Tuesday, June 30, 2015

Editor's Message: Credit Where Credit Is Due

By  Ed Comey

     At first, I was extremely excited that Ben Hill asked me to edit the Lawyer magazine. The excitement turned to nervousness, though, when it dawned on me that I didn’t have the slightest idea what was involved in editing a magazine. As I’ve mentioned before, I think the Lawyer is the best local Bar publication around. I certainly didn’t want to be the one to mess that up (particularly the 25th anniversary edition). It turns out that, with all due respect to my predecessors, editing this magazine is a really easy job.

     Many of you may not realize (I know I didn’t) how many talented people make the Lawyer what it is. Naturally, it starts at the top with the HCBA’s president and executive director. Ben Hill and John Kynes have been incredibly supportive, and you’d be hard pressed to find two nicer people to work with. And of course, there are the HCBA section chairs. I had no idea they were responsible for (among other things) finding authors to write articles and making sure those articles are in on time. Luckily, we have no shortage of lawyers willing to write really high-quality pieces for publication.

     But it didn’t take long to realize the real secret to the Lawyer’s success. It wasn’t until I sat down to write this message that I learned Corrie Benfield’s official title is “Director of Public Relations & Communications.” Having worked with her for a year, I’m confident that title doesn’t come close to capturing all of the things she does at the HCBA. While many of you may know her from HCBA events, I suspect few have any idea how instrumental she is to the Lawyer.

     Thanks to Corrie, my job really starts when I get a magazine proof; by that time, she has come up with very creative ideas for features, compiled article submissions, edited them, somehow arranged the magazine layout, found photos to go along with articles and features, written small features to fill in content, worked with advertisers, and done a million other things I don’t even realize. After I make an edit here or there to the proof to catch the rare mistake that gets by her (I’m convinced she leaves those in on purpose to test me), she edits it again and works with the printer to get the magazine to your in-box. Oh, and did I mention, she has created a blog where she posts your articles and then circulates them on social media.

     You only have to read a couple of pages into the Lawyer to find a reference to and (unfortunately, in my case) picture of the editor, but you have to look really hard to find any reference to Corrie. I can assure you that disparity has nothing to do with our relative contributions to the Lawyer. The Lawyer has evolved into such a fantastic publication over the past 25 years thanks to the talents of people like Corrie. I hope those of you who enjoy the magazine will take a moment to thank Corrie (and all of the others working behind the scenes) for making the Lawyer a first-rate publication.

Monday, June 29, 2015

Military & Veterans Affairs Committee: Stewards for Those Who Have Born the Battle

By Jeffrey C. Blumenauer

"To care for him who shall have born the battle and for his widow and his orphan ..."

President Abraham Lincoln spoke these hallowed words during his Second Inaugural Address on March 4, 1865, which foreshadowed the Civil War’s end and underscored the importance of stewardship for our nation’s veterans — and today this stewardship continues. 

As attorneys, we can be especially important stewards for veterans, so it is critical we know what to do or where to turn when they call our offices seeking assistance. Commonly, veterans seek legal counsel to help them obtain the various veterans benefits they have earned for their service. Even if the legal services are not ultimately rendered by us, there are a vast array of resources available, including many veterans service organizations (VSOs), which can provide veterans with assistance. The Department of Veterans Affairs, whose mission also contains the same excerpt from President Lincoln’s address, maintains a current directory of VSOs.

Some VSOs provide traditional veterans-related legal services, such as the National Veterans Legal Services Program. Numerous others provide crucial advocacy and assistance, including the Veterans of Foreign Wars of the United States and the American Legion. Being knowledgeable about these resources and making a proper referral can make a tremendous difference in the lives of veterans. 

A veteran’s benefits are generally dependent upon the characterization of service as reflected on their DD Form 214 upon discharge and other information contained in their Official Military Personnel File (OMPF). Requesting an OMPF can be an important first step toward gaining access to benefits and may be made through the submission of a Standard Form 180 (SF-180) to the applicable governmental agency listed on the form. The SF-180 can be found through the Nation Archives

The type of discharge a veteran receives is important as it is based on the nature and quality of the veteran’s military service. The highest characterization of service is an Honorable Discharge and entitles veterans to all of their earned benefits. When discharged through the administrative separation process, a veteran can also receive a General Discharge Under Honorable Conditions or an Under Other Than Honorable Conditions (UOTHC) Discharge. Service members can also be separated without a characterization in service. Uncharacterized discharges are generally the result of an entry-level separation where the service member served less than 180 days on active duty or is otherwise unable to complete initial entry training. Any discharge with less than an honorable characterization can significantly diminish a veteran’s access to benefits. 

If a veteran was discharged with less than an honorable characterization of service, or if his or her OMPF contains an error that precludes access to veteran’s benefits, the veteran can request an upgrade in discharge or a correction to military records. Requests for discharge upgrades are not automatic and generally require a showing that the veteran’s characterization of service was inequitable. Corrections to military records and requests for discharge upgrades are made by completing forms DD 149 and DD 293, respectively, and each must be submitted to the appropriate military review board agency for review. These forms can also be found online through the National Archives. 

By being knowledgeable about the abundance of resources available to veterans and taking the time to provide the right guidance, we as attorneys can provide more than just legal services — we can continue President Lincoln’s noble call to care for those who “have born the battle.” 

Judicial Pro Bono Summit Planned for October 26

The Thirteenth Judicial Circuit Pro Bono Committee will host a Judicial Pro Bono Summit to coincide with and, indeed, kick off local pro bono events during National Celebrate Pro Bono Week, which runs from October 25-31. The summit will be held at the Chester Ferguson Law Center on October 26 at noon. 

The summit's format is simple and designed to take no more than one hour. Over a boxed lunch (or bring your own brown bag) in a meeting room away from the courthouses, state and federal judges will hear several five-minute presentations from pro bono providers/coordinators on what population those organizations serve and in what subject matters. 

The judges will also hear a brief presentation on behalf of the Florida Bar Foundation on how to become a Foundation “Fellow.” And the judges will get some tips on special accommodations judges may make for pro bono attorneys. 

Once the presentations are concluded, the guest presenters will be excused, and the judges will end with an open brainstorming session on other ways judges can be involved in pro bono activities. The committee will distribute to the judges a handbook-style compilation of useful resources, including referral information for legal services providers in the area, so that these resources will be within arm's reach on the bench. The materials will also include ways a judge may participate in pro bono.

P.S. To all federal and state judges sitting in Hillsborough County:  Please, SAVE THE DATE!

Thursday, June 25, 2015

Tax Law: The Process of Conversion from a Corporation to an LLC

By Justin J. Klatsky

The LLC is the preferred form for new entity formations in Florida. Profit corporation filings have declined from 170,207 in 2004 to 102,412 in 2014. That represents about a 40 percent decline. Annual new filings for partnerships of all types show an even more dramatic decline during this same period.  The only form of entity that saw an increase in new filings over this period in Florida was the limited liability company (LLC), with filings at 94,348 in 2004 and 197,286 for 2014, marking a 109 percent increase.  

The history of the LLC shows this to be a recent trend. There are many existing corporations and other business entities in Florida that, if formed today, would choose to be an LLC. This article will summarize the process of converting from a corporation to an LLC under sections 607.1112 through 607.1114 and 605.1041 through 605.1016, Florida Statutes, with attention to the tax aspects.

The first step of any conversion is a thorough review of the corporate books and records to ensure proper compliance with all requirements and procedures ― both internal and statutory. Of particular statutory concern is the triggering of appraisal rights under section 607.1302, Florida Statutes.

After a review of the corporate records, the corporation can then move forward with the required plan of conversion under section 605.1041, Florida Statutes, and in accordance with sections 607.1112 through 607.1114, Florida Statutes, which may involve certain notices, meetings, approvals, and written actions. 

Only after the proper plan of conversion has been adopted can the corporation file either a certificate of conversion under section 607.1113, Florida Statutes, or articles of conversion under section 605.1045, Florida Statutes, with the Department of State. Both include articles of organization for the new LLC.

Once officially converted, the LLC should then adopt an operating agreement that, at the very least, governs relations among the members, relations between the members and the LLC, the rights and duties of the management, the activities and affairs of the LLC, and the conduct of those activities and affairs, including accounting and tax concerns.

The previous summary addresses the requirements of state law. Federal tax consequences cannot be ignored, either. Even on the simplest conversions, purely for state law purposes, known as an F reorganization, IRC § 368 (a)(1)(F).  the correct tax forms should be filed with the IRS (such as Forms 8832 and 2553) to protect the entity from inadvertent termination of its tax treatment, which could result in severely adverse tax consequences, and to preserve its EIN. See IRM Section If the corporation seeks to change its federal tax treatment from a C corporation or S corporation to another form (such as a partnership or disregarded entity or from an S corporation to a C corporation), then careful tax analysis is needed to consider the tax consequences of these transactions.

Thursday, June 18, 2015

HCBA President's Message: A Final Salute

By Benjamin H. Hill IV

It all started so innocently. Despite forewarnings from several predecessors, I refused to believe that anything could pass so quickly. Just yesterday, I was raising my right hand and taking the oath that our then-Chief Judge Menendez was administering. A cup of coffee later, I was watching my successor, Carter Andersen (aka “The Upgrade”), raising his right hand as our current Chief Judge Ficarrotta administered the same oath. As I paused to reflect on how quickly the past Bar year had rocketed by, I couldn’t help but smile. Never before had I served with so many talented folks ― both HCBA members and members of our incredible HCBA staff ― all of whom are so committed to carrying out our Bar’s mission. And, in the process, never before had I had so much fun serving. Then, it hit me. Isn’t that what the HCBA is all about?

Glancing back on the year, I am proud of, and grateful for, all of the good work that we managed to accomplish together. Under the code name “Operation Respect and Service,” we lifted up a variety of issues and events that not only promoted respect for the law but also served the needs of our community. In the process, it is my sincere hope that we added value to your HCBA membership.

First, we raised and advanced military and veterans issues. We did so via our new and now well-established Military and Veterans Affairs Committee (“MVAC”), a group that not only got after it all year but also positioned us well locally to better serve the legal needs of those who have given so much for our country. In doing so, we highlighted and supported our local Veterans’ Treatment Court. We devoted our first General Membership Luncheon, which aptly fell on 9/11, to appreciating our military. And we participated in a number of other events ― from area Stand-Down Days to benefit homeless vets to our Adopt a Veteran program where we delivered much needed clothes, supplies, and other gifts to “adopted” veterans in need. I salute everyone who helped fulfill this aspect of our Bar’s mission this year.

We also celebrated our judiciary and the unbelievable support it continues to provide our Bar. Perhaps this was most evident at our Bench Bar Conference where Chief Justice Jorge Labarga highlighted an impressive lineup of speakers that enabled us to set an attendance record for this annual event. We also recognized a fine group of retiring judges, capping things off with the fun and memorable Toast & Roast of Chief Judge Menendez. Speaking of records, we may have also set one for the number of investitures in which we participated this past year. Indeed, it remains a real honor for the HCBA to participate in these special occasions. As I said many times this year, the support that our local judiciary gives the HCBA makes us a better connected, more professional, and, where and when appropriate, even a more fun Bar.

We lifted up many other issues ranging from diversity and pro bono service to the importance of young lawyers and professionalism. We also tried to continue offering benefits to our members. From the traditional efforts such as our annual Judicial Pig Roast/Food Festival & 5K Pro Bono River Run to new ones such as our inaugural Health & Wellness Expo and our new HCBA website, we hope that each member felt and appreciated the variety and value of such efforts. And, speaking of benefits, let us not forget the value of this great publication, the 25th anniversary of which we also celebrated throughout the year. While I thank all of you who wrote for or otherwise contributed to the Lawyer this year, I especially salute Ed Comey and his fine work as editor.

I could not close without acknowledging the contributions of two dedicated groups who each enabled any success we had this year. First, I recognize our HCBA Board of Directors, which consistently guided us throughout this past year. As both stewards and ambassadors of our Bar, our officers and directors were active, diligent, energetic, and visible all year long. I thank our board members for their commitment and support. Second, I hold up our HCBA staff. Led by the incomparable John Kynes, our mightily talented yet ever so humble executive director, this staff was truly special. I simply cannot recall working with such an organized, devoted, responsive, collegial, and fun group. Indeed, we members are fortunate to have each of them planning, preparing, working, and serving on our behalf.

Finally, I thank our entire membership for providing me with this unique opportunity to serve as HCBA president. It has always been an honor for me just to be involved with the HCBA, so to lead this great Bar for a year has truly been a privilege. Although our work is never really complete, I salute all who served this past Bar year and gratefully say: Mission accomplished!

Wednesday, June 17, 2015

Trial & Litigation Section: Social Media Discovery - Does Nucci Open the Flood Gates?

By Charles T. Moore

Every day presents a reminder that we live in the age of Big Data. Scan the daily headlines and you will see a story of hackers pulling off the largest data heist in history or a leaked report of the NSA sifting through emails of every American. The corollary to this age of Big Data is the age of little privacy. Our courts are falling in line. The court in Nucci v. Target Corporation, 2015 WL 71726 (Fla. 4th DCA Jan. 7, 2015), delved into the subject of privacy for users of social media and concluded that our right to privacy is smaller than many of us thought.

In Nucci, the court was presented with a petition for writ of certiorari on an order compelling discovery of the plaintiff’s photographs from her Facebook account. The order compelled production of all photographs on the plaintiff’s social media sites for two years before and after the incident. The order did not limit the request even to photographs just of the plaintiff. Importantly, the court noted that the plaintiff objected only generally to the request on privacy, relevancy, burdensomeness, and overbreadth grounds and did not object to any specific photographs or state any specific concerns of privacy as to any particular photograph or class of photographs. The court upheld the trial court’s order compelling the production. It reasoned that such photographs are “powerfully relevant” to proving the quality of a plaintiff’s life before and after an injury. In what some social media users might characterize as a facile understanding of how social media sites are used, the court compared Facebook photos to a “day in the life video.” Finally, the court concluded that there is no right to privacy in Facebook photographs no matter how restrictive the user’s privacy settings on Facebook.

The case should be an eye-opening reminder to users of social media. The indelible data imprint left by social media and other forms of online data may one day be used in contexts for which the data were not intended. But the case should be limited to its facts and to the limited focus of the objections on appeal.

A case that places some important limitations on social media discovery requests is Root v. Balfour Beatty Construction LLC, 132 So. 3d 867 (Fla. 2d DCA 2014). Root involved a mother who brought a personal injury claim for her daughter who was struck by a contractor’s truck near a construction site. The defendant served a discovery request that sought all social media postings related to the mother’s relationship with her daughter and her other children, her relationship with other family members or boyfriends, and mental health stressors both before and after the accident. The trial court compelled the production, and the mother petitioned for certiorari. The Second District granted certiorari and reversed the order. It held that the request was the type of carte blanche discovery that should be limited to relevant matters. Such requests must be more specific to pass muster. 

Social media is fair game in discovery as long as the requests are focused and limited to likely relevant matters. The lawyer defending against such social media requests should ensure such requests are appropriately focused and should be prepared to educate the uninitiated jurors to the context of Facebook and other social media posts.

Monday, June 15, 2015

Legal-Aid Organizations Make Stanley Cup Wager

It's not the Ice Bucket Challenge, but you could call it a Cool Cup Competition. Two of the largest legal-aid organizations in the home cities of the Tampa Bay Lightning and Chicago Blackhawks have waged a bet on the outcome of the Stanley Cup Final. Bay Area Legal Services in Tampa Bay and LAF in Chicago both work to provide free civil legal services for people living in poverty, and they are hoping this friendly wager will raise awareness of their work in a larger arena.

LAF has promised half a dozen Giordano’s deep-dish pizzas to the staff of Bay Area Legal Services should the Blackhawks fail to bring the Cup to their city. BALS answered the challenge, offering to ship north a box of hand-rolled Ybor City Cigars if the Lightning lose the series.
The feud started as competitive banter on Facebook but has spawned into much more for the two organizations. “We thought this would be a fun way of supporting our team and our mission,” said Rose Brempong, development director for Bay Area Legal Services. “It’s not often you get an opportunity to get authentic Chicago pizza shipped to your office - we had to take them up on it!”

BALS is a nonprofit organization dedicated to providing free civil legal services to qualified and low-income residents and nonprofits throughout the Tampa Bay area. BALS believes that access to justice is fundamental to building strong, safe communities. Areas of service include domestic violence, veterans' issues, foreclosure, consumer rights, senior advocacy, family law, public benefits, housing, self-help, and tax issues. Last year, BALS helped and educated more than 19,000 individuals and families and received more than 60,000 calls to its legal aid line.

LAF, formerly the Legal Assistance Foundation of Metropolitan Chicago, is Cook County’s largest legal-aid organization. LAF helps families and individuals living in poverty resolve their non-criminal legal issues and get back on track. LAF’s more than 80 full-time attorneys and staff provide comprehensive free legal services for civil problems, including domestic violence, consumer fraud, and unfair evictions. They make equal justice a reality in metropolitan Chicago and break the cycle of poverty. For nearly 50 years, LAF has been providing professional legal services to tens of thousands of people in metropolitan Chicago. LAF relies on private donations to fulfill its mission.

Thursday, June 11, 2015

Mediation & Arbitration Section: 4 Common Blocks to Settlement

By James W. Whitney

Access to a jury of their peers is the vehicle the parties have chosen to provide a solution to what so far has been an unsolvable, life-altering situation for at least one of them. They believe in it, and they trust it. The mediation conference is their “first day in court.” Trust is diminished with each deprecating utterance to the jury system, the judiciary, opposing counsel, or other anticipated participants in the problem-solving process.

Disparagement of Our Judicial System.
A significant percentage of parties to mediation have been summoned for jury duty. Many have been chosen to serve, and some have been chosen foreperson. Each one, chosen or not, has had to arrange work schedules, child care, pet care, transportation needs, family meals, polished shoes, etc. Each remembers the effort, energy, and expense required in preparing to show up for performance of their civic duty. Contrary to popular belief, those not chosen to serve often express great disappointment that they were rejected.

Do not insult these citizens by telling them their failure to settle their present dispute leaves the outcome to a panel of six fellow citizens composed of: 
“people whose only qualification to serve is being an adult with a driver license”; or
“people not smart enough to get out of jury duty”;
and other remarks even more derogatory.
A better practice is to ask a party at the outset if they have ever been summoned or served as a juror, followed by a statement regarding how much we value the jury system.

Derogatory Remarks About Opposing Counsel.
The parties want to believe that the settlement proposed to them was reached by a highly trained professional acting on their behalf in opposition to a worthy opponent. No one advertises the fact they just beat the neighborhood weakling. Let the client know how hard it was to reach this decision. Don’t puff, be accurate, and always be the client’s champion!

Derogatory Remarks About Judges.
These should not be permitted by the mediator. Unfortunately, they are generally uttered without warning. Leaving the mediator with the unfortunate choice of either terminating the mediation for reassignment to another mediator or lecturing the person attacking the judiciary.

Derogatory Remarks About Potential Expert Witnesses.
Parties’ self-evaluation of their case cannot reasonably be expected to weigh the potential testimony of a future expert witness once they have been advised that the witness: 
“is nothing more than a hired gun,” or
“will say anything for whoever pays him/her,” or
any other remark intended to convey the impression that the jury will not give serious consideration to that expert’s testimony.

Veronica Dagher’s article “Five Ways to Get a Better Deal in Mediation,” The Wall Street Journal, March 2015, page B8, offers a great formula for reaching resolution at mediation: 
1. “Prepare emotionally.”
2. “Follow the money.”
3. “Choose the mediator carefully.”
4. “Show empathy.”
5. “Have a backup plan.”

Wednesday, June 10, 2015

Honoring Those Who Have Served the Legal Community for 50 Years

The Florida Bar Annual Convention is quickly approaching. Every year at the convention, the Bar honors its 50-year members and 50-year senior counselors for their dedication to the legal profession. This year, The Florida Bar is honoring the Class of 1965. The Hillsborough County Bar Association would like to congratulate to those honorees from the Thirteenth Judicial Circuit:

Thomas Michael Foster, Tampa
William Charles Frye, Tampa
Robert H. MacKenzie, Tampa
David A. Maney, Tampa
Albert C. O'Neill Jr., Tampa
Hon. Joseph Rogers Padgett Jr., Riverview
Albert M. Salem Jr., Tampa
Charles Fargo Sansone, Tampa
Delano S. Stewart, Tampa
Stella Ferguson Thayer, Tampa
John I. Van Voris, Tampa
Hon. Thomas G. Wilson, Tampa

Tuesday, June 9, 2015

Marital & Family Law: Recover Fees Pursuant to Administrative Order S-2013-075

By: Michelle Ralat Brinner

A great deal of confusion exists among practitioners regarding the recovery of an award of attorneys’ fees, particularly regarding compliance with local Administrative Order S-2013-075. Compliance with the Family Law Rules of Procedure and the administrative order is critical to recovering attorneys’ fees and costs for your client.

To comply with the administrative order, you must initially determine the nature and amount of the fees that you are seeking. Although it sounds simple, the requirements necessary to comply with the order vary based upon these key facts. If you are seeking an award of temporary attorneys’ fees in an amount less than $50,000, the requirements and deadlines are different from if you are seeking an award of fees in an amount greater than $50,000. Currently, the order does not specifically address the requirements to recover fees in an amount less than $50,000 after a final hearing, but it is generally good practice to comply with the requirements of the administrative order as much as possible to assist the court in making its necessary findings to award your client fees.

The requirements and deadlines set forth in the administrative order are:
Temporary Fees in an Amount Less Than $50,000


File temporary relief motion

Financial affidavit per 12.285(c)(1)

File MFD per 12.285(c)(2)-(4)

Set Temporary Relief mediation (submit cover sheet)
With temporary relief motion



Set hearing if mediation results in impasse
Should be scheduled within 14 days of request for hearing

File attorneys’ fee affidavit
7 days before hearing

Exchange exhibits and temporary relief memo
72 hours before hearing

Interim Fees Greater Than $50,000; Fees After Final Hearing Greater Than $50,000


File motion for fees

Request hearing on fee motion
With motion

Prepare uniform order setting final evidentiary hearing on attorneys fees and costs
After getting hearing time

File affidavit of attorneys’ fees
10 business days after the date of the order

Designate expert
20 days after entry of order (and no later than 5 business days before mediation)

Non-moving party’s response to fees and costs affidavit
15 days before hearing

Attend mediation
7 days before hearing

Moving party’s written response to the non-moving party’s response to fees and costs affidavit
5 days before hearing

  • Moving party must submit all invoices, time records, canceled checks, and other supporting documentation within 7 business days of any informal written request
  • Limited discovery permissible on an expedited basis
Must be completed and all motions must be heard no later than 5 days before hearing

Pre-hearing stipulations
5 days before hearing

This chart should not be substituted for a careful reading of the administrative order. The best way for your client to recover attorneys’ fees is to comply with the order and applicable Florida law.

Thursday, June 4, 2015

Intellectual Property Law: Insuring Success in an Evolving IP World

By: Nicholas G. Popp

It’s a Thursday afternoon and your phone rings. On the line is one of your oldest clients ― the owner of a successful but small local business. He just received a letter from a company out of East Texas claiming that his best-selling product infringes upon one of its intellectual property rights. Although he feels certain that his product is not infringing, he is worried that fighting the claim would prove too costly.

His concern is justified. According to a 2013 survey performed by the American Intellectual Property Law Society, the median costs of litigating a patent infringement claim through trial was approximately $700,000 where the amount in controversy was less than $1 million. Am. Intellectual Prop. Law Ass’n, Report of the Economic Survey 34 (2013). These costs jump up to $2 million for cases with $1 million to $10 million at risk. Id. Litigation costs for trademark and copyright infringement are comparatively less but still run into the hundreds of thousands of dollars. With the potential of such staggering defense costs, how can your client afford to defend his business against these allegations?

Insurance coverage for intellectual property is often overlooked, despite it frequently being among an organization’s most valuable assets. Fortunately, some protection can be found in a company’s standard Commercial General Liability (CGL) policy. However, most CGL policies exclude coverage for “infringement of copyright, patent, trademark, trade secret or other intellectual property rights,” unless the infringement occurred in an advertisement and was one of “copyright, trade dress, or slogan.” Insurance Services Office, Inc., Commercial General Liability Coverage Form CG 00 01 04 13 at 7 (2012). 

Although this exclusion narrows coverage for IP infringement, it doesn’t eliminate it completely. Courts have held that this coverage includes trademark (Hyman v. Nationwide Mut. Fire Ins. Co., 304 F.3d 1179, 1193–1194 (11th Cir. 2002)) and copyright infringement (St. Luke’s Cataract & Laser Inst., P.A. v. Zurich Am. Ins. Co., 506 F. Ap’x 970, 977–978 (11th Cir. 2013)), and even patent infringement (Elan Pharm. Research Corp. v. Employers Ins., 144 F.3d 1372, 1380 (11th Cir. 1998)), provided that there is a sufficient causal connection between the infringement and the advertising activities of the insured.

But what if the claims against your client are unrelated to advertising activities? Fortunately, you previously told your client about some relatively new insurance offerings with broader indemnities for IP claims. Many of these products (whether as a standalone IP policy or as part of a cyber liability policy), cover patent and copyright infringement unrelated to advertising activities. Some insurers even offer IP abatement policies, which help inventors and IP owners fund offensive litigation against infringers. 

Thanks to your knowledge of insurance options for IP infringement, your client can now afford to fight back against these claims without bankrupting his business.

Monday, June 1, 2015

Immigration Law: La Perla de las Antillas

By Maria del Carmen Ramos

Now that summer is here, hopefully most of us are planning our vacations. Although most summers, I return to my native Puerto Rico to visit family and spend time at the beach, I’m always reading the newspaper (digitally these days) to look for new places to travel. If you’ve been reading the news over the past several months, you may have seen quite a few articles about a new Caribbean destination for travelers: Cuba.

For over 50 years, travel to Cuba has been regulated under the Cuban Assets Control Regulations. Under those the regulations, people subject to U.S. jurisdiction must be licensed to travel to, from, or within Cuba. Licenses are generally available for only 12 categories of travel: family visits, official government business, journalistic activity, professional research and meetings, educational activities, religious activities, public performances or competitions, support for the Cuban people, humanitarian projects, activities of private foundations or research or educational institutes, transmission of information or informational materials, and certain export transactions. Finally, the regulations generally restrict the types of transactions a person can engage in while in Cuba.

Licenses are either general or specific. If a person meets the requirements for travel to Cuba under one of those 12 categories, then he or she is entitled to a general license. If a traveler does not meet the specific regulatory requirements for one of the 12 categories, he or she can apply to the Office of Foreign Assets Control (OFAC), which administers the regulations, for a specific license. General licenses, which do not require an application to OFAC, make travel to Cuba far easier.

Recently, OFAC (an arm of the Treasury Department) promulgated amended regulations implementing changes to our foreign relations with Cuba that President Obama announced in December, which were intended to make it easier for Americans to travel to and do business with Cuba. In particular, travel previously authorized by specific license will be authorized by general license. The recent amendments to the regulations also eliminate the need for air carriers and travel agents to obtain a specific license from OFAC to do business; eliminate the per diem cap on spending by Cuban travelers; and permit travelers to Cuba to use debit and credit cards.

If you’re interested in traveling to Cuba for tourism, though, don’t start packing your bags just yet. Although the current administration has eased travel restriction to Cuba, tourist travel is still not permitted. But travel to Cuba is expected to increase under the relaxed travel restrictions. Immigration practitioners would be wise to familiarize themselves with the many changes under the recently promulgated amendments. In the meantime, here’s hoping you have a relaxing summer wherever your travel may take you.