preplanned adoption arrangements, pre-conception parenting agreements and donor-recipient contracts. The firm’s “people-focused” team includes Mary Jean Fried, adoption coordinator, and four legal assistants. “All our employees have been with us for a long time,” Hickman says. “They help us take very good care of everyone.” Both attorneys have played an active role in legal associations. Hickman was a leader in getting the Family Law Section of The Florida Bar to support updating and revising the state’s adoption laws. She was also a powerful advocate for The Florida Bar’s approval of board certification in adoption law in 2011. “Florida is the first and only state in the country to offer this certification,” Hausmann says, adding there are now about 25 board-certified adoption attorneys in the state. “We are now working to expand that certification to include reproductive law, as well.” In 2013, Hickman received the Palm Beach County Legal Aid Society Pro Bono Child Advocate of the Year Award. She is a founding board member of the Florida Adoption Council, a fellow of the American Academy of Adoption Attorneys and a member of the board of directors of the Children’s Home Society of Florida, South Coastal Division. Hausmann is a fellow of the American Academy of Adoption Attorneys (///A), a founding fellow of the American Academy of Assisted Reproductive Technology Attorneys (//ARTA), a founding member of

the Florida Adoption Council, an honorary board member of the Florida Sudden Infant Death Syndrome (SIDS) Alliance, and an associate member of the American Society of Reproductive Medicine. A high-stress, but rewarding practice Adoption and reproductive law is a highly rewarding, but high stress field of law, says Hausmann. “Our phones ring 24/7 and we have to be there to handle those immediate issues.” Adoptive parents – married, unmarried, same-sex or single – are the firm’s typical

transparent, and a birth mother like Danae can stay in contact with the adoptive family. “About 98 percent of our birth mothers do meet the adoptive parents,” Hickman says. “The placements are direct and happen when the baby is released from the hospital, so there isn’t a need for temporary foster care. The process is overseen by the courts.” For couples struggling with infertility issues or same-sex couples who want to start a family, engaging a surrogate to bear a child can be a life-changing decision. “Florida law is quite favorable regarding gestational surrogacy,” says Hausmann, who has represented intended parents, recipient parents, gestational carriers, and donors. However, surrogacy also involves a number of liability issues. “What if the surrogate develops medical problems? Who is responsible for the immediate care of the woman or any long-term health issues that can be related to the pregnancy?” Hausmann says. Having an attorney draw up the documentation is very important in terms of limiting the legal risks, she adds. “Surrogates are really generous people who want to do a really good act for a family,” adds Hickman. “We prepare donor-recipient agreements, regarding donated eggs, sperm or embryos so we can protect everyone’s legal rights before an in-vitro fertilization is created.” The issue of ownership of genetic materials recently made the headlines when actress Sofia Vergara and her ex-fiancé Nick Loeb engaged in a legal battle over the couple’s frozen embryos. Reflecting on their firm’s practice, Hausmann and Hickman agree that the late nights and weekend conversations with clients – as well as the legal challenges of adoption and surrogacy law are well worth while. As Hausmann says, “We are building families and that is very satisfying to everyone at our firm.”

Hausmann & Hickman, P.A. helps couples address knotty family issues clients. “We do the legal work, but we are not an adoption agency, says Hausmann. “Our goal is to protect the rights of the child and both traditional and nontraditional families.” A typical placement might begin with a phone call from a woman who is three or four months into her pregnancy and wants to explore her options for adoption. “We talk with her about what criteria she might want in a family for the child,” says Hickman. “In many cases, the birth father is involved in the placement process as well. It’s all about making a plan for the best future for the child.” Today, the adoption process is open and

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FIRST AMENDMENT LAW

Tom Julin is a passionate believer

in the First Amendment, which protects freedom of speech, freedom of the press, freedom to assemble peaceably, freedom of religious expression, and freedom to petition the government for redress of grievances. “First Amendment law has evolved over time,” says Julin, a partner in the Miami office of Hunton & Williams. “But those freedoms are just as important today as they were when our nation’s founding fathers wrote the Bill of Rights.” Throughout his career, Julin has represented journalists, newspapers, television stations and other clients in the media industry, helping to protect the freedom of the press. He has also been a powerful advocate for open government and the free flow of information, arguing against restrictive practices that inhibit the public’s right to know. “I wanted to be a media lawyer right from the start,” says Julin, a commercial litigator who appears regularly in state and federal trial and appellate courts, and has been counsel in more than 240 reported decisions. “I enjoyed my exposure to journalism as a college student, and still believe that First Amendment causes are some of the most important issues facing our country.” A student journalist Born in Chicago, Julin moved with his family to Ann Arbor, Michigan and then to Gainesville in 1971 his father Joseph was named dean of the University of Florida (UF) School of Law. After high school, Julin enrolled at UF and became editor of The Independent Florida Alligator, a studentrun paper under independent ownership. It didn’t take long for Julin’s belief in freedom of the press to clash with the “closed door” policies of the university’s administration. “I felt that the University of Florida, as a public institution, should make its decisions 18

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in accordance with the state’s Sunshine Law,” he says. “So, when our reporters went to UF meetings, we would stay even if we were asked to leave.” The issue came to a head in 1978 when a reporter and photographer from the Alligator traveled across the state to cover an academic deans’ meeting in Marineland. “They were talking about measures for how UF would deal with the nation’s economic crisis, and I felt people had a right to know what they were doing,” says Julin. However, Julin and the two students were

Tom Julin

PASSIONATELY DEFENDS THE FREEDOM OF THE PRESS reprimanded by the UF administration for standing up for the freedom of the press. “Given such a hostile situation, Independent Alligator editor Tom Julin deserves credit for standing behind the position taken by his photographer and reporter,” wrote Robert Still, editor of Gainesville’s Evening Independent at the time. In a similar battle, Julin also argued that the university’s search for new deans should be open to the public – a position again opposed by the administration. Several years after Julin had earned his law degree and entered private practice, the case went to the Florida Supreme Court, which ruled in 1983 that dean searches were to be open to the public. Since earning his law degree in 1981 and entering private practice, Julin has continued to represent the Alligator on a

pro bono basis on various matters, including a recent proposal to remove the newspaper’s distribution boxes from the UF campus. He’s also provided legal guidance and support to online journalistic endeavors, such as the Broward Bulldog (now the Florida Bulldog), founded by former Miami Herald reporter Dan Christensen. “Tom Julin is an attorney by trade, but a journalist by heart,” says Christensen. “When I was laid off in 2009, Tom was instrumental in helping me establish the Bulldog. He has since played a key part in helping us dig out important news the public needs to know — news that officials at all levels of government have sought to keep hidden.” Currently, Julin is leading the Bulldog’s legal efforts to get the FBI to open up its 9/11 files. “This has expanded the public’s knowledge about what happened and led the FB I to produce more than 80,000 classified pages that a judge is now reviewing for possible release,” says Christensen. “Tom has done these things without once asking to be paid.” Defending libel cases Julin began his legal career at Steel Hector & Davis in Miami, working with veteran First Amendment attorneys Sandy D’Alemberte and Don Middlebrooks. “Sandy had just won the first ‘cameras in the courtroom’ ruling in the country, so there were lots of motions to exclude cameras in high-profile criminal cases,” Julin recalls. “There were a lot more media lawyers in South Florida back then.” As a young associate, Julin also defended media clients like the Palm Beach Post and Newsweek in libel cases. One high-profile suit was filed by a Palm Beach masseuse who provided house-tohouse services and another came from a psychic who objected to a news story that she conducted séances with the dead in her bedroom.


Julin also represented TV journalist Geraldo Rivera, who broadcast a story about corruption in the jai alai industry in the first episode of ABC’s “20/20” program. Rivera had suggested that the owner of the Palm Beach jai alai front had burned it down. The case ended in a summary judgment for the defendants. During the mid 1980s, Julin, D’Alemberte and Middlebrooks defended Post Newsweek stations in a $50 million libel claim filed by Southern Air Transport (SAT) against Channel 10. The Miami TV station broadcast a story from a woman, shown in silhouette to protect her security, who said she saw the crew of an SAT L-100 unloading rifles in Colombia and receiving bags of cocaine as payment. In defending the station, Julin sought to prove that SAT was owned by the CIA at the time of the incident, since the government is constitutionally prohibited from suing for libel. Although the results of his investigation didn’t make it into the courtroom, the jury ruled in his client’s favor after a six-week trial. More recently, Julin has defended a national news reporter subpoenaed to testify in a high-profile Texas criminal case, and won a case for the Animal Rights Foundation of Florida upholding its First Amendment right to protest on public streets against abuse of animals. When not busy with cases, Julin enjoys spending time with his wife Martiza and daughter Maren and their two grandchildren. He also finds time to read four daily papers every morning. Keeping digital data flowing As part of his practice, Julin provides legal advice concerning privacy, information access, data breaches and other information issues in today’s digital world. For instance, he represented IMS Health, a national company that collects data from pharmacies on the drugs that doctors prescribe. “A doctor in New Hampshire felt that collecting this aggregate data was an invasion of his privacy, and his wife, who was elected to the state legislature,

introduced a bill that would prohibit pharmacies from selling prescription data to these companies,” Julin says. Julin recognized the case had First Amendment implications, since IMS was contacting sources for information, and reporting those findings to its subscribers. After the bill passed in New Hampshire, Hunton & Williams attorneys filed lawsuits against the attorney general, followed by similar suits against Vermont and Maine,

which had passed similar laws. In 2011, the Vermont case (Sorrell v. IMS Health Inc.) went to the U.S. Supreme Court, which ruled 6-3 in IMS’s favor. “In the ruling, Justice Anthony Kennedy emphasized the importance of dissemination of information, calling it the source of all ideas,” Julin says. “That was an important ruling that speaks to the need to maintain our First Amendment freedoms in the 21st century.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2015

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McCabe Rabin

Both McCabe and Rabin are board certified in business litigation, and the firm’s practice includes securities arbitration and other types of business litigation. Both are active in the legal profession and the community. Rabin is a past president of the Palm Beach County Bar Association and former chair of the U.S. District Court for the Southern District of Florida Bench & Bar Conference held in West Palm Beach. McCabe is immediate past president of the Federal Bar Association’s, Palm Beach County chapter, and a board member of Leadership West Palm Beach.

helps clients who report fraud against governments

Ryon McCabe and Adam Rabin help the good guys

bring wrongdoers to justice. “Every year, our federal, state and local governments are defrauded out of billions of dollars by dishonest physicians, hospitals, imaging centers, contractors, business people and other cheaters,” says McCabe, shareholder and co-founder of McCabe Rabin, P.A. in West Palm Beach. “To combat fraud, the government encourages whistleblowers to report this wrongdoing.” Individuals and companies who cheat the government are subject to penalties of up to three times the amount of their fraudulent billings, adds Rabin, shareholder and co-founder of the litigation firm. “A whistleblower who reports the fraud can receive a reward of 15 to 30 percent of the funds recovered by the government,” says Rabin. “But you have to be careful to follow the government’s procedure and requirements in order to receive that award.” McCabe Rabin is one of the few firms in Florida representing whistleblowers, and the firm’s attorneys have handled qui tam cases “in the name of the government” throughout the state and country. McCabe is a former assistant United States attorney. “I love this area of the law, because I still feel like a prosecutor,” McCabe says. “Investigating the fraud and doing something good for the community is very satisfying to all of us at the firm.” 20

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Handling cases under the False Claims Act McCabe and Rabin remember the first False Claims Act case they handled approximately six years ago. “We were engaged in an LLC breakup between doctors in a specialty practice,” says McCabe. “During discovery in the state court case, we discovered that there might have been violations of Medicare regulations The attorneys then prepared a qui tam case under the federal False Claims Act, which prohibits submitting false claims, making false statements in connection with those claims, knowingly retaining or keeping any overpayments of government money, or conspiring to do any of those actions. The result was a $3.1 million settlement for the U.S. government. “The False Claims Act was adopted into law during the Civil War when contractors sold shoddy goods to the Union army,” says McCabe. “It has proven to be one of the most successful laws ever passed, since the government recovers on average $20 for every $1 spent in prosecuting False Claims Act cases.” Since that first case, McCabe and Rabin have handled a continuing stream of

whistleblower cases involving fraud against Medicare, Medicaid, and other government agencies. As McCabe says, “South Florida is a hotbed for Medicare fraud with an active U.S. attorney’s office reviewing these cases.” Other types of fraud include misrepresenting a contractor’s status as a small business, woman-owned business or minority-owned business in obtaining government “set aside contracts.” “A wrongdoer who gets the government’s business through false ownership can be assessed substantial penalties for the fraud,” says Rabin. Under the False Claims Act, a whistleblower who has evidence of wrongdoing (called a “relator”) presents that evidence to federal prosecutors. The whistleblower also files a lawsuit that remains sealed while the U.S. Department of Justice investigates the case– a process that can take several years. “It is always best for a whistleblower to call a lawyer first,” says McCabe. “The False Claims Act sets forth certain procedures that must be followed to report the fraud and receive a reward. There are many potholes to avoid.” Rabin says it’s essential for a whistleblower to prepare thorough, well-researched (legal and factual) documentation of the wrongdoing before presenting the evidence to federal prosecutors. “The more work you do in advance, the better the chances the government will intervene in your claim” he says. While much of the firm’s practice involves federal false claims, similar laws are in place to encourage whistleblowers to report tax fraud to the Internal Revenue Service (IRS), securities fraud to the U.S. Securities and Exchange Commission, and false claims to state and local governments. “There is a misperception that whistleblowers are only after the reward money,” says McCabe. “In fact, most whistleblowers are honest and concerned employees who know their company is doing something wrong and refuse to go along with the scheme. Other whistleblower actions are launched by competitors, for example,

TRACEY BENSON PHOTOGRAPHY

WHISTLEBLOWER LAW


Ryon McCabe and Adam Rabin

honest physicians who see other doctors paying illegal kickbacks for referrals.” Protecting the whistleblower Whatever their motives, whistleblowers can be demoted, fired or subjected to harassment on the job. “Even though the case is sealed, eventually the name of the whistleblower will come out,” says Rabin. “Fortunately, the False Claims Act protects the whistleblower from retaliation with significant remedies from the employer.”

McCabe and Rabin handle retaliatory claims for employees who have been subjected to some type of punishment for their actions. “Any whistleblower facing some sort of retaliation should keep a personal diary or other records documenting the employer’s actions,” Rabin says. “Being able to show a pattern of retaliation is very helpful when filing a claim.” Rabin also advises labor and employment attorneys who represent departing or terminated employees to ask about potential

fraud. “Include a few questions like ‘Has your employer cheated the government?’ or ‘Do you know about any fraud being committed at your company’?” he says. “Otherwise, the employee may sign a release that complicates a future whistleblower claim.” Looking back on the past decade, McCabe says the level of fraudulent claims has remained fairly steady. “Wherever the government spends money, you will find fraud,” says McCabe. “It’s the same old adage: Follow the money.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2015

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AUTO DEALERSHIP LAW

Alex Kurkin helps

Kurkin Brandes

automobile dealers drive their businesses forward in one of the nation’s most tightly regulated industries. “We assist clients in their dealings with state and federal government agencies, as well as automobile manufacturers and the changing demands of consumers,” says Kurkin, who is partner and co-founder of Kurkin Brandes LLP, which is based in Aventura with an office in Tallahassee. Led by Kurkin and Marc Brandes, co-founder and partner, the nineattorney firm represents auto dealers in Florida and across the United States, with a growing number of international clients as well. In keeping with its focus on auto dealerships, the firm’s practice areas include contract, franchise and real estate law “In our field of law, there is something different to do every day,” Brandes says. “We may be on a telephone conference with the Federal Trade Commission or defending a client on a violation of the Fair Labor Standards Act in the morning, and then in the afternoon, we might start looking for sites for a new dealership or assisting a client with floor planning (short-term loans to finance inventory). As the U.S. economy has improved, we have seen that car dealerships are increasingly becoming targets for plaintiff ’s lawyers as well.” Since founding the firm in 2007, Kurkin and Brandes have prepared thousands of contracts for consumer purchases and financing, as well agreements for buying or selling dealerships and establishing or terminating franchise agreements. “We have probably prepared one or more documents for every franchise dealership in Florida,” says Kurkin. “We also counsel clients on how to avoid the pitfalls that can result in litigation, and when litigation is unavoidable, we offer extremely effective strategies to defend and minimize the litigation.” With their ability to advise auto dealers

member of the Miami Beach Health Foundation, a youth football coach, and an active pro-bono contributor to the Dade Bar Association’s “Put Something Back” program. In contrast, Brandes, who earned his bachelor’s degree from The George Washington University in 1986 and law degree from Ohio Northern University in 1990, has been passionate about cars all his life. “I remember going with my family to the General Motors building in New York City to see the new models at the annual auto show,” he says. Brandes was introduced to the intricacies of automobile dealership law while working on a high-profile export litigation case for State Attorney General Bob Butterworth with co-plaintiff, Braman Motors. “I had recently graduated from law school, and I spent six months just focusing on that case,” he says. A year or so after the case was resolved, Brandes was hired by Norman Braman, who owns one of the most successful private automobile dealership groups in the country, and spent seven years there as corporate counsel. “While I was working at the Braman Organization, Alex and I had co-counseled a case together. Thereafter, Alex and I began to work at a private firm together and ultimately decided to open our own firm.” Today, Brandes is a member of the National Association of Dealer Counsel, has been a pro-bono contributor to the Dade Bar Association’s “Put Something Back” program and has coached all four of his sons’ hockey teams over the past ten years. He has four sons and enjoys music, playing guitar, hockey and working out.

HELPS CLIENTS AVOID LEGAL ‘POTHOLES’

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SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2015

on every aspect of their operations – and 24/7 accessibility in event of a crisis – Kurkin Brandes LLP have won the loyalty of the Florida Automobile Dealers Association and more than 100 dealerships nationwide. “Alex Kurkin and his team are undeniably the preeminent automotive law firm in the automotive industry,” says Robert Cuillo, president of The Wichita Luxury Collection in Wichita, Kansas. “From franchise law to document review to regulatory issues, there is no other firm that has their expertise in our tightly regulated industry.” Developing a niche practice Kurkin and Brandes have taken different routes to building their auto dealership practice. A native of Miami Beach, Kurkin has always been comfortable with numbers, and earned a bachelor’s degree in accounting from the University of Florida (UF) before deciding on law as a career. After obtaining his law degree at UF in 1991, Kurkin joined Haber Lewis, which became Pathman Lewis, handling commercial and real estate litigation. “My practice grew naturally into a focus on strategic issues and problemsolving discussions with clients, giving me experience in both the transactional and litigation sides of the law,” he says. “Now I spend my days on the phone trying to troubleshoot issues for our clients.” When not working, Kurkin and his wife Robyn enjoy spending time with their two children, boating, fishing, biking and exercising. Kurkin is also a founding board

Facing challenging issues Automobile dealers are central to the health and prosperity of one of the nation’s largest manufacturing industries. But they have an up-and-down franchising relationship with U.S. and foreign carmakers. “Manufacturers may try to standardize


their dealerships with the goal of presenting a consistent brand to the consumer,” Kurkin says. “That can pose additional expenses or other challenges for dealers in different parts of the country.” For example, a dealer in a major metropolitan area may not be able to buy extra land for additional inventory or a local municipality might not approve a new architectural design. Dealers and manufacturers may not see eye-to-eye on their franchise territories, either. “When a manufacturer authorizes a new store for a local market, the existing dealers may protest, and we may be called for advice,” Kurkin says. On the financial side, Kurkin Brandes assists dealers in their commercial real estate searches for new facilities, and in negotiating purchase or lease agreements. They also negotiate agreements between dealers and banks to provide indirect lending for consumer purchases. A major part of the firm’s practice

Marc Brandes

is helping dealers address the growing volume of state and federal regulations, including rules set by the Florida Department of Motor Vehicles (DMV), Federal Trade Commission (FTC) and the relatively new Consumer Financial Protection Bureau (CFPB). “Because we focus on auto dealerships, we know how to get to the heart of a regulatory issue quickly,” Kurkin says. “Our clients don’t want matters to linger. They want to resolve issues so they can get back to selling cars.” In the past few years, Kurkin Brandes have expanded their practice by representing South American investors with interests in the U.S. “They are buying commercial properties, second homes and luxury cars,” Kurkin says. “We serve as a liaison with their U.S. accountants and help coordinate their transactions.” Brandes says consumers have a number of misconceptions about auto dealers. “People don’t realize that the gross margins

are really small,” he says. “It’s only about 8 to 10 percent at the manufacturer’s suggested retail price (MSRP), but no one buys at that price.” Today’s consumers are also far more knowledgeable about vehicles than in the past due to the availability of online information. “They often study a particular make and model until they feel they know everything about it,” Kurkin says. “Then they come into the dealership to see the car, ‘kick the tires’ and go for a test drive before making the purchase.” Reflecting on the role of dealerships in the nation’s economy, Kurkin says, “Historically, auto dealers were one of the last types of mom-and-pop businesses doing a large volume of sales,” he says. “Now investors like Warren Buffet have entered the industry, and there is much more institutional ownership. Perhaps most importantly, there is huge focus on customer satisfaction at every level – and that’s a good thing for the dealership business.”

Alex Kurkin

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2015

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TOP LAWYERS CLASS

2015

JACK HILL

JACK HILL

As a plaintiff ’s trial lawyer, I am often entrusted with handling the most significant event in a client’s life. In the case of a death or catastrophic injury, the event giving rise to the litigation is one of the most, if not the most, difficult times in a client’s life. Oftentimes, a client’s financial future and survival are at stake. To be

entrusted with that degree of responsibility is humbling. The most rewarding aspect of my practice occurs when a successful outcome is achieved, either by settlement or verdict, and a client is able to begin trying to put his life back together with the financial resources to do so. I am fortunate to have a fairly diverse plaintiff ’s injury practice. Given the uniqueness of every case, it is hard to single out the most interesting one. However, one that stands out in my mind involved the wrongful death of a foreign national who was originally from Honduras. In addition to leaving behind a young son, the decedent also had a common law wife still living in Honduras. Although Florida no longer recognizes common law marriages, it does respect them from jurisdictions that do. As a result, litigation was brought in Honduras that successfully resulted in a postmortem judicial recognition of the clients’ common law marriage under Honduran law. The wrongful death case resolved shortly thereafter.

JAMES G. SAMMATARO Commercial Litigation Stroock & Stroock & Lavan LLP Miami AMY B. SIEGEL Workers’ Compensation Kelley Kronenberg, P.A. West Palm Beach GAVIN N.L. WHITE Civil Litigation Martinez White & Viniegra Coral Gables IRENE ORIA

ANTHONY RECIO

My original plan in attending law school was to go into business management. I was inspired to become a lawyer during my second summer of law school when I had the opportunity to work for Gilberto Pastoriza at Weiss 38

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2015

Serota Helfman. Serving as my mentor for many years, he taught me about the practice of law, and how to engage in it ethically and considerately.  Outside of the practice, Gil continued to share his wisdom about life and human interaction, and has been one of my closest confidantes as our relationship has matured to one of colleagues, rather than mentor-mentee. My practice is unique in that it allows for working on a great diversity of issues in ways that shape the urban environment in a tangible way.  Whether it’s helping new businesses open, expanding the workplace of  existing businesses, facilitating responsible development of housing and employment opportunities in places where it’s needed, or assisting in the development of major facilities like arenas, convention centers, and museums, each matter brings its own objectives and challenges.  The results leave a lasting impact on neighborhoods, which increases the stakes and the importance of getting it as right as possible.

Three things that inspired me to become a lawyer are passion about the law (e.g., about working within our system of justice which happens to be the best one in the world), economic reality (i.e., the prospect of making a very good living), and historical significance (i.e., knowing that lawyers – including U.S. presidents and other world leaders as well as famous jurists, journalists, authors, etc. – have been some of the most influential people in history). As a complex commercial litigator, I get paid to read, write, talk, argue and solve problems – all things that I love to do – in relation to interesting, and sometimes esoteric, legal issues. Additionally, my client base is diverse, and my cases and my clients are sophisticated; in fact, my clients are often lawyers themselves. Finally, every one of my cases is different, so I am never bored.


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Midyear 2015 edition  

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