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MONDAY, AUGUST 6, 2018

YOUR GUIDE T O L AW, A CCOUN T ING & F IN A N CE

The Talent Hunters : Law Firms and Recruiters Team Up to Find Skilled Professionals

Also: • Don’t Run Afoul of U.S. Sanctions • What’s Next After the Affordable Care Act? • Immigration Policy Changes Create New Challenges • Starting Your Startup - Top 8 Key Legal Items www.sflegalguide.com


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Finding the Center A century ago, William Butler Yeats wrote a poem about World War I whose lines resonate today: “Things fall apart; the centre cannot hold; Mere anarchy is loosed upon the world, The blood-dimmed tide is loosed, and everywhere    The ceremony of innocence is drowned; The best lack all conviction, while the worst    Are full of passionate intensity.” One of the unfortunate results of today’s hyper-partisan political climate has been the erosion of the center. Moderates in both parties are being replaced by legislators and administrators holding all-or-nothing positions. Political analysts point to a number of reasons why the centrists are losing influence. One reason is the growing disparity between

the “haves and have-nots” in our country, due to structural changes in the U.S. economy. Job creation and income growth, for instance, have tended to be concentrated in coastal regions, rather than rural areas. The relentless 24/7 news cycle has also had an impact, as polarizing statements tend to grab headlines, regardless of their underlying importance. Many Americans now also pick and choose media channels that reinforce their beliefs. Also, moderate positions generally aren’t as exciting to the news media or the public. The announcement of a U.S. “trade war,” for instance, is guaranteed to make the headlines, while an update on renegotiation of an existing trade agreement would only worth a brief mention. As a former newspaper editor, I was trained to present all sides of a story and let readers make up their minds using their

common sense and critical thinking skills. Both of those basic tools are essential for understanding complex problems that don’t lend themselves to a simple solution. Take healthcare for example. In this issue of South Florida Legal Guide, attorney Gary Scott Davis looks at the unraveling of the Affordable Care Act (ACA) and the importance of coming up with a replacement program. On the topic of immigration, attorney Carmen Arce discusses the impact of policy changes on business visas. International trade, healthcare and immigration are three of the biggest issues currently facing South Florida’s business and professional community. Infrastructure, education, financial crimes and caring for the elderly are other topics that can be added to that list. We believe it is vital to foster an open discussion on these complicated matters, and

RICHARD WESTLUND

South Florida Legal Guide will continue to present a variety of viewpoints for our readers. Hopefully, we can do our small part to help our community find a sense of direction and build a consensus. While it may not make for exciting headlines, we hope our approach will lay the groundwork for effective action in the future.

Richard Westlund Editor

PUBLISHER JACOB SAFDEYE jacob@sflegalguide.com EDITOR IN CHIEF RICHARD WESTLUND editor@sflegalguide.com GUEST CONTRIBUTORS GARY SCOTT DAVIS STANLEY I. FOODMAN ROBERT C. WHITE, JR. CARMEN ARCE SOUTH FLORIDA LEGAL GUIDE - BM Volume 2, Number 8, 2018 ON THE COVER James Berger of Berger Singerman This is an independent supplement by South Florida Legal Guide Mailing address P.O. Box 630428, Miami, FL 33163. All rights reserved. All titles registered and may not be used without permission. Reproduction in whole or in part of any text, photograph or illustration without written permission of the publisher is strictly prohibited. The South Florida Legal Guide makes no guarantee regarding the accuracy of information presented, results reported, or safety of products or activities described herein. The publisher notifies readers that the hiring of a professional is an important decision that should not be based solely on advertisements. Before you decide, ask the professional to send you free written information about qualifications and experience. Contact: info@sflegalguide.com or call: (786) 879-7638 • www.sflegalguide.com

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Private Banking Commercial Banking Wealth Management

Orlando Roche Regional President | Miami-Dade County 2109 Ponce De Leon Boulevard | 305.347.4175 | orlando.roche@iberiabank.com

Don’t Run Afoul of U.S. Sanctions BY STANLEY I. FOODMAN

If you are considering doing business in a foreign country, take a careful look to be sure that you are not violating U.S. or international sanctions. Making a mistake could have serious financial repercussions for your company. While U.S. sanctions against countries like Russia, North Korea and Iran have made headlines this year, all of us should be sure that we are in compliance with the many restrictions on doing business with certain individuals, companies, banks and other nations. The Office of Foreign

Assets Control (OFAC) of the U.S. Department of the Treasury administers and enforces economic and trade sanctions to protect national security and other interests. It also publishes a list of individuals, groups, and entities, such as terrorists and narcotics traffickers called Specially Designated Nationals (SDNs). The assets of SDNs may be blocked and they may be denied access to the U.S. banking system. In its efforts to fight threats to the nation, OFAC may investigate transactions outside the U.S. For instance, one could be

opening an office in South America in partnership with a local entrepreneur who has passed one’s due diligence screening. But if a bank account is established in a financial institution on the OFAC list, its funds and assets could be subjected to OFAC sanctioning. Talking with a forensic accountant or an attorney familiar with OFAC’s global regulatory reach could help with avoiding a compromising and costly situation. In 2014, Paris-based BMP Paribas paid $8.9 billion for illegally processing financial transactions on behalf of Sudanese,

STANLEY I. FOODMAN Iranian, and Cuban entities subject to U.S. economic sanctions. Currently, OFAC is administering nearly 30 different sanctions programs in the Western Hemisphere, affecting Cuba and Venezuela. Other programs include the “Countering America’s Adversaries Through Sanctions Act” of 2017 and the

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"Blocking the Property of Certain Persons Engaging in Significant Malicious Cyber-Enabled Activities." The federal agency also issues interpretive guidance on issues related to the sanctions programs it administers in order to address complex topics. Again, a knowledgeable professional can help with keeping current with OFAC’s requirements and the pitfalls that can occur in overseas transactions. Along with OFAC fines and penalties, you and your company could also face significant tax consequences. Business owners and professionals should also understand that the Internal Revenue Service (IRS) may conduct investigations in

conjunction with OFAC, posing another potential financial liability for non-compliant transactions. So, be very careful when doing business with an individual or organization that could be considered a potential threat to the U.S. Pay close attention to the flow of money, as well, to be sure you comply with all U.S. banking and tax regulations. Advance planning can help you stay in compliance with the constantly changing U.S. regulatory landscape. Foodman CPAs and Advisors • 1201 Brickell Avenue • Suite 610 • Miami, Florida 33131 Tel (305)-365-1111 • www.foodmanpa.com • info@foodmanpa.com

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THE TALENT HUNTERS Law Firms and Recruiters Team Up to Find Skilled Professionals

SEARCHING FOR TALENT Faced with a shortage

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of professional talent here, some firms are recruiting associates and partners from other parts of the country, says recruiter Jennifer Fitzgeorge, division direction at Special Counsel’s Parker + Lynch Legal in Fort Lauderdale. That may include paying bar relocation expenses. “Many South Florida firms feel a strong connection with New York,” Fitzgeorge said. “They like the way the city’s firms train their associates, so they’re ready to advise clients.” Berger Singerman has received a growing number of resumes from attorneys who have practiced in the Northeast and now want to return home to South Florida, said Berger. “Our recruiting strategies include using outside search firms and asking our internal professionals to identify talented attorneys who might consider a lateral move,” he added. Summer internships are another traditional approach to seeing if a law school student would be a good match for the firm in the future. Debbie Montero, vice president, permanent placement legal recruiter for Robert Half Legal in Miami, says some firms have an “old-school mindset,” and focus on hiring new associates with degrees

JAMES BERGER

JENNIFER FITZGEORGE

DEBBIE MONTERO

ALBERT DOTSON

PHOTO: LAURACOPPELMAN.COM

James Berger knows that skilled legal professionals are in high demand today. “Like many law firms, we are enjoying a strong growth cycle,” said Berger, managing partner, Berger Singerman in Miami. “We have been able to find some phenomenal new talent in our real estate, corporate, tax and litigation practice areas, but it takes work to recruit them and bring them on board.” Throughout South Florida, it’s a tight job market for attorneys, accountants, other professionals and support staff. As a result, firms need to move quickly to identify promising candidates, review their qualifications and extend an offer – before another firm makes its decision. “Attracting and retaining talent has been a challenge for many South Florida industries, including law firms, given today’s competitive marketplace and multigenerational workforce,” said Albert Dotson, managing partner, Bilzin Sumberg in Miami. “This is why firms need to develop a process that focuses in on the best candidates, and strengthen their training, coaching and mentoring efforts as a part of their retention and promotion efforts.

from the nation’s top law schools. Others draw on their partners’ ties to Florida law schools in recruiting recent graduates. Corporate and real estate are two of the region’s hottest practice areas. A candidate who speaks Spanish and has several years of experience is likely to receive multiple offers, said Fitzgeorge. Speaking Portuguese is also a plus, particularly for in-house counsel positions with multinationals that have operations in Brazil. “A multinational seeking to fill an in-house counsel position might want a candidate who is familiar with Latin American culture,” added Montero. “On the other hand, some companies only want to talk with candidates who have focused on a certain sector, such as healthcare or banking.” Small and mid-size firms often use flexible scheduling to compete with the national firms. “Many attorneys have children or other family responsibilities,” Fitzgeorge said. “Being able to work from home, at least from time to time, can be a benefit that outweighs the salary.” Innovative approaches can also help attract legal talent, she added. “One firm offers a mock client social program to help new


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Financial professionals in demand

ASHLEY ORFIN

attorneys build rapport with their contacts and develop their business skills,” said Fitzgeorge. “Others have redesigned their offices, creating a shared workspace with modern decor and even a rooftop deck.” Diversity, personal health and work-life balance programs can also help law firms attract legal talent. Emphasizing pro bono service opportunities can also help attract younger professionals, said Montero. “But the most important benefit is offering challenging assignments that keep new associates engaged with the firm,” she added. “That can be a real competitive advantage for smaller firms.” Dotson agrees. “The key to effective recruiting of any potential team member, regard-

It’s not just lawyers who are hard to find in South Florida. Financial professionals are also in demand, according to Ashley Orfin, metro market manager for Robert Half in South Florida. “We surveyed 220 chief financial officers (CFOs) in metropolitan areas, and two-thirds said it was either challenging or very challenging to find skilled candidates for professional positions,” she said. For instance, the U.S. unemployment rate for compliance officers is probably around 1 percent, she added To fill those positions, employers are hiring interim workers, hoping to bring them on board permanently in the future, Orfin said. They are also recruiting candidates from wider geographic areas and loosening their “must have” qualifications, she said. “Employers should develop an action plan, ask for referrals, develop a shortlist of candidates, conduct a careful assessment and move swiftly to make an offer,” Orfin said. “They should also be sure they offer attractive compensation and strive to make their company stand out in the competitive talent market.”

less of position or experience level, is to offer a dynamic, thriving and unified company culture with an opportunity for growth,” he said. For instance, Bilzin helps its attorneys grow their practices by providing marketing resources and investing in technology. “A big attraction for young associates is how we onboard from the beginning with the Bilzin Sumberg Academy for Professional Development,” he added. “It’s an intensive training program that essentially bridges the gap between what attorneys learn in law school and what is necessary in their everyday practice.”

MOVING UP THE LADDER Some firms promote associates to partner more quickly than in the past, said

Fitzgeorge. “Having a partner title carries more weight with clients,” she said. “It also helps firms retain top attorneys, since they may be less likely to leave for a lateral position.” Berger Singerman takes a merit-based approach, said Berger. “We pay a lot of attention to providing the right support for our attorneys who want to develop their careers, including involvement in Bar activities and community organizations,” he said. At Bilzin Sumberg, new associates and junior partners work one-on-one alongside senior partners, Dotson said. “That leads to a more united firm and makes us attuned with the needs of our next generation, so we stay on track to identify strong, talented attorneys.”

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What’s Next After the Affordable Care Act? BY GARY SCOTT DAVIS

When passed in 2010, the Affordable Care Act (ACA), often called “Obamacare,” had three basic goals: increase access to health insurance, reduce costs and spending, and offer patients stability with respect to their insurance coverage. By offering a subsidy for low- and middle-income Americans to purchase private insurance plans, the ACA was successful in expanding coverage for about 14 million previously uninsured individuals, including those with pre-existing medical conditions. Although Congress failed to repeal the ACA in 2017, many of its key provisions have since been whittled away or weakened through acts of both Congress and the Executive Branch. For instance, the recent tax reform legislation repealed the requirement that individuals show proof of insurance. Also, the administration has championed the expansion of health association plans on the premise that they will afford consumers access to cheaper insurance options. Other steps are also underway. The Centers for Medicare and Medicaid Services (CMS) is withholding more than $10 billion in risk adjustment payments to health insurers participating on the exchanges pending a decision by a federal court; the Justice Department has decided not to defend the ACA against constitutional lawsuits filed by 20 states; and most recently CMS has cut funding for the Navigator program, which provides guidance for consumers when seeking coverage on the ACA exchanges.

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To understand where we are today, we need to understand how we got here. The U.S. is unique in the developed world in that healthcare is provided on a private rather than a public basis. The current structure of health benefits had its start after World War II, when employers began offering health insurance to recruit and retain workers. Over the decades, health insurance gradually became an entitlement that workers expected their employers to provide. Many companies had the resources to subsidize coverage for their employees, and the government promoted this model through the use of tax incentives. Today, as was the case before the passage of the ACA, employers find it increasingly difficult to pay the steadily rising cost of health benefits for their employees. Those that offer health insurance as a benefit often require employees to contribute through payroll deductions. The result is a continuing squeeze on the financial resources of many workers as well as employers. Are we now at a moment of “deja vu all over again”? Whether you agree or disagree with Obamacare, the ACA provided a new pathway for millions of Americans to move from uninsured to insured and protected millions of Americans with pre-existing conditions. If the actions noted above and those that are still to come end up undermining the confidence of consumers in the ACA and the willingness of health plans to offer products through the

federal exchanges, what will come next? Do current policy makers and politicians truly believe that a reversion to the pre-ACA status quo will offer a sustainable and credible model? Will millions of Americans lose access to insurance coverage? Or will the federal government be able to come up with a viable and workable replacement program? If there is an ACA “replacement” program, will it continue to offer comprehensive benefits, will persons with pre-existing conditions have access to “affordable” benefit plans and the care they need, or will they be confronted with low-premium, limited benefit plans with very high deductibles? As the current marketplace for health insurance benefits continues to evolve, both consumers shopping for individual coverage and businesses looking at group plans need to understand what they are purchasing regarding deductibles, co-pays, scope of benefits, and provider networks, among many issues. Should the ACA ultimately crumble, the collateral effects will impact not only those who first obtained insurance coverage because of ACA but those who receive health insurance from their employers. If there is a reversion back to the number of uninsured persons pre-ACA, the number of people accessing care through hospital emergency departments will likely increase. Hospitals and treating physicians may find themselves providing more services without reimbursement resulting in uncollectable bad debt. Those

GARY SCOTT DAVIS providers will inevitably look towards private insurers and paying patients to cover those losses, resulting in a spiral of higher premiums and fees, creating a financial ripple effect throughout the healthcare marketplace. With the fall midterm elections looming, it’s unlikely that Congress will be dealing with healthcare until 2019. Nevertheless, now is the time to have the discussion on how best to repair or replace the ACA. As history tells us, going backwards to the pre-ACA era will not result in a sustainable system. Despite political sound bites to the contrary, it is highly unlikely that a single-payer option or a Medicare

for all approach is viable. Instead, we need to learn from both the strengths and weaknesses of the ACA to build a long-term sustainable approach that promotes access to care, brings insurance coverage within the reach of the many, contains costs, and aligns economic incentives among payors, providers and patients, while improving the nation’s overall level of health. Attorney Gary Scott Davis a partner at McDermott Will & Emery’s Miami office, Board Certified in Health Law by the Florida Bar Board of Legal Specialization and Education Care. He focuses his practice on healthcare issues.


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Immigration Policy Changes Create New Challenges for Employers BY CARMEN ARCE

While the plight of immigrant families separated at the U.S. border has drawn national attention, other policy changes by the U.S. Citizenship and Immigration Services (USCIS) have had a significant impact on South Florida employers. Many immigration attorneys are referring to these changes as “The Invisible Wall” or “The Other Travel Ban.” For example, many multinational executives and professionals travel to foreign countries on a regular basis for business purposes. In the past, foreign workers with an H-1B or L-1A business visa could file for residency (a “green card”) and be allowed to continue traveling during the application process because both case types allow for dual intent. However, last year USCIS made a policy change, and holders of H1B and L1A

visas along with Adjustment Applicants with current Advance Paroles (also known as travel permits) must now be more cautious than ever as to whether or not they are allowed to travel and until when. If they file for an Advance Parole or a Renewal of an Advance Parole and depart the U.S. prior to the approval of such document, it will be deemed abandoned and could result in the person being stuck outside of the U.S. until the issue can be resolved, which could take months. Therefore, South Florida visa and green card holders should consult with an immigration attorney before traveling to a foreign destination to be sure they will be allowed back into the United States. Recently, USCIS issued two important policy memos

that will make it more difficult for employers to obtain H-1B visas for executives, professionals or other foreign workers. A June memorandum made it easier for USCIS officials to issue a notice to appear (NTA) before an immigration judge to visa applicants, in order to begin removal proceedings in a wider range of cases. For instance, deportation proceedings could begin against an H-1B worker even though the individual was challenging the denial. Under a July 13 guidance, which takes effect September 11, USCIS officers can deny an application without having to issue a request for evidence (RFE) or a notice of intent to deny (NOID). That empowers USCIS officers to reject an application without providing opportunity for the individual to correct a

flaw in the initial form or submit additional supporting documents. In the past, USCIS could deny these cases only when there was no possibility that any errors could be corrected. It’s also important to understand that it can take USCIS a year or longer to change an individual’s visa status. So, careful advance planning is needed for both nonimmigrant visa applicants as well as employment-based immigrant visa applicants to avoid being placed into removal proceedings while their cases are still pending. Another USCIS policy change has affected South Florida students and their families. In the past a B1/ B2 tourist who was within the U.S. (generally for a six month period), decided she wanted to study, and was accepted by a school authorized

CARMEN ARCE to issue an i-20 (certificate of eligibility for nonimmigrant student status), then she would file a Change of Status and would need to prove she had the financial means to support herself throughout her studies without the need to work in the U.S. In April and May of 2017, USCIS changed the rules about filing for this change of status and applied the change retroactively. As a result, a number of foreign students had to leave the U.S., with a resulting impact on South Florida colleges and universities. It was a situation that could have been avoided by giving the students and their academic institutions, along

with the legal community, a few months warning in order to adjust to the new rules. At a time when the U.S. is facing a nationwide shortage of skilled labor, these USCIS rule changes are making it more difficult to recruit and retain foreign workers. Many talented multinational executives and professionals are likely to consider taking positions in other countries, rather than deal with the constantly changing U.S. immigration policy requirements. Carmen Arce is a boardcertified immigration attorney at Arce Immigration Law, P.A. in Miami.

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Starting Your Startup – Top 8 Key Legal Items BY ROBERT C. WHITE, JR.

You’ve finally got your concept in place and you’re ready to proceed with your startup but not sure of what to do next. Here are the eight important legal steps to consider as you get your startup ready to go. Don’t ignore or postpone these items in the rush to get the business going, because making the right moves at the start can prevent future headaches and add potential value. These steps are not in any particular order – all are very important! 1. Choose the right business entity and corporate structure. Don’t do anything without having a business entity in place. The right business entity will vary depending on your situation, but this will usually be a limited liability company or a corporation. Get

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legal, accounting and tax advice before proceeding. 2. Equity ownership. Confirm and document all issuances of equity. Equity is the most valuable resource that you have – guard it carefully! Ensure that you have a strategy for equity issuances to founders, key employees, consultants and others. Build a fully diluted capitalization table (including options and convertible debt) and keep it updated. This will show you at a glance who owns (or could own) your startup’s equity. This table will become an increasingly important tool as more equity holders come in. 3. Get controlling agreements in place. This item is sometimes overlooked or postponed and that can lead to tension and

potential legal problems. Get the right controlling agreement in place early. This will depend on the type of business entity that you use, but it will normally be an Operating Agreement (for a limited liability company) or a Shareholders Agreement (for a corporation). These agreements control such critical items as how the startup is governed, voting rights and procedures, restrictions on transfers of equity and buyback rights. 4. IP protection. Engage a good IP attorney early to ensure that you have maximum protection for your startup’s IP. Work on internal IP protection as well, such as putting invention assignment agreements in place to ensure that any IP developed by employees

and consultants will be the property of the startup. 5. Your internal team. Document all relationships with employees, consultants and other internal team members. Ensure that their compensation, equity rights, roles and obligations are clearly documented. Don’t ever rely on understandings or oral agreements. 6. Your external team. Before doing anything, get the right lawyer and accountant in place. These are invaluable resources in all aspects of your startup. Be sure to use advisors who “get it” regarding the special needs of startups, and use an accountant who can also provide tax advice (beyond just record keeping). Also locate outside business advisors. We are lucky in South Florida to have access to a wide range of very smart men and women who can help you from a business and financial perspective. Many of them may be willing to help without asking for much in return. Build a board of directors and board of advisors, but also utilize informal advisors if they are available. Learn what worked and didn’t work through these advisors’ experiences. 7. Financing. Be realistic about your startup’s financing needs and the associated timing, and don’t be afraid to use a high number in your planning in case of unforeseen contin-

ROBERT C. WHITE, JR. gencies. Start now to line up financing – it always takes a lot longer to get a check in the door than you anticipate. Work with your lawyer, accountant and financial advisor to ensure that you clearly understand the terms of any financing transaction as financing documents can have far reaching and potentially serious negative consequences for you. 8. Have form contracts ready to go. Having contracts ready to go (which favor your startup’s position) can be a huge advantage in negotiating various business arrangements and can make the

process go more quickly. There are obviously many other significant issues that will affect your startup, but these are the ones that in my experience are the most urgent. Taking care of these items can add substantial value to your startup. Keep a close eye on these and make it happen! Attorney Robert C. White Jr. is a shareholder at Gunster’s Fort Lauderdale office, and practice leader of the Technology and Innovative Companies Practice Group. He is also a member of the firm’s Corporate Practice Group and Securities and Corporate Governance Practice Group.

SFLG - MHBM August 6, 2018  

South Florida Legal Guide August 6th 2018 Edition

SFLG - MHBM August 6, 2018  

South Florida Legal Guide August 6th 2018 Edition