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YOUR GUIDE T O L AW, A CCOUN T ING & F IN A N CE
Bluestein and Wayne, P.A. : Resolving Complex Marital and Family Law Matters
Also: • Florida’s Cannabis Law: Lawsuits Generated by Amendment 2 • Do I Need to Be Rich to Have a Will? • Noncompetes Are Important But Time Spent Drafting Them Is More Important • Financial Planning should not be “UGH” • From Dollars to Data: Consumer Finance Goes Digital • Mobile Payments: What's in It for You? www.sflegalguide.com
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‘WIN-WIN’ VS. ‘WIN-LOSE’ SOLUTIONS When representing a client in court, trial attorneys are trained to go for the win. When a serious amount of money or an individual’s liberty is at stake, a litigator is focused on achieving a victory for his or her client at the expense of the other side. But there are plenty of other situations in law and in life where the optimal outcome is a win-win solution. In a divorce case, for example, both sides should try to find an outcome that’s best for the children. The same principle can also apply when negotiating a business transaction. In many cases, the success of a deal depends on whether both parties benefit in some way from the agreement. If a contract, for instance, favors one side too heavily, the other party may be reluctant to comply with the terms or challenge them in court. There are many ways that an aggressive, win-at-all costs strategy can backfire in life as well as in law. It’s certainly detrimental
to marital, parenting and other personal relationships. After all, who wants to be around someone who insists on having his way, puts other people down, or refuses to acknowledge a mistake. Unfortunately, the win-lose approach now dominates our nation’s political thinking. All too often, Republicans and Democrats look at pressing social, financial, judicial and even military decisions from the framework of “us versus them.” Back in 2010, the Democratic majority in Congress passed the Affordable Healthcare Act, which incorporated principles the Republican Party had espoused in the 1990s. But the “win-lose” nature of that Congressional victory sparked years of contention, marked by court challenges and attempts to repeal or dismantle the “Obamacare” law. Since Democrats liked the law, Republicans were determined
to overturn it, regardless of the impact on individuals, families and healthcare providers. Now, the Republican-controlled Congress has approved major changes to the nation’s tax code without input from their Democratic counterparts. Again, we have a situation where one party has rushed legislation through Congress to gain a "win" at the expense of the other party without the back-and-forth discussions that are so important when crafting new laws. Looking ahead to 2018, I hope that South Florida's local, state and federal officials can change that "us against them" partisan mindset, and strive for win-win solutions that can bring lasting, positive change to our community.
RICHARD WESTLUND
Richard Westlund Editor in Chief
PUBLISHER JACOB SAFDEYE jacob@sflegalguide.com EDITOR IN CHIEF RICHARD WESTLUND editor@sflegalguide.com GUEST CONTRIBUTORS EDD: AR3IOLA JACOBELI J. BEJAR STANLEY I. FOODMAN BRENDAN I. HERBERT CASEY B. HOWARD
BRIAN L. LERNER HUNG V. NGUYEN COLIN M. ROOPNARINE JOHN VISKOCIL
ON THE COVER From left, Harold Bluestein, Barry Wayne and Hugo Acebo SOUTH FLORIDA LEGAL GUIDE - BM Volume 2, Number 1, 2018 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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[ TAX COMPLIANCE ]
Financial Planning Should Not Be ‘UGH’ BY STANLEY I. FOODMAN
Most people would rather not deal with their finances. Putting off or planning to deal with finances at a later date seems to be preferred by most people. Procrastinating costs money and unfortunately financial planning takes place primarily when an unexpected event takes place or an emergency surfaces. Although financial planning ought to be a continuous process, the fourth quarter is the time of the year that many individuals assess their financial
situation (which includes budgeting and cash flow planning, as well as income tax, retirement, investment, estate, insurance planning and risk management assessment). Further, financial record-keeping, planning for education costs, charitable deduction planning, planning for divorce and elder planning are activities that ought to be revised as a normal part of the financial planning process. CPAs are a natural starting point for financial planning as they perform their
regulatory and compliance work via the preparation of an individual’s federal income tax return. The information in a tax return and balance sheet provide a roadmap to a Taxpayer’s personal financial situation and should be reviewed in tandem. In order to properly analyze an individual’s tax return, CPAs can review the different sections of a tax return as a means to initiate a financial planning “mindset” for the client. Some key considerations are: • What is the filing
STANLEY I. FOODMAN status (single, married, divorced)? • What are the sources of income (wages, self-employment, partnerships)? • What are the sources of interest income? (bonds, CDs, foreign bank accounts)? • Are there capital gains or losses? • What are the itemized deductions?
• What are your financial plans for the next 5 years? • Is managing cash flow your main concern? Many CPAs focus on reporting, compliance and taxes. They are starting points for financial planning because they can help understand financial opportunities and identify areas of improvement. CPAs will assist with: • Preparation of taxes and financial statements • Understanding the breakdown of expenses • Explanation of tax laws and their effect • Recommending different Business structures • Explaining business growth and succession strategies in relation to taxes • Representation if audited
CPAs can provide assistance in a holistic manner by helping with identifying financial goals, evaluating existing resources, and implementing the financial strategies that will lead clients towards their goals. Don’t be a victim of your own making. Financial planning is a normal and necessary process. Consult your tax specialist as the first step in getting organized towards reaching your financial goals and peace of mind. Foodman CPAs and Advisors, 1201 Brickell Avenue, Suite 610, Miami, FL 33131, (305) 365-1111, www.foodmanpa.com, info@foodmanpa.com.
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BLUESTEIN AND WAYNE, P.A. : RESOLVING COMPLEX MARITAL AND FAMILY LAW MATTERS Shared values, mutual respect, complementary skills and a focus on client service have guided the professionals at Bluestein and Wayne, P.A. for more than 25 years. As a result, the boutique Coral Gables law firm has a well-earned reputation for handling complex divorces and other marital and family law matters for corporate executives, business owners, attorneys, doctors, professional athletes, investors, and their spouses. “We have a very clear philosophy based on the golden rule,” said Harold Bluestein, who co-founded the Coral Gables firm in 1989 and is board-certified in marital and family law firm. “We believe in treating people the way we would like to be treated. That’s one reason our clients and other attorneys refer major cases to us, and why we have such long tenures in our firm.” Co-founder Barry Wayne, who is also board certified in marital and family law, says the partners’ academic backgrounds in accounting and finance are important factors in resolving tangled divorces among high-net-worth individuals. "We understand how to read complex financial statements, balance sheets and tax returns," he said. "We also know when to engage forensic accountants to dig into the finances on a deeper level." The firm’s third principal, Hugo Acebo, spent more than a decade prosecuting criminal matters, including domestic violence and healthcare fraud
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cases before joining Bluestein and Wayne in 2003. "My experience with fraudulent financial issues and criminal matters contributes to the well-rounded perspective we bring to each marital dissolution case.“ While the firm has represented high-profile CEOs, civic leaders and sports and entertainment celebrities – and their spouses – Bluestein and Wayne’s partners respect their client’s privacy. “We treat these sensitive marital and family matters with discretion,” said Bluestein. “Our clients value their privacy and we respect their wishes.”
THREE EXPERIENCED PARTNERS Looking back on a legal career spanning more than four decades, Bluestein says, "I always wanted to be a lawyer." He grew up in South Florida, and earned a bachelor's degree with a concentration in accounting and a juris doctor with honors from the University of Miami. He was a member of the executive board of the University of Miami Law Review, and was inducted into Iron Arrow, the university’s highest honor society. After joining the Bar in 1975, Bluestein handled divorce, torts and other types of litigation cases for a small trial firm. After five years, he left to open his own firm, and began focusing his practice on family law matters. He later joined Broad and Cassel's Miami office as a litigation partner, and stayed five years. "I
decided that I didn't want to be in a big firm environment, so I opened this firm in 1989 with Barry, who I had hired at Broad and Cassel," he said. Wayne followed a similar path into law, earning a bachelor's degree in economics and a concentration in accounting from Rutgers University, and his juris doctor from University of Florida, where he was a member of the Justice Campbell Thornal National Moot Court Board and served on the Honor Court. "I knew I wanted to practice litigation, and learning accounting – the language of business – would be very helpful to me and my clients," Wayne said. "I started working with Harold on matrimonial matters after I passed the bar in 1986, and three years later I joined him at our firm." Both Bluestein and Wayne have served on The Florida Bar's Marital and Family Law Certification Committee and are members of the American Association for Justice, as well as other professional organizations. Acebo grew up in Miami and earned his law degree from Florida State University. He had interned with the Miami-Dade State Attorney’s Office, and joined the office full time after law school. After six years, he became a Specially Designated Assistant Statewide Prosecutor in the Office of the Attorney General's Medicaid Fraud Control Unit and an Assistant Statewide Prosecutor at the
FROM LEFT, HAROLD BLUESTEIN, BARRY WAYNE AND HUGO ACEBO Office of Statewide Prosecution. In those roles, he led investigations involving health care fraud, money laundering, organized criminal fraud and other financial crimes. "After 10 years of government work, I decided to take the plunge and join Harold and Barry in private practice," he said. "It's worked out very well, as we make a great team." Acebo is also a member of the Eleventh Judicial Circuit Committee on Professionalism and involved in business and legal organizations, including the Miami-Dade Gay and Lesbian Chamber of Commerce and the Cuban American Bar Association. The firm's two other attorneys are Donna Tucker, who has been with the firm for more than 17 years, and Harold's daughter, Lauren Bluestein, who joined in 2012. "Both Donna and Lauren are valued members of our legal team," said Bluestein. "We also have a great staff who have been with us for many years contributing to the stability of our practice."
SHARING KNOWLEDGE While the partners at
Bluestein & Wayne typically handle their own cases, they also share their insights and experiences. “We know that every individual faces a unique set of issues, so it makes sense to have a ‘point person’ for each case,” Wayne said. “At the same time, we collaborate as a team, bringing our different perspectives to bear on the situation. There's a good reason we don't practice alone." Bluestein notes that the firm keeps a low case count, rather than trying to build a high-volume practice. That allows the partners to drill deeply into the business, investment and financial issues that will affect a fair and equitable marital settlement. "The majority of our cases settle at mediation or before trial," Bluestein added. "Our clients tend to be high-income earners and high-net-worth parties who understand the benefits of resolving a case rather than going to trial." In addition to dissolution proceedings, the firm’s attorneys handle premarital and post-nuptial agreements, cohabitation agreements, and other family law matters including paternity claims.
"Along with our legal advice, we understand that clients often need emotional support during stressful times and do our best to encourage clients to receive therapeutic support from qualified professionals in the community” Wayne said. “We know that divorce can take its toll on the children, too, and we take their needs into consideration at every step of the process. In addition, Acebo’s practice includes matters particular to same-sex relationships and the LGBT community at large. "Same-sex couples now fall under the ambit of marital law," Acebo said. "Now, we can address their relationship on an equal legal footing with other married couples." Acebo also provides legal advice to would-be parents seeking to form families through the use of assisted reproductive technology. His services include the drafting of genetic donation and surrogacy contracts. Summing up the firm’s approach, Bluestein said, “Collectively, we have more than 90 years of legal experience. That allows us to gather information, discuss the options, and find the best possible solutions for our clients.”
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FLORIDA’S CANNABIS LAW - Lawsuits Generated by Amendment 2 BY COLIN M. ROOPNARINE
For this article, the focus is on the major lawsuits that have been filed challenging various aspects of the legislation that implemented Amendment 2, the “Medical Marijuana Amendment.” Part of the statute implementing Amendment 2 states, “As soon as practicable, but no later than October 3, 2017, the department shall license one applicant that is a recognized class member of Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), and In Re: Black Farmers Litig., 856 F. Supp. 2d 1 (D.D.C. 2011) and is a member of the Black Farmers and Agriculturalists Association – Florida Chapter. l (Emphasis added). On September 22, 2017, a complaint was filed in the Second Judicial Circuit in and for Leon County, in the matter of Columbus Smith v. Florida Department of Health, Case No. 2017-CA-1972. Columbus Smith is a black farmer who is a recognized class member of the aforementioned cases but who is not a member of the Black Farmers and Agriculturalists
Association – Florida Chapter (BFAA).2 This is significant because per the Florida Statutes, the Department of Health (Department) is mandated to license one applicant who meets both of these criteria. Mr. Smith alleges that he and other African-American farmers are impermissibly excluded from participating in attempting to obtain a medical marijuana treatment center (“MMTC”) license under this particular language. Mr. Smith seeks to have the section: 1) deemed an impermissible special law as it grants a privilege to a private corporation – the BFAA; 2) deemed unconstitutional because it creates an impermissible classification of applicants/ licensees, is an improperly enacted special law and is an unlawful exercise of the state’s police powers (by serving a private versus a public interest); and 3) that the department be enjoined from issuing a license under this particular section. On December 28, Leon County Circuit Judge Charles Dodson granted a temporary injunction in the case.
Similar to the Smith case, in Tropiflora, LLC v. Florida Department of Health, Office of Compassionate Use, Case No. 2017-CA-2249, Tropiflora sued the department under the premise that a portion of the statute is an impermissible law, creates an impermissible classification, is an unlawful exercise of the state’s police power, and ultimately requests that the department be enjoined from issuing licenses under this particular section. This particular section states, “For up to two of the licenses issued…, the department shall give preference to applicants that demonstrate in their applications that they own one or more facilities that are, or were, used for the canning, concentrating, or otherwise processing of citrus fruit or citrus molasses and will use or convey the facility or facilities for the processing of marijuana.” The department has denied all allegations and the matter has not been scheduled for hearing. The filing of these two lawsuits appears to have created a chilling effect on the depart-
ment as it has refused to move the licensing process forward for fear that if portions of the statute are found unconstitutional, then the entire law may be struck down, and any new licensees would have entered the process in vain. Admittedly the department is in a precarious situation balancing the statutory mandate and a possible ruling that could strike portions or more unlikely, the entire statute. Another suit, Bill’s Nursery, Inc. and Michael Bowen v. Florida Department of Health, et al., Case No. 2017-CA-2411, alleges that in failing to license additional MMTCs by October 3, 2017, as mandated by the Legislature, the department is in violation of Florida Law and should be made to proceed with the licensing of the additional MMTCs.³ This matter has not yet been scheduled for hearing. Finally, in People United for Medical Marijuana, Inc. v. State of Florida, Department of Health, et al., Case No. 2017-CA-1394, the department is being sued for prohibiting the use of medical marijuana in a form for smok-
Mobile Payments: What's in It for You? BY EDDY ARRIOLA
For years, mobile banking has been top of mind for any institution that is looking to keep pace with the future of finance –– and that future has arrived. Nine out of 10 Americans now own smartphones, and mobile
transactions are fast becoming the preferred way to make purchases, particularly among millennial consumers. There are still a few kinks to work out –– too many platforms with too many players –– but when
all the pieces fall into place, mobile payments are going to take off. When that happens, businesses that are not already on the bus risk being left behind. It’s easy to understand why consumer demand for mobile payment options
EDDY ARRIOLA
COLIN ROOPNARINE ing. The department has since filed a motion to dismiss the action, which is scheduled to be heard on January 25, 2018, in Leon County. Colin M. Roopnarine is a partner on Berger Singerman’s Government and Regulatory Team who focuses his practice on administrative law. Roopnarine can be reached at croopnarine@bergersingerman.com, www.bergersingerman.com
l Both cases involved lawsuits that asserted the U. S. Department of Agriculture had routinely discriminated against African-American farmers on the basis of race, and in violation of the United States Constitution. The matter was subsequently settled for approximately $1.2 billion. ² The BFAA denied membership to Mr. Smith because it is no longer accepting new members. ³ Michael Bowen is an individual who relies on medical marijuana to prevent and treat epileptic seizures.
is rising. It’s convenient; instead of carrying around a wallet full of credit cards and cash, people can leave home with nothing but their smartphones. And the transaction at the register is relatively quick and hassle-free. Many consumers, however, have legitimate concerns about security breaches via Virus-infected app clones, authentication
vulnerabilities, mobile fraud and the like. They also complain that too many mobile platforms are tedious to use, requiring repeated signups and passwords, and too few local merchants accept mobile payments. Studies show small businesses in particular have been dragging their feet. A recent survey
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From Dollars to Data: Consumer Finance Goes Digital BY BRENDAN I. HERBERT, CASEY B. HOWARD AND JOHN VISKOCIL
The consumer finance industry always lags slightly behind the technological curve. Consumer confidence, which is understandably fickle, requires banks and related institutions to only adopt technologies that are tested and found to be secure and reliable. Trust of that technology is built over years and can be lost in a second. It is for this reason that consumer banks have, until recently, continued to operate largely under the same protocols as they have for the last century. While financial institutions continue to provide more access to their services online, the technology is, to date, little more than online duplication of brick-and-mortar banking services. Customers transfer money, issue digital checks, and make credit card payments online. But at root, the transaction is little different from in-person commerce used throughout the 20th Century. As we look towards the middle of the next century though, this traditional model will necessarily and radically evolve, and it is important for consumers and banks to be prepared for what some of those changes might be.
ONLINE LENDING
CRYPTOCURRENCIES
BLOCKCHAIN OF TITLE
Online lending has become a dominant trend in the consumer finance industry over the last decade. Rather than obtaining a consumer loan or auto loan from community banks, or indirectly via the dealer or merchant, consumers are using online portals operated by financial service companies, often based in another state, to receive quick loan approval and subsequent deposits into their bank accounts. Often, these online loans are used to pay off prior-existing debt incurred via traditional sources of credit, including in large share credit cards. The ease with which these loans are acquired far outpace standard bank loans. Borrowers seeking these loans should be aware that certain online lending platforms may not be subject to the same privacy and lending obligations as a more established financial institution. That trade off may not be worth the convenience of quick money. Traditional banks, on the other hand, must create new products that match the convenience of online loans while still satisfying their obligations under consumer lender regulations.
Digital or cryptocurrencies, such as Bitcoin, have also moved out of the “techie” niche and into the more mainstream consumer market such that both banks and even their most traditional customers should pay attention. While uses of the technology have been predominately focused in the electronic payments and cross-border remittance markets, in recent years cryptocurrencies have also been viewed as a lowcost speculative investment by consumers and even as an accessible store of wealth, functioning as an equivalent to a traditional bank account or even holding of precious metals. Given the recent action the price of the major digital currencies, digital currencies will continue to experience volatility, but will not be going away anytime soon. From the consumer’s perspective, digital currencies now present a viable potential for personal wealth investment. Meanwhile, banks and wealth planners must evolve to provide their customers opportunities to pursue investment vehicles rooted in cryptocurrency.
The same underlying technology that powers cryptocurrencies, commonly referred to as “Blockchain” technology, is being developed for use in other financial transactions that potentially could see a cost reduction from the automatic and decentralized clearing and settlement of the transactions. While investment banks have already been exploiting this technology in commodity trading and “smart contracts”, the greater impact will be in the consumer realm. Blockchain can be used to digitally track the chain of title for real property and vehicles, both at the local country records level and also internally among financial institutions to track sales of secured loans and the underlying collateral documents to those transactions. Adoption of this technology will likely be uneven in the coming years, but the economics and eventual convenience of Blockchain-driven property records may soon become the norm across the country. Banks should exploit this approach as soon as they are able because a digital chain of custody, once sufficiently validated by
BRENDAN I. HERBERT Courts, could eliminate billions of dollars in unnecessary litigation related to a financial institution’s standing to enforce loan documents. Customers, as a result, need to familiarize themselves with the medium as well once it becomes the norm. These technologies will not replace lending, currency and contracts, respectively, overnight. But as new tech tends to proliferate exponentially rather than linearly, they could easily be common practice before unprepared consumers or banks are ready for them. Brendan I. Herbert, Casey B. Howard and John Viskocil are attorneys at Locke Lord, LLP.
Mobile Payments: What's in It for You? • CONTINUED FROM PAGE 5 of businesses with 10 to 99 employees found only 25% currently use mobile solutions. Of course, small business owners need to be particularly careful about spending money on new technologies. But the rapid growth in demand for mobile payment options is tipping the scales. Com-
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panies that don’t offer this option are likely to see declines in sales over time. While the most obvious benefit of accepting mobile payments is keeping clients content by offering the convenience they want when paying for services or products, there are bigger gains on the table. Rewards and incentive programs promote loyalty among custom-
ers –– and lock them in as repeat buyers. Mobile payment platforms also collect valuable data on user spending habits. As with consumers, the biggest concern among business owners is security. Transactions requiring interactions among multiple parties are vulnerable to hacking at each interface. Banks and credit card companies need to take a leader-
ship role and invest in stronger web security. But consumers should be responsible for their own security as well and must take necessary steps to protect their private data. At Apollo Bank, we’re developed a Customer Security Awareness Program that gives our clients practical advice on safeguarding confidential information and
protecting against electronic fraud. Awareness, we’ve experienced, is the first step in successful risk avoidance. Eddy Arriola serves as CEO and Chairman of Apollo Bank, a community bank that operates a network of seven branches throughout Miami’s premier business and residential communities.
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Do I Need to Be Rich to Have a Will? BY HUNG V. NGUYEN AND JACOBELI J. BEHAR
If you believe you will not benefit from having a will because you are not rich, you may be doing yourself a great disservice based on a false premise. There are many misconceptions about what wills do and who should have them. At its core, a will provides direction to a court and lets everyone know how the decedent wants to distribute their property and how their estate should be administered. Anyone can benefit from having a will and, depending on the complexity of the will, the cost of having a lawyer draft one can be very reasonable. To be clear, not having a will is akin to making a will whereby Florida’s intestacy laws (the default law that applies when a person does not have a will) apply. By choosing not to have a
will, a person is choosing to let the State of Florida decide how their assets will be distributed (depending on the asset and how it is titled). While some people believe they are not rich enough or have no assets to distribute, that may not be exactly true. Most people have automobiles, checking or saving accounts, personal property, including jewelry, family heirlooms or items with sentimental value, and many others have interests in real estate. All of these items will be distributed upon their death somehow, with or without a will. Moreover, by failing to have a will, a person is waiving the legal right to make various selections that a will affords. For instance, failing to have a will waives the decedent’s right to
choose their personal representative. The personal representative is a court appointed fiduciary who is responsible for the administration of the estate, including marshalling and managing estate assets, providing notice to heirs and creditors, and defending claims against the estate or pursuing claims against others on behalf of the estate. The difference between a good personal representative versus a bad one (for example one who steals estate assets) can be dramatic and failing to appoint such a person leaves that decision totally within the probate court’s discretion. Without naming a personal representative, family members and others may be forced to litigate who should serve in that role.
Failing to have a will also waives the decedent’s ability to provide special instructions to the personal representative or direction to the court in terms of the estate administration. These decisions could involve the payment of taxes, the handling of debts, special provisions governing unique assets (which does not necessarily need to be extremely valuable) and is limited to a person’s creativity (subject to the laws regarding what is allowable in a will, of course). A will allows a decedent to name a guardian for their minor children (although this decision is not necessarily binding on a court). Doing so provides some guidance to the courts and others in a sensitive situation and may prevent litigation at a critical time for the decedent’s family.
HUNG V. NGUYEN
JACOBELI J. BEHAR
In conclusion, there are many reasons to have a will that do not depend on being rich. This article was written to provide a brief, general overview of some issues to consider when deciding whether one needs a will. Ultimately, however, whether one needs a will is a decision that should be made after consultation with a licensed attorney who focuses on probate law. There are infamous cases where people have drafted their
own wills with disastrous consequences, including having the will declared invalid, in part or in whole. When it comes to estate planning, beware of the old English adage not to be “penny wise and pound foolish.” Hung V. Nguyen and Jacobeli J. Behar are attorneys with the Nguyen Law Firm in Coral Gables, Florida, which focuses on probate, trust and guardianship law.
Noncompetes Are Important But Time Spent Drafting Them Is More Important BY BRIAN L. LERNER
Articles about noncompete agreements all kind of start the same way. Noncompete agreements are essential given increasing competition, decreasing employee tenure and loyalty, and technological advances. These are all good reasons. But the analysis cannot stop there. These agreements only have true value (i.e., enforcement) if forethought is put into writing these agreements. Remind me, what are these agreements? People sometimes use the term “noncompete” in reference to several concepts. This term could refer to a noncompete (forbidding an individual from working at a competing company), a protection of confidential information (prohibiting the taking or use of confidential or trade secret information for any purpose other than for the employer), or a nonsolicitation
(forbidding an individual from poaching employees or customers to join the individual at his/her new company). Lawyers generally refer to these concepts collectively as “restrictive covenants.” But I thought courts won’t enforce these agreements? Many people hold this belief, but Florida has a law that specifically provides that courts must recognize and enforce these agreements. Courts will not enforce these agreements because of the failure to prove that the agreement is (1) reasonably limited in time and area, (2) in writing, and (3) supported by a legitimate business interest. And that failure stems, many times, from using generic agreements that pay little attention to understanding what the employee does, what access the employee has to confidential informa-
tion, and detailing what the company really wants to protect. Thus, to help bolster the chances of enforcing these agreements, companies need to spend the time up front to write an agreement that anticipates the problems that could arise in the future and spell out those issues in the agreement. What things should be included in these agreements? The agreement should include detailed definitions for critical terms like what is “confidential information,” who is an “employee,” who is a “customer,” who is a “competitor,” and what constitutes “solicitation.” If the employee does work for or has access to information about a company’s affiliated companies, be sure to include those companies in the scope of the definitions.
The agreement should identify how long will it will last and the geographic coverage area. It is easy to say that the shorter the time frame and the narrower the geography, the more likely the terms will be enforced. But this requires carefully analyzing the nature of the business and the duties of the employee as those factors could require longer and wider restrictions. The agreement should make clear the restrictive covenants are independent (i.e., remain in force) regardless of the obligations that the company may owe to the employee. This language could help avoid employees arguing to a court the agreement cannot be enforced because, for example, the company violated a law when terminating the employee. These are just three suggestions. There are lots of other provisions that should
BRIAN L. LERNER be included. But this demonstrates that while having restrictive covenants in place is an important business practice, companies should spend the time upfront carefully drafting these agreements. Brian Lerner is board-certified in labor and employment law representing businesses and individuals in employment-related matters. He is the chair of the Labor & Employment Group at Kim Vaughan Lerner LLP.
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South Florida Legal Guide’s Favorites Among the Region’s Legal, Accounting and Financial Firms FINANCIAL
LEGAL
IBERIABANK 1111 Brickell Ave., 30th Floor Miami, FL 33131 305-358-4334 2109 Ponce de Leon Blvd. Coral Gables, FL. 33134 305-442-9991
Allen, Dyer, Doppelt, Milbrath & Gilchrist, P.A. 1221 Brickell Ave., Suite 2400 Miami, FL 33131 305-374-8303
ACCOUNTING Cherry Bekaert LLP 2525 Ponce de Leon Blvd., Suite 1040 Coral Gables, FL 33134 305-274-4600 200 E. Broward Blvd., Suite 2000 Fort Lauderdale, FL 33301 954-556-1720 Ellrich, Neal, Smith & Stohlman, P.A. 11025 RCA Center Dr., Suite 401 Palm Beach Gardens, FL 33410 561-624-0355 150 W. Flagler Street, Penthouse II, Suite 2925 Miami, FL 33130 305-624-0355 Fiske & Company 1000 S. Pine Island Rd., Suite 440 Plantation, FL 33324 954-236-8600 Foodman CPAs & Advisors 1201 Brickell Ave., Suite 610 Miami, FL 33131 305-365-1111 Rehmann 7805 NW Beacon Square Blvd., Suite 201 Boca Raton, FL 33487 561-912-2300 Yip Associates 2 S. Biscayne Blvd., Suite 2690 Miami, FL 33131 305-569-0550
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Berger Singerman LLP 1450 Brickell Ave., Suite 1900 Miami, FL 33131 305-755-9500 350 E. Las Olas Blvd., Suite 1000 Fort Lauderdale, FL 33301 954-525-9900 Bilzin Sumberg 1450 Brickell Ave., 23rd Floor Miami, FL 33131 305-374-7580 Bluestein and Wayne, P.A. 4000 Ponce de Leon Blvd., Suite 770 Coral Gables, FL 33146 305-859-9200 Broad and Cassel 1 N. Clematis St., Suite 500 West Palm Beach, FL 33401 561-832-3300 2 S. Biscayne Blvd., 21st Floor Miami, FL 33131 305-373-9430 100 SE 3rd Ave., Suite 2700 Fort Lauderdale, FL 33394 954-764-7060 7777 Glades Rd., Suite 300 Boca Raton, FL 33434 561-483-7000 David Bercuson, P.A. 8950 SW 74th Ct., Suite 1813 Miami, FL 33156 305-670-0018 Deutsch Blumberg & Caballero, P.A. 100 N. Biscayne Blvd., Suite 2802 Miami, FL 33132 305-358-6329
Genovese Joblove & Battista, P.A. 100 SE 2nd St., 44th Floor Miami, FL 33131 305-349-2300 200 E. Broward Blvd., Suite 1110 Fort Lauderdale, FL 33301 954-453-8000 Gladstone & Weissman, P.A. 101 N. Federal Hwy., Suite 702 Boca Raton, FL 33432 561-447-2274 Haliczer Pettis and Schwamm, P.A. 100 SE 3rd Ave., 7th Floor Fort Lauderdale, FL 33394 954-523-9922 Hall, Lamb, Hall & Leto, P.A. 2665 S. Bayshore Dr., PH 1 Miami, FL 33131 305-374-5030 Leighton Law 1401 Brickell Ave., Suite 900 Miami, FL 33131 305-347-3151 Levine Kellogg Lehman Schneider + Grossman LLP 201 S. Biscayne Blvd., 22nd Floor Miami, FL 33131 305-403-8788 Link & Rockenbach, P.A. 1555 Palm Beach Lakes Blvd. Suite 301 West Palm Beach, FL 33401 561-727-3600 Markus/Moss 40 NW 3rd St., PH 1 Miami, FL 33128 305-379-6667 Needle & Ellenberg, P.A. 1401 Brickell Ave., Suite 900 Miami, FL 33131 305-290-1736
Payton & Associates, LLC 2 S. Biscayne Blvd., Suite 1600 Miami, FL 33131 305-372-3500 Podhurst Orseck, P.A. 1 SE 3rd Ave., Suite 2700 Miami, FL 33131 305-358-2800 Seitles & Litwin 40 NW 3rd St., PH 1 Miami, FL 33128 305-403-8070 SMGQ Law 201 Alhambra Circle, Suite 1205 Coral Gables, FL 33134 305-377-1000 Somera & Silva, LLP 2255 Glades Rd., Suite 232W Boca Raton, FL 33431 561-981-8881 Walter A. Reynoso, P.A. 2030 S. Douglas Rd., Suite 214 Coral Gables, FL 33134 305-441-8881 Warren R. Trazenfeld, P.A. 2665 S. Bayshore Dr., Suite 700 Miami, FL 33133 305-860-1100 Zumpano, Patricios & Winker, P.A. 312 Minorca Ave. Coral Gables, FL 33134 305-444-5565