2013 financial edition

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SFLG SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

FINDING CAPITAL

SOLUTIONS ADVICE FROM FINANCIAL PROFESSIONALS IMMIGRATION CHALLENGES LABOR LAW TRENDS

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Content

INSIDE THIS ISSUE 4

EDITOR’S NOTE

6

PUBLISHER’S NOTE

7

REAL ESTATE FINANCE ROUNDTABLE

13

ADVICE FROM TOP SOUTH FLORIDA FINANCIAL PROFESSIONALS

21

IMMIGRATION

25

TRENDS IN LABOR LAW

28

THE THREE-LEGGED STOOL

7

25 36

13

38 2

30

POST-SETTLEMENT FUNDING

32

VALUE-BASED BILLING MODEL

34

MANAGING CASH FLOW FOR YOUR LAW PRACTICE

36

WALL STREET AND THE FIRST AMENDMENT

38

HURDLES IN ACCESSING BANKING SERVICES

40

PARASAILING SAFETY THOUGH ECONOMIC DISINCENTIVES

42

DIVORCE AT A REASONABLE COST

44

GOVERNMENT WRONGFULLY FREEZES ASSETS

46

PROFESSIONAL PROFILES

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

Professionals who bank Professionals

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Editor’s Note

CONNECTING HUMAN AND FINANCIAL CAPITAL SUCCESS IN TODAY’S business world requires the effective application

! " # $ South Florida Legal Guide$ % &

# comments and advice will help our readers — and their clients — make '

( !

& & ) ! ! " professionals to discuss trends in commercial and residential real estate $ % $ * &

! " ' #

Richard Westlund Editor

4

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

A

PROFESSIONAL

Civil Litigation

Domestic Relations

ASSOCIATION

ANDREW C. HALL ADAM J. LAMB ADAM S. HALL MATTHEW P. LETO

Intellectual Property Litigation

COLLEEN L. SMERYAGE

Securities Litigation

BRANDON R. LEVITT

Wrongful Death

MARISOL S. BORDERO

SAMUEL C. COZZO

JOCELYN S. BROWN

Complex Commercial Litigation Personal Injury Professional Malpractice Real Estate Litigation Appeals

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Publisher’s Note

HERE WE GO AGAIN SALES OF NEW homes are rebounding, condos in South Florida are selling faster than they can come to market, and everywhere you go it seems like happy times are here again. From Brickell to Sunny Isles Beach and from Midtown and the Miami Design District to the beach, we are hearing of large new developments targeted aggressively to wealthy South Americans. These buyers, accustomed to purchasing with little or no debt, are driving the unexpectedly rapid recovery in the region’s real estate market. These projects will eventually rejuvenate the county and city coffers, as these new home owners will pay property taxes, and their long-term visits to South Florida will bring more money into our restaurants and stores. In turn, this will help drive employment upwards. But as a very well respected banker recently mentioned, we may be focusing on the short term without looking further

& at attract bright young professionals to South Florida so they say, “I’ve got to live 6

here.� That is absolutely critical for our region to become a sustainable economic powerhouse. Fortunately, there are number of business and civic organizations working to strengthen our technology and creative design industries, and to attract the interest of angel investors and venture capitalists. Our region’s traditional strengths in appeal to young people interested in careers in banking, accounting and the law. But one of the things that needs to be done is implement a more effective national immigration strategy. Currently, we are spending tons of dollars educating not only our citizens, but those of other coun + from those tuition dollars, as well as their endowments, donations and government resources. You do not have to see someone get an actual handout to understand from that support. While we do want many to go back to their countries and build industries that will eventually trade with the U.S., we need young people with an entrepreneurial spirit to stay here and create new jobs in the years to come. Jobs bring peace, they bring comfort and they bring economic development. They impact the real estate market, the restaurants, the stores in a positive way, and they are certainly the best solution in the struggle against crime. With the best weather in the country and excellent access to major cities around the world, we must work hard to make South Florida home to the best and brightest. While we continue to welcome new real estate development and foreign investments, we cannot rely solely on one industry to carry us along. After all the economic cycle will change at some point, and eventually we will be saying, “Here we go again.� Jacob Safdeye Publisher & CEO

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

SFLG

SOUTH FLORIDA LEGAL GUIDE

PUBLISHER JACOB SAFDEYE jacob@sflegalguide.com EDITOR IN CHIEF RICHARD WESTLUND CREATIVE DIRECTOR ELIZABETH CARLISLE GUEST CONTRIBUTORS STANLEY I. FOODMAN JOSEPH GENOVESI ANDREW C. HALL DWIGHT L. HILL JAMIE Z. ISANI ANDREW S. ITTLEMAN JOHN ELLIOTT LEIGHTON ROBERT J. MERLIN JACKIE PERCZEK SOUTH FLORIDA LEGAL GUIDE Volume 14, Number 2, 2013 Mailing address PO 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 lawyer is an important decision that should not be based solely on advertisements. Before you decide, ask the attorney to send you free written information about qualifications and experience.

TO ORDER COPIES OR REPRINTS CONTACT: INFO@SFLEGALGUIDE.COM OR CALL: (786) 879-7638 WWW.SFLEGALGUIDE.COM

Roundtable

FINDING CAPITAL SOLUTIONS A REAL ESTATE FINANCE ROUNDTABLE TO ADDRESS TIMELY issues in commercial real es South Florida Legal Guide held a roundtable discussion with leading professionals on September 24. This special event for our Financial Edition was hosted by Gibraltar Private Bank & Trust in Coral Gables. Editor Richard Westlund moderated the highly interactive 01 six participants: 3 ( + 5 Culbertson 3 " 6 " 7 8 3 + ! ( !

9 +8;" 3 & < ) = > 8 5 % 3 ; 7 9 ( 5 ( 5 6 66> 3 8 " ( = Marder Q. The commercial real estate market in South Florida

Somerstein: 9

were all doing distress transactions. They are not doing the enormous land development deals like they used to do in the

?@ 111 K 111 land and products that go online as needed. Price points are rising to the point where some deals don’t make sense. $ N base purchase price but also for a contingent purchase price $ give away before. The single-family market is getting very $ % are a lot of larger developers who want to do deals but don’t need to do so. Some have pared down their development staff to reduce overhead — one of the smart lessons from < 8

Q

! " We are very focused in Florida and New York ( !

# 9 !

the prices have not come back the same way.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

7

Roundtable

English: # #

Q. In the multifamily market, one !

# ! uses the buyers’ money. Are you seeing

become more available?

Somerstein: I’m seeing prices rise in major cities in Texas, South Carolina, Georgia and Florida. But the increases are not uniform. It’s not so much the downtowns or the class &

Q. Are investors and developers overpaying for properties? Foschini: We see a lot of that on the interna ( ! 9 N 8 % 8 institutions and a few high net worth foreign % ( $ leading to increases in rental rates. 8

Cronig: We need also to recognize that ! X ( dirt cheap. Compared with commercial % Somerstein: # Z X ( % $ them, though. Kriss: [ \ ( !

> [ \ ( too much, and that can spoil it for others 8 don’t see as much competition here. Yes, there is competition and people want good $ [ \ ( !

deals here.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

English: South Americans are comfort #

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% ) ) % ) ! " ( !

]1 $ K1 for the construction of new condominium N % K1 percent deposit is slimmer for a $300,000 unit than at a higher price point. Somerstein: While getting 100 percent was the course of conduct in the Middle East as well as South America. Cronig: The Florida condominium statute ?1 %

N ?11

DREAM FOCUS PHOTOGRAPHY

Roundtable participants (L-R): Adolfo Henriques, president and chief executive officer, Gibraltar Private Bank & Trust; Charles Foschini, vice chairman of South Florida Markets, CBRE; Steven Cronig, partner, Hinshaw & Culbertson in Miami; Ronald Kriss, managing partner of the Miami office of Stroock & Stroock & Lavan LLP; Erica L. English, shareholder, Katz Barron in Miami; and Barry E. Somerstein, shareholder at Greenspoon Marder in Fort Lauderdale

Roundtable

and are at the tail end in a bankruptcy if the project goes under. It’s an enormous risk for the buyer, and I think buyers will be less tolerant of this model in the future, even if the developer uses a bond to cover that 10 percent. Henriques: For us to do a loan there has to be hard equity in the project by the sponsors. Also, we would not allow the de | } ?1 Steve is right and typically the loan comes ahead of the owners’ money. So, we would be looking at an equity commitment of 40 percent or more for the construction of the project. It doesn’t all come in up front, in terms of the timing of that money and the commitment. On the multifamily rental side, the numbers are different, but it still comes to a minimum of 30 percent of hard equity upfront. The loan money is out there but there has to be substantial sponsor con Somerstein: We have done four deals with no construction liability at all. The developers are using forward purchase contracts as credit enhancements for their personal guarantees. We see that with a lot of developers. Foschini: When you get into structured

those who don’t need it are the ones who get the money.

DREAM FOCUS PHOTOGRAPHY

Somerstein: In some cases that’s true, and in other cases, people with high net worth

When they stabilize the property, they will exit through Fannie Mae or Freddie Mac. Although they can get the loan, they don’t want the lease risk when the building gets its +' ~ Q. How are institutional investors viewing South Florida? Somerstein: Our market has grown up in the last generation. The institutional appetite is high for multifamily and for industrial. They look at the Port Miami infrastructure projects and the expansion of the Panama Canal as major factors

Steven Cronig

that make our industrial market appealing on a national level, like northern New € look at Brickell, Coral Gables, downtown Fort Lauderdale, downtown Orlando and Tampa’s Westshore market. There is no ap Kriss: Bargains today are much harder to  N $ it’s back to business as usual. I think the institutions have liked Florida for decades, regardless of the market cycle. During the recession of the late 1980s, I was in the ) N ance company. He had a map of the U.S. with green push-pins for every performing loan and red for nonperforming loans. In Florida, there were so many red pins he $ Q. What are lenders doing today that may be different from the last cycle? Kriss: In my experience, lenders have short memories. They made a promise never to lend over a certain LTV [loan to % 0K and 100 percent loans. Today, everything is fair game again, and they don’t remember the bitter experiences of the past.

Erica L. English

They have to be in the market and there is competition on the lending side. While the institutions have been burned in Florida worse than in most other states, they are still here. While they said they wouldn’t lend without recourse, and never to lend on an unsubordinated ground lease, they’re still doing that. Somerstein: Speaking of ground leases, we are doing three of those deals now for clients with the Florida Department of Transportation, Port Everglades and Florida Atlantic University on its research park. Cronig: Has the increased level of bank 0K ?11 exuberant lending practices of the past cycle? Henriques: I don’t think it’s the regulations. Typically, the regulators will react once there is a problem, rather than in anticipation of the problem. It’s really the policies and procedures from the people who are directing those institutions. Somerstein: What about the method of com for bringing in new loans. Has that had an impact on the scrutiny of those loans?

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

9

Roundtable

have maturities coming up, so we’ve been able to see those deals come together. Somerstein: A lot depends on the type of product. You mentioned marinas, and I represent several marina developers. With one apartment marina, we used < with the Fannie Mae requirements. Fan

covered more than 25 percent of the area, so I created a third-party entity to own the marina bottom and gave a perpetual easement to the docks, and included a legal description of the docks as part of the apartments. We have also completed a number of deals by restructuring the ownership in entities.

Henriques: Today, there are regulatory directives around that side of the lending business. It is absolutely frowned upon to set up any type of payment that rewards the person approving a transaction. In our bank, we totally separate the two functions. The person who is bringing in the transaction and sponsoring it has no say in the actual underwriting. The person who is underwriting the loan is rewarded based on the performance of the portfolio, not on the basis of production. Somerstein: In my experience, that’s unusual for a bank. And let me add that a client of mine borrowed from you on a recent project and you took a conservative approach and did a very good job of knowing your customer. Henriques: Thank you for those kind words. We truly believe that it’s service that differentiates one bank from another. Foschini: I see a change on the CMBS [commercial mortgage-backed securities] side. In previous cycles, there was no difference between the two areas. Now, I do see a lot of regulatory discipline in this area. Some of the regulation makes In general, the CMBS concept does work well, when applied correctly. Not everyone 10

Ronald Kriss

wants a recourse loan. If you do a deal with 100 investors, why should you sign for the loan and risk losing your house if the deal goes bad? In my opinion, CMBS is an excellent tool to create liquidity. What came unhinged in the last cycle was ratings. Taking packages that included high-risk securities and giving them an A rating just didn’t make sense. Q. How are you helping your clients deal English: I’ve been lucky in that my clients ing for their deals. That includes some challenging pieces of property, where the fundamentals of lawyering have come into play to squeeze square pegs into round holes. But most of my clients who are buying and developing have strong cash positions and are not highly leveraged, so it’s the portion they did want to get into debt. On the other hand, our lender clients are having a harder time doing deals, because there are so few projects that meet their metrics. We have seen insurance companies be more aggressive in pursuing niche ! there for marina properties, and lot of them

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

Cronig: 9

< # nancing, the biggest problems occur when foreign purchasers have a problem qualifying for U.S. banking relationships. The famous know your customer regulations, in my opinion, have been taken too far. One of the results has been that South Florida has missed out on many foreign investment opportunities, including the EB-5 projects that can generate new jobs here. $ % Kriss: In dealing with distressed transactions, I tell clients who are lenders or purchasers of notes to make the deal. Figure out what you have to do to get the borrower or subordinate lien holder not to contest a transfer of ownership. They will usually say something like, “I’m not going to give anything to that SOB.� But a lot of money in legal fees and the carry # get your judgment of foreclosure, you still have to deal with the bankruptcy risk and appeal risk. So if you can construct a deal with the opponent in a foreclosure, you’re better off. Forget about egos and principles. You have to look at these situations from a dollar and cents standpoint. That’s why most of the foreclosures we’ve done

DREAM FOCUS PHOTOGRAPHY

Charles Foschini

Roundtable

Sometimes you have to get a litigator involved and knock some sense into the opponent, but in many cases a foreclosure can be handled as another transaction. Henriques: Fortunately for all of us, most people still believe that if they borrow money they have to pay it back. It is the exceptions that create the problems and give industry a bad name. When we have

) standing of the problem is the best way to react in an appropriate manner and provide them with the right level of support. That happens most of the time. There are instances where a borrower walks away and says, “This is your problem, bank.� But remember that whatever doesn’t get paid back to the bank hits shareholders in their pockets, and if a bank fails, those costs wind up being carried by the public

( from not paying back a loan, the problem ends up being carried by someone. Most of the time with us, a borrower will come in and says here’s the situation, here’s what I have to pay back and here’s what I can do, and most of the time we develop a plan that works for everybody. Q. How has the recent rise in interest rates affected the market, and what do you see going forward?

rates, which have gone up about 100 basis points in the last six months. But since rates are still far below historical levels, that rise won’t stop the growth. One other thing to consider is that the federal government has been judicious in the release of single-family homes. There is a tremendous backlog of distressed mortgages that have not yet been foreclosed. If the government continues to monitor that process and avoids dumping all those & for other real estate sectors like multifamily and retail, the developers will throw higher rates into their proformas, and go ahead with doing their deals. I think we’ll still see good activity. Foschini: I agree, as well. The construction costs of capital haven’t moved at all, and are still very low, so there’s no rate impact there. Even the 100-point basis % still below the historic rate of 8 percent for a non-recourse loan. It’s a healthy climate and developers and lenders look at the fundamentals of the asset, the market and the sponsor, rather than focus on the interest rate. In the commercial $ their spaces and it’s moving toward being a landlord’s market again.

DREAM FOCUS PHOTOGRAPHY

Barry E. Somerstein

Henriques: We are beginning to see a lot more activity on the commercial market as well. Six months ago, a lot of Now, most of the new loan production on the residential side is purchase transactions, and we see a lot more activity going forward here. We do expect to see interest rates remain low. Kriss: There is still plenty of room for rates to go up and still stay below or within the historical averages. I think we’re in for some good years ahead. Cronig: At some point, the federal government will stop lending money at a zero interest rate, and investors will head back to assets that pay some return. That might create some competition for the funds now going into real estate investments. Another thing to consider is that the last commercial property in South Florida has not yet been sold. Every time I talk to a broker, I hear, “This is the last piece available — you’ll never be able to } 8

N utilized buildings that can be replaced. opportunities throughout the commercial real estate market.

Adolfo Henriques

English: The forecasters say rates have to go up, but the question is what time horizon. I would hope we’re looking at end ]1?K because our recovery needs that much time. However, the sensitivity to interest rates does not apply evenly to all sectors. Where cap rate compression is happening as in multifamily, then interest rate rises do hurt. But my clients who are buying and developing other product types are not too concerned about rates. Somerstein: I agree 100 percent. The question of rates really does depend on the product. In the South Florida residential housing market — which is a real driver in our sputtering economy — buyers have a real sensitivity to long-term SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

11

ABOUT OUR PANELISTS

Steven Carlyle Cronig A partner at Hinshaw & Culbertson in Miami, Steven Carlyle + !

8 + real estate attorney who concentrates his practice in commercial real estate. “My practice is divided between representing lenders and non-U.S. clients, mostly from Europe, who purchase U.S. real estate,� he said. “I handle inbound investment but don’t do real estate work outside the U.S. My practice has been consistent over the past 30 years, although I haven’t represented many hedge funds lately as I did before 2006.� Today, Cronig represents developers in acquisitions and dispositions of property; creation of development entities such as joint ventures, limited partnerships and REITs; preparation of plats, subdivision covenants, and various documents, declarations and prospectuses. He also represents borrowers in closing construction and commercial loans and prepares construction contracts; lien administration and closing documents. Cronig represents many commercial and private lenders in connection with the structuring of new asset-secured

tion of lender portfolio assets, and other activities. Erica L. English A shareholder at Katz Barron in Miami, Erica L. English has been

$ ; " Practice Group since 1986. “As market cycles change, my practice evolves from transactions to distressed assets and some litigation,� she said. “I am also involved in mergers and acquisitions, as well as private equity deals, mostly concentrated on the real estate industry. I have a heavy emphasis on lending, leasing and assisting with development projects with a subspecialty in hospitality and private clubs.�

12

English previously practiced commercial litigation at the and lending disputes. She now uses that experience to counsel clients regarding strategy and risk in transactional matters and to support the Litigation Practice Group in loan workouts and in developing case strategy for real estate-related litigation. Charles Foschini A nationally recognized market leader in real estate investment banking, Charles Foschini is vice chairman of South Florida Markets, CBRE, in Miami. “I am responsible for business development and the structuring of complex debt and equity investments throughout the region� he said. “I do capital place all around the country.� In his role with CBRE, Foschini has been involved in the 450 investment properties totaling over $10 billion in value, including several landmark single asset transactions in excess of $200 million. Foschini has consistently been honored as a recipient of the Colbert Coldwell Circle, which recognizes the top 3 percent of commissioned salespeople at CBRE, and he was the 2005 winner of CBRE’s Innovation Award for his team’s cutting edge business practices. Adolfo Henriques Adolfo Henriques joined Gibraltar Private Bank & Trust in February 2011 as vice chairman, president

is now president and CEO of the Coral Gables-based company, which has eight full-service private banking and wealth in Coral Gables, Fort Lauderdale, downtown Miami, Miami Beach, South Miami, Naples, Ocean Reef and New York. “At Gibraltar Private, we provide capital for

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

people to purchase residential and commercial real estate in substantially all property types,� he said. “During my career, I’ve been on the development side and the distressed area of real estate

} Prior to joining Gibraltar Private, Henriques was vice chairman of the Related Group and chairman, president and CEO of Florida East Coast Industries. His extensive banking career includes being chairman of NationsBank for South Florida and CEO of the South Region for Regions Bank. Henriques has also been involved in many local charities and business organizations including having served as chairman of the Greater Miami Chamber of Commerce and the United Way of Dade County. Ronald Kriss Ronald Kriss is managing partner 9 ( 5 Stroock & Lavan LLP, and chair $ Z > Group. He practices commercial real estate law, with a focus in loan recovery representation for institutional lenders. “Over the years, I have foreclosed on major properties, including the Southeast Financial + ' 8 Four Ambassadors, and the Hyatt Regency in downtown Miami,� he | N closure on a 14-acre development site in downtown Sarasota on the bay and will help them market the property for sale. I am also helping clients with buying, selling, lending and leasing commercial real estate Kriss also has extensive leasing

) the representation of clients in construction and permanent real estate lending, sale leaseback,

Kriss has represented clients in N including the acquisitions and

shopping centers, and industrial parks, and the development of condominium projects, residential subdivisions, and condo hotels. Barry E. Somerstein A shareholder at Greenspoon Marder in Fort Lauderdale, Barry E. Somerstein concentrates his practice in the area of real leasing, general corporate sports law and land use. Somerstein has represented many clients in the negotiation, structuring and documenting of real estate asset transactions, primarily, in connection with shopping centers, “I am a deal junkie and real estate is the primary widget in my practice,� he said. “I am also a real estate investor in partnership with Related Group and other investors. We were buying apartments and shopping centers around the country, but based on the exuberance in the market, we’re mostly sitting on the sidelines now, although we are doing an apartment project in Boca Raton and another in Alabama. I also do a lot of time-share work, and much of my practice is outside Florida in places like South Carolina, Chicago, Nevada and Missouri.� Somerstein works with developer clients in connection with the acquisition, permitting, development of large tracts of real estate. His extensive background has enabled him to assist numerous clients in taking a raw piece of real estate and develop He also represents landlords in connection with the leasing of and warehouses, and represents both lenders and borrowers in connection with real estate and

had extensive experience in loan workout and reorganizations.

DREAM FOCUS PHOTOGRAPHY

Roundtable

Financial Professionals

ADVICE FROM TOP SOUTH FLORIDA FINANCIAL PROFESSIONALS SOUTH FLORIDA ATTORNEYS, ACCOUNTANTS AND OTHER PROFESSIONALS OFTEN NEED EXPERT ADVICE TO GUIDE THEM TOWARD THEIR PERSONAL AND BUSINESS GOALS. WE ASKED SEVERAL EXPERIENCED WEALTH MANAGERS AND FINANCIAL PROFESSIONALS TO COMMENT ON ISSUES TO CONSIDER WHEN ENGAGING AN ADVISOR, HOW TO DEVELOP INVESTMENT GOALS AND STRATEGIES, AND OTHER KEY ISSUES. HERE ARE THEIR RESPONSES.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

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Financial Professionals

CARLOS BATLLE - J.P. MORGAN PRIVATE BANK

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} Carlos Batlle is Managing Director – Wealth Advisory Group of JP Morgan Private Bank in Miami. He has been honored as the Professional Advisor of the Year by the Key Biscayne Community Foundation. Batlle received his B.S. from Georgetown University, his J.D. from Columbia University and his LL.M, from the University of Miami.

Financial Professionals

SEVERAL YEARS AGO, Howard Cohen met with Dick and Susan, a couple aged 68 and 55, respectively, who hadn’t prepared |& several emotional meetings, I made them aware of the necessity of thinking about } + |% $ much in the way of assets to consider, but I taught them the power of patience and I suggested that Dick purchase a small 10-year term life insurance policy, so if something should happen to him, Susan } & Z with cancer and he passed away just 10

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} + | } + &“& Equitable, has been working with indi ?00K 8 N &“& & + had 28 years of experience in business, ' of his company’s major achievements was > + 6 In this second career, Cohen enjoys helping clients shed light on planning for | N +"' ing consultant, but felt I could help people N &“& & } + |( I’ve developed successful relationship

9 of my clients have owned or managed various aspects of businesses, so my own business background has helped me relate } Cohen believes that women face specific challenges and have distinct needs from men when it comes to retirement planning strategies, not least because they tend to have longer life spans and so must become more knowledgeable about estate plan |9 away from a career to raise children, so they often have to play retirement savings

HOWARD G. COHEN – AXA ADVISORS

catch-up,� he says, adding that women need to take the time to consider their options and learn more about building } & portion of their current income to save for

| $ you will begin to save for retirement when you reach a more comfortable income level, but the longer you put it off, the harder it will be to accumulate the amount you need,� he |"

} & als, whether in South Florida or elsewhere, should look at their options for capitalizing on their accumulated assets, such as how to take a lump sum payout and safeguard |\ low you various strategies to take payouts over time, based on your life expectancy,� |>

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

15

Financial Professionals

CHRIS GARVIN – UBS FINANCIAL SERVICES, INC. CHRIS GARVIN LEARNED nancial planning at an early age. “My father was in the investment business and had me investing since I was in my early teens,� says Garvin. “I’ve been involved with investing for as long as I can remember.� After working many summers with his father, Garvin joined PaineWebber in his early 20s and came to UBS Financial more than 20 years, his father, H. Glenn Garvin Jr., has been part of The Garvin Financial Team. “Our team focuses on high-net-worth individuals and their families, and we also work with many local businesses,� says Garvin, whose practice includes investment planning for individual clients and tions. “I enjoy working with people to goals, as well as looking for interesting investment opportunities. Additionally, I like to specialize in strategic portfolio management, equity analysis, and client Garvin says one of his assets as an advisor is more than 20 years of experience in the capital markets. “Recently, we have had to become more creative in generating ! "# egy we utilize is buying and selling options $ % & 16

Garvin says one of the biggest mistake made by many successful South Florida professionals is not having an adequate estate plan in place, including the proper titling of assets. That means it’s important attorney that specializes in estate planning. In addition, many professionals do not have an investment plan or strategy $ % '

place, he adds. “Many investors tend to have a herdlike mentality, and most of the time, money is made away from the herd,� Garvin says. Before choosing a wealth manager, Garvin suggests asking: ( ) $

& * ( + %

$

$ * ( ) $

%$ $* ( ) $ * / % ! % a road map for the future, says Garvin. “Whether you’re looking to save more intelligently, access your money more

$ % $!

%

$ $ $

$ goals over time,� he says. “We take the time to understand your needs and goals, and proactively provide appropriate solutions. Our

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

goal is to help clients pursue their unique wealth management goals, Many of our referrals come from existing clients, attorneys and accountants that recognize the quality of service we have provided over the years.� Chris Garvin leads The Garvin Financial Team at UBS Financial Services, Inc. in Fort Lauderdale as Senior Vice President – Wealth Management. He is a member of UBS’s Chairman’s Council and a Registered Investment Advisor Representative. He is licensed with the NYSE, NASD and state licensed for annuities and life insurance. Garvin was recognized as one of Barron’s top 1000 advisors in 2012.

its employees are not in the business of providing tax or legal advice. These materials and any tax-related statements are not intended or written to be used, and cannot be used or relied upon, by any such taxpayer for the purpose of avoiding tax penalties. Any such taxpayer should seek advice based on the taxpayer’s particular circumstances from an independent tax advisor. ŠUBS 2013. The key symbol and UBS are among the registered and unregistered trademarks of UBS. All rights reserved. UBS Financial Services Inc. is a subsidiary of UBS AG. Member FINRA/SIPC.

Financial Professionals

MORE THAN THREE decades ago, Maria Elena Lagomasino began working with wealthy families at Citibank. “I began my career as a relationship manager working with South American clients.� she says. “I found what was to be my calling: preserving and protecting family assets. Since then I’ve dedicated my career to working with families, helping them to protect their wealth, create living legacies, listening to them tell me their challenges and helping } In January, Lagomasino teamed with business partners Santiago Ulloa and Michael Zeuner to form the leadership #" ! '

Lagomasino typically works with families with at least $50 million net worth or more. “We help families to think about their wealth as a business and tap into the same processes and best practices used to } says. “We help them build what we refer to as wealth enterprises.� When selecting a wealth manager, Lagomasino says one of the most important questions to ask is “How are you paid?� Advisors should not accept any fees in the form of sales commissions or incentives, so clients can receive *

( |%

and empower families, not to sell them particular securities in which the advisor } Over the years, Lagomasino says she has seen two common mistakes by professional % dination and communication among advisors, resulting in mistakes that can be costly to the client. The second is taking complete control of the wealth management decisions so the client becomes a passive participant. “I believe clients should stay informed around the key decisions regarding their wealth management, continuously learning and always being engaged,� she says. That includes keeping younger members of the family active and involved in the process, so they gain knowledge for the future. “I often ask each family member to pick the one wealth issue they’re most

MARIA ELENA LAGOMASINO – WE FAMILY OFFICES

concerned about,� Lagomasino says. “I have found this strategy helps to open doors to communication, and enables the family to come together to set the priorities for their wealth, a process that leads to better results.� Noting that the values of family and private capital have been integral parts of her life, Lagomasino says, “I have been honored to help families navigate their own challenges of life with wealth. My favorite aspect of working with them is watching the ‘ah-hah’ moments of relief when they realize they are not the only ) #

whatever challenge they are experiencing,

whether it relates to their spending, their children, estate planning, or any of the myriad of challenges associated with a life with wealth — I am reminded why I chose } Maria Elena Lagomasino is CEO and > & :) ! ( ? in Miami. She was formerly CEO of @ / ! ( ? ! * !* ( ( " in 1989 as Asset Management Advisors > '2 ! )? Z&> & 1 and served as head of Chase Manhattan & 1 / " 1* " 2

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

17

Financial Professionals

It’s important to realize managing money is an art, science and specialty. Investing is an unemotional and systematic process. You must be willing to ride longer-term approach and be willing to be a contrarian.�

MICHAEL NICKLER – MORGAN STANLEY GLOBAL WEALTH MANAGEMENT

BACK IN MARCH 2009 when the stock market was near its bottom and the media was warning of a prolonged downturn, Michael Nickler took a contrary approach. “We advised our clients to rebalance to take advantage of the bargains available,� [

9 gan Stanley Global Wealth Management in West Palm Beach. “We became more growth oriented and it paid off.� Nickler has been helping clients make ]– “I always had a strong interest in investments.,� says Nickler, who graduated with > ( X After graduation, it was a very natural 18

and successful transition to become a

} Today, Nickler advises high-net-worth individuals, including successful business

and branch managers, municipalities, and institutional clients. “One of my strengths is the methods and strategies regarding how I manage money for each individual client,� he says. “I take a disciplined objective approach to delivering results, and I enjoy helping clients achieve their goals.� When seeking a prospective wealth manager, Nickler says it’s important to ask questions like these: 3 ’ — )

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

and loyalty are very important). 3 #

’ 3 # ’ 3 # ’ 3 # 3 # ’ “One of the biggest wealth management mistakes made by attorneys, accountants and other professionals is trying to manage their own investments,� says Nickler. “They can become emotional regarding their investments. It’s important to realize managing money is an art, science and specialty. Investing is an unemotional and systematic process. \ * tions, have a longer-term approach and be willing to be a contrarian.� Michael Nickler is a Financial Advisor who leads The Nickler Group at Morgan Stanley Global Wealth Management in West Palm Beach. A member of Morgan Stanley*’s prestigious Chairman’s Club,

" 1 / 32 2 tive years by Barron’s and is currently ranked in the top ten in Florida.

Financial Professionals

WHEN CATHY PARETO graduated from Florida International University in ?00K | <

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} & N registered investment advisor with less ™]1 > ]11š |8 } | $ } > $

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$ Z $ } Cathy Pareto, MBA, CFPŽ is founder and president, Pareto and Associates, # 2 @ " 2 Financial Planner Ž with an MBA from Florida International University. Her ! ! " the Top 10 Most Dependable™ Wealth Managers for Women in the U.S. as well as being selected to Worth Magazine’s list of America’s Top Wealth Managers for 2008.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

19

Financial Professionals

SCOTT POULIN – WESCOTT FINANCIAL ADVISORY GROUP

SOON AFTER SCOTT POULIN started his career as a management trainee at SunTrust in 1989, he decided to work in the bank’s trust department. “I quickly learned all aspects of wealth management, including ) } } Today, Poulin enjoys building trusted relationships with Wescott Financial Advisory Group’s clients, who include high-net-worth individuals, families, trusts, foundations, pension plans and institutions. In the Miami �K $ ents are attorneys. |& <

can quickly respond to a client’s need and

< } > 20

“Since our investment platform is open and not proprietary, our investment advice is transparent and completely void of any *

$ } Factors to consider when choosing a

references, particularly a current client with similar goals as your own. “When speaking with the reference, ask how often the advisor communicates with them, how often do they evaluate their goals and how would

} Poulin suggests asking for a formal written outline of the advisor’s services, and the payment process. “You should write checks to a third-party custodian, not to your

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

} |&

sponsibility, in which they are legally bound } Since wealth management decisions can be complex, Poulin recommends working with a professional team — including an accountant, attorney and wealth advisor — to coordinate services, particularly when creating estate and tax planning documents. At that time, the assets should be retitled appropriately for the new established entities. It’s also important to < retirement plans and IRAs be current and consistent with estate planning documents, he adds. Poulin also suggests reviewing estate planning documents annually with the |+

action plan with distinct and deliverable dates for accomplishment, including those responsibilities that fall on the client’s } In today’s higher income tax environment, Poulin receives many inquiries from business owners about how they can lower their income taxes. “I often ask them a simple question: ‘Do you have a quali

upwards of $250,000 annually, substantially

’$} > says. “Although my clients usually say, ‘There is no such thing,’ actually, there is an ;( < designed correctly, upwards of 92 percent of all contributions into the plan are for the % tions are pre-tax, grow tax deferred, and are ?11 } That’s one of the ways Poulin works with clients and family members to build and manage wealth effectively. As he says, |( $ } Scott Poulin is managing director, client development for Wescott Financial Advisory Group in Miami. Prior to joining Wescott, he had more than 20 years of trust and investment experience working with such organizations as SunTrust, NationsBank, BankBoston, Gibraltar Private Bank & Trust and Coconut Grove Bank.

Immigration Law

AN UNCERTAIN WELCOME:

HOW IMMIGRATION POLICIES ARE IMPACTING SOUTH FLORIDA’S LABOR, REAL ESTATE AND FINANCIAL MARKETS

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

21

Immigration Law

Grace Escalona

WHILE POLICYMAKERS in Washington, D.C., wrestle with immigration reform, South Florida attorneys grapple with the day-to-day issues of helping their clients navigate the maze of regulations. The problem is particularly acute for businesses seeking to “import� talented executives and professionals from other countries, or to attract foreign investors for job-creating projects. “Immigration is an issue that affects ev ( !

standpoint,� said Grace Escalona, partner at Zumpano, Patricios & Winker, P.A. “Real estate, foreign investment, technology companies and healthcare organizations are all impacted by U.S. policies on 22

who can come into the country and work here. After all, employees are the crux of our nation’s business system, and we need both skilled and unskilled workers to meet industry demand.� In the business world, immigrationrelated legal issues generally fall into several categories: 3 " for foreign residents sponsored by a prospective employer, according to the U.S. Department of State’s Bureau + & " (October 1 – September 30), approximately 140,000 employment-based visas are made available. 3 [ skilled and non-skilled workers to work in the U.S. These include visas for skilled workers (H1-B), and intracompany transfers (L1-B) 3 % qualify for an investment-based immigrant visa under the EB-5 program, a foreign national must invest at least $1 million in a qualifying commercial enterprise or at least $500,000 in a high-unemployment or rural area, and create at least 10 full-time jobs within two years. Another issue that affects businesses, as well as individuals and families, is how to address the large number of “undocumented� foreign residents who live in South Florida without legal rights. “It is illegal for an employer to hire someone not authorized to work, and this administration is serious about employer sanctions,� said Ira Kurzban, partner at Kurzban Kurzban Weinger Tetzeli and Pratt P.A. “Our economy is based on small business, and the combination of strict interpretation and enforcement of the immigration laws has hampered the ability of people who want to start up small businesses here to the detriment of the South Florida community.� On the other hand, the U.S. is handling visa applications from Brazil and other Latin American countries more quickly than in the past, according to Roger Bernstein, managing partner, Bernstein Osberg-Braun, P.L. “Over the past year, the

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

U.S. State Department has made efforts to expedite the wait times for tourist visa appointments at U.S. consulates in Brazil and throughout Latin America,� he said. “But unless foreign nationals can demonstrate countries, the tourist visa application may be denied. This is especially true for single applicants between the ages of 20-30 who are subjectively perceived as intending to immigrate.� &  6&# "[!';+"9"[%$ PERSPECTIVE Today, South Florida employers face a long series of challenges when seeking visas for almost all types of foreign workers, according to Roy J. Barquet, partner at Foley & Lardner LLP, and chair of the $ [ 5 + sular Law Practice. Barquet says the U.S. Citizenship and Immigration Services (CIS) views employment visa petitions from a law enforcement perspective, trying to identify potential terrorists and weed out threats to the nation. “Even for immigrants who clearly pose no threat at all, they are sticking as closely as possible to the letter of the law on non-security related statutes and regulations,� he said. “There is no room for any kind of favorable discretion on visa petitions, which need to be collaborated by independent evidence.� As an example, Barquet cites CIS practices regarding L-1A petitions for transferring an executive or manager from a foreign operation into the U.S. “In recent years, CIS has said the petitioner has to be managing people who are university educated and hold college degrees, even though there is no such requirement in the regulations,� he said. “So, you have to submit an organization chart for the overseas operations and supply photocopies of the university degrees of the people that he or she supervises. If the candidate is working in a country like Brazil, which has very intense privacy laws, you have to hire a local attorney to try to get those diplomas from half a dozen subordinates. That’s a really time-consuming and frustrating situation for employers.�

Immigration Law

Larry Rifkin, managing partner, Rifkin & Fox-Isicoff, P.A., says small to mediumsize U.S. companies face particular challenges when applying for an L-1A visa to transfer a manager or executive. “Some immigration examiners tend to look to the number of employees when consider < ) managerial in nature,� he said. “This is incorrect. However, overcoming the subN X ( ) tive and managerial structure. It may also ) to understand that a U.S. company can maintain and grow its operations while it corporate group.� U.S. immigration attorneys have been asking CIS to release a policy memo for L-1B visas for multinationals seeking to bring people with specialized knowledge into their U.S. operations. “Without a policy memo, the CIS decisions change from case to case,� Barquet said. “That puts attorneys in an uncomfortable position when a company asks if a certain candidate will qualify for a transfer. We have to tell them it might be a costly endeavor with uncertain results.� Rifkin says the annual quota for H-1B visas for highly skilled workers is another serious immigration issue for both U.S. companies and foreign nationals alike. “The annual quota impacts the ability of companies to attract the best talent for professional positions that require a university degree,� he said. “The ability of companies to operate globally by employing foreign professionals would improve the South Florida economy since Latin America.� Because of the limited number of H-1B visas each year, applicants must apply on April 1 to obtain a visa the following October. “This year, more than 150,000 people applied for about 58,200 visas,� said Kurzban. “We should increase the number of H-1B visas or change our system to make an easier path for STEM (science, technology, engineering, math)

Ira Kurzban

Roger Bernstein

professionals, since they are so important to our nation’s future.� To bring in lower-skilled workers, a South Florida employer must go to the U.S. Department of Labor and complete a months, according to Escalona. “You have < N to work with CIS to obtain temporary visas,� she said. “It’s not something you can do quickly because it’s such a timeconsuming process.� INVESTMENT-RELATED VISAS Back in the 1990s, the U.S. approved nonimmigrant (E-2) and immigrant (EB-5) investor programs to promote foreign investment of capital in the U.S. and to create new jobs for U.S. workers. Because only a limited number of countries are included in the U.S. Treaty of Commerce and Navigation, not all foreign entrepreneurs are able to petition for E-2 nonimmigrant treaty investor/trade visas, said Rifkin. “This limits the ability of our area to attract talented individu-

als who can open up corporations and provide employment for U.S. workers,� he said. In recent years, potential investors have been increasingly interested in the EB-5 program, which allows them to make equity investments in job-creating regional centers approved by the federal government. “There is a resurgence of direct equity investment in projects and businesses in South Florida of well over $2 billion mostly coming from Latin American, European, Chinese and Russian investors,� said Bernstein. “These programs are expected to grow and gain increased recognition and popularity.� Rifkin adds that there has been an upward trend in the number of EB-5 applications being processed, particularly submissions by Chinese nationals. “However, many attorneys do not fully disclose the risks associated with the EB-5 Regional Center investment program,� he said. “This is a very good program for individuals seeking residency in the United States through their own investment vehicle, but caution has to be exercised by both the client and the attorney.�

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

23

Immigration Law

Roy Barque

However, Kurzban says CIS is not making it easy for potential foreign investors or for the U.S. companies developing regional centers. “A company was planning an EB-5 regional center in California that would bring new jobs and stores to an area with chronic unemployment and no retail outlets,� he said. “You would think 8 + ( )aminer said the applicant had not provided proof that the residents would go to a store in their own town rather than driving 30 % $ ) the issues facing foreign investors.� Like other immigration attorneys, Barquet notes that CIS approval times for pending EB-5 regional centers have increased substantially. “In some cases, CIS has engaged economists to understand N project will actually provide new employment,� he said. “Current processing times can now be 14 months or longer. As a result, some applicants are now bypassing the regional centers and taking more control of the process by making a straight-up $1 million investment in a company that will create at least 10 new direct jobs.� 24

Larry Rifkin

INDIVIDUAL VISA ISSUES Like most areas of the law, immigration policies are affected by recent legislation and court rulings. On June 26, the U.S. Supreme Court invalidated a key section of the Defense of Marriage Act —Z'9&Âœ ) couples to immediately apply for green ¢ “Federal agencies are now required to ) the marriage is valid in the state or country of marriage,â€? said Bernstein. Eligible ) X (

residency petitions for a spouse can also do so for the spouse’s children as their own stepchildren. Another recent change is that spouses and children of lawful permanent residents (preference category F-2A) can now apply immediately for lawful permanent residence, according to Bernstein. This change ! ]& become “current� in the preference system,

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

said Bernstein, adding that there were 220,313 eligible spouses and children of lawful permanent residents on the waiting list when the policy change occurred in August. These applicants will be competing for about 88,000 visas, which were ) ]1?� year ending September 30. THE OUTLOOK FOR REFORM Like other South Florida immigration attorneys, Rifkin notes that comprehensive immigration reform has become a political “football� in Congress. “While some advances have been made, it appears doubtful that we will have a resolution of this issue in 2013,� he said. “However, we remain hopeful that change will eventually occur.� & ) would be good news for South Florida businesses and the entire country, adds Escalona. “Today, the U.S. has to compete with other countries for talented people and high-end investment. We want people to come here and invest in our economy. Therefore, it makes sense to welcome them to our country.

Labor and Employment

TRENDS IN LABOR LAW

SHIFTING THE BALANCE BETWEEN EMPLOYERS AND EMPLOYEES DURING THE LONG recession, South Florida employers often held the upper hand in disputes with employees, [ nomic recovery – combined with stepped-up enforcement of federal labor laws – is shifting the balance between employers and employees, according to several of the region’s

“When people are fearful of losing their jobs, they will put up with bullying actions by the employer,� said Z 8 Z 9 8 > & ! 6

|[ } But it’s not just the economic landscape that’s chang ! healthcare reform, employee privacy and workers’ compensation claims are among the issues keeping South !

“The Obama administration is aggressively enforcing labor and employment laws,� said Michael Casey, a partner at Duane Morris in Miami who represents ! "< " ' + —""'+œ [ 6 ; 8 —[6;8œ ' ! + + > —'!++>œ new theories of liability and obligations to impose on + ! ) + ""'+ closely at employers’ background screenings for arrests, convictions and credit problems to see if they exclude

blacks and other minorities from employment and violate + ; & ]110 ""'+ ! Z event-marketing company, followed by similar suits this June against a BMW manufacturing facility in South Carolina, and an Illinois-based discount retailer alleging that their screenings for criminal background records + ; & & N ""'+$ ! ""'+$ Casey also notes that the OFCCP wants employers to ÂŁ & —£&Âœ encourages employers to give preference to former service N € " N 5 # 9 who defends companies in complex employment disputes, said these types of “pattern and practiceâ€? cases are on the |% agencies are more active in looking for systemic patterns of

} #&=" &[Z 'X; +&("( While the number of employment discrimination cases has been fairly steady, Casey said there has been a huge surge ! 6 (

& —!6(&œ |( !

claims, which have risen by more than 400 percent in the

} |# }

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

25

Labor and Employment

Donna Ballman

Casey says the reason is that the plaintiff’s bar found that it was more advantageous to bring wage and hour suits than discrimination claims, where a plaintiff must prove “intent� on the part of the employer. “The FLSA rules, which date back to a 1938 law, are complex and vague in many respects,� Casey said. “And since only the plaintiffs can get attorney fees, it’s } Another reason for the increase is that South Florida has a large service industry, and many employers are vulnerable to wage and hour claims. “Plaintiffs will make their demands for damages so low that it’s not worth litigating,� he said. “So employers go ahead and settle those claims.� But settling too many claims can encourage copycats, he added. “Sometimes, $ and let the plaintiff’s bar know you’re not a pushover. The clients who have done that with a long-term view in mind are generally happy with the results.� NON-COMPETE AGREEMENTS ' * ployers and employees involves non-compete agreements and trade secrets. “We’re seeing more employers impose strict 26

Michael Casey

agreements on everyone who works for them,� Ballman said. “Even though Florida is one of the worst states for employees in regard to noncompetes, employers still need to show that they are protecting a legitimate interest. A lot of these agreements are either unenforceable or too broad in their coverage areas.� For example, Ballman represented a client who left his employer to open a competing business in an industry where virtually all businesses got their leads from the same source. “The judge said there was no non-compete violation because the employer did not have a protectable interest,� she said. “I’ve also seen companies publish their customer list online and then claim that their customer information is \ $ } '% "; "9>6'\"; +'[+";[( Healthcare reform is one of the biggest concerns for employers, according to Enjamio, who has been counseling many clients about the implementation of the federal Affordable Care Act (ACA), which mandates insurance coverage for individuals. “This is a tremendous concern to many businesses,� he says. “They are looking for ways to adjust to the changes. For an em-

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

ployer that offers health insurance, adding value to employees, while also helping to manage healthcare costs.� South Florida labor and employment attorneys are also looking closely at cases involving privacy in the workplace, and employees’ use of social media sites while on the job. “Clients are calling for advice about the rights of both employers and employees regarding privacy,� says Enjamio. “One suggestion is to review employee policies and procedures on an annual basis to be sure they keep up the changing law in regard to employees’ rights.� Other timely issues for employers include the U.S. Supreme Court’s overturning the Defense of Marriage Act (DOMA), which opened the door for states to approve same-sex marriages. “Many Florida companies have employees in other states who will be affected by this decision,� Ballman said. “For instance, more people will be able to be covered under health insurance as a spouse. It’s certainly an issue for employers to track.� Legalized marijuana is another social issue that employers need to follow, even though it appears unlikely to be approved in Florida. “It may affect a company’s drug testing policy, especially in states

who tests positive for marijuana,� Ballman added. Employers also need to respect employee rights in nonunionized workplaces, Ballman added, noting the NLRB is playing an active role in these types of matters. “Employees can discuss working conditions and compare wages and } “I recently represented a client who was $ protected right and employers should respect that right.� WORKERS’ COMPENSATION ISSUES From his defense perspective, Heath S. Eskalyo, principal partner and CFO at Kelley Kronenberg in Fort Lauderdale, says many plaintiffs’ attorneys look at workers’ compensation cases from the perspective of fees, as well as their clients’ injuries. “The trend seems to be to look at

Labor and Employment

the case and see if there are other areas of litigation,� he said. “Overall, the volume of workers’ compensation cases seems to $ other avenues to pursue.� Over the last few years, the Florida Legislature has changed its methods of calculating attorney’s fees in workers’ compensation cases, and now a percentage rather than basing the fee on an hourly rate.� If the case involves a minor surgery that costs $5,000, for instance, the attorney would get a $1,000 fee. The plaintiff’s bar is challenging the constitutionality of those fee calculations. Meanwhile, many plaintiffs’ attorneys are trying to turn workers’ compensation claims into larger employment-related cases, adds Eskalyo. “An attorney might take preliminary discovery on workers’ compensation claim and look at the wages and hours issues to see if the client was paid for overtime work,� he said. An employer with workers’ compensation insurance is usually immune from pain and suffering damages, based on state law. But if an on-the-job accident results in serious body injury or death, the plaintiff may try to show that the employer had knowledge of a defect, such as malfunctioning equipment, and then hid the defect, said Eskalyo. “If the plaintiff can do that, the case becomes a circuit court action with no cap on damages.� While the volume of workers’ compensation cases may be declining, the settlements are getting larger, Eskalyo said. That’s because the federal Medicaid program is mandating that money be set aside to cover the projected future costs of the worker’s medical care. “After the expert calculations are done, Medicare will review the reports and set a certain dollar amount for that set-aside, which ment,� Eskalyo said. “If you don’t protect Medicare’s interest, the agency can come after the employer, the carrier and both attorneys in the case.� In workers’ compensation cases, Eskalyo advises employers to be an active participant in the claims negotiation and litigation process. “Don’t rely on your

Heath S. Eskalyo

Juan Enjamio

carrier to know your company in the same way you do,� he said. “Employers should look at how else the company might be attacked and select a defense counsel that can look at the broader picture.� MORE ADVICE FOR EMPLOYERS South Florida attorneys say there are several basic steps for employers to maintain good relations with their employees, and minimize the risk of litigation or regulatory action. “Large employers need to be very active in employee relations,� Enjamio said. “Be sure you understand employee concerns, and don’t allow problems to fester. If you listen carefully and address the issues up front, you are less likely to be sued by employees and avoid union-related issues.� Ballman emphasizes the importance of training human resources (HR) personnel and listening to their advice. “This area of the law changes so fast that if you blink, you’ll risk messing up,� she said. “So make sure your HR people are well trained and are keeping up on the law.� One of the most important steps for employers is to enact policies that comply with the federal and state laws while allowing a company to accomplish its busi-

ness objectives, said Casey. “Since some * the regulators today, you need to design and implement hiring and employment policies that are both lawful and effective.� South Florida attorneys say employers should be sure to document any warnings or disciplinary actions and be sure the employee is aware of the problem. “Some managers don’t want to confront an employee or give a bad evaluation,� + |# he will say ‘Why didn’t you tell me so I ) $ ( a “last-chance� agreement giving the em performance.� Finally, Casey emphasizes the importance of careful hiring practices. “I recommend spending a lot of time in the screening process to avoid hiring a ‘bad apple’ who can hinder your operations,� he said. “Look at new hires closely during the probationary period, and if you’ve made a mistake, correct it quickly. A negative individual with a chip on the shoulder is more likely to sue you at some point and cause problems. Try to hire the right people who will help you achieve your organization’s goals.�

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

27

Guest Contributors

THE THREE-LEGGED STOOL By Stanley I. Foodman

T

hree weapons currently in the arsenal of our law enforcement authorities form a three-legged stool. They are The Foreign Corrupt Practices Act, the Financial Action Task Force and the Foreign Account Tax Compliance Act. Together, they close previously existing legal “loopholes� that protected corrupt and illegal behavior.

THE FOREIGN CORRUPT PRACTICES ACT OF 1977 (FCPA) This act makes it unlawful for certain classes of persons and sist in obtaining or retaining business. Its anti-bribery provisions prohibit the willful use of the mails or any means of instrumentality of interstate commerce corruptly in furtherance of any offer, payment, promise to pay, or authorization of the payment of money or anything of value to any person, while knowing that all or a portion of such money or thing of value will be offered, * her lawful duty, or to secure any improper advantage in order to assist in obtaining or retaining business for or with, or directing business to, any person. These provisions of the FCPA apply to all U.S. persons and certain foreign issuers of securities. The anti-bribery provisions !+>& directly or through agents, an act in furtherance of such a corrupt payment to take place within the territory of the United States.

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

Its accounting provisions, which were designed to operate in tandem with the anti-bribery provisions of the FCPA, require corporations covered by the provisions to: 1. Make and keep books and records that accurately and fairly * 2. Devise and maintain an adequate system of internal accounting controls. Corruption and money laundering are intrinsically linked and generally committed for the purpose of obtaining private gain. Money laundering is the process of concealing illicit gains generated from criminal activity. By successfully laundering the proceeds of a corruption offense, illicit gains may be enjoyed without The corrupt payments are not tax deductible. When concealed in the books and records of offenders, the books and records are inaccurate making business tax returns inaccurate. THE FINANCIAL ACTION TASK FORCE (FATF) This is the international standard setter for developing and promoting of national and international anti-money laundering (ALM) and anti-terrorist policies. Its recommendations, when effectively implemented, also help combat corruption by: 1. Safeguarding the integrity of the public sector, 2. Protecting designated private sector institutions from abuse,

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� cial system, and 4. Facilitating the detection, investigation and prosecution of corruption and money laundering, and the recovery of stolen assets. The FATF is an inter-governmental body established in 1989 by the ministers of its member jurisdictions with the objectives of setting standards and promoting effective implementation of legal, regulatory and operational measures for combating other related threats to the integrity of the a “policymaking body� working to generate the necessary political will to bring about national legislative and regulatory reforms in these areas. FATF collaborates with other international stakeholders to identify national-level vulnerabilities and protect the international oped a series of recommendations that are recognized as the international standard for combating money laundering, and terror of mass destruction. They are the basis for a coordinated response to these threats to ! issued in 1990, the FATF recommendations were revised in 1996, 2001, 2003. They were revised again most recently in 2012 and are intended to be of universal application. On July 12, 2012 FATF President Bjorn ( & & > = —&>=œ on Money Laundering 15th Annual Meeting in Brisbane, Australia, said, “In the new standards, tax crimes are included among the predicate offences for anti-money laundering measures. This will provide a better foundation for international cooperation against tax crimes and tax evasion. More ) of international efforts to strengthen public < many European nations.� FINANCIAL ACCOUNT TAX COMPLI&[+" &+% —!&%+&œ Signed into law in March 2010, FATCA is the most far-reaching law of its kind ever

enacted by the U.S. government. It effec —!! œ agents for the U.S. Treasury. By June 1, 2014, participating FFIs must be registered ;( = [ —= [œ be used to identify them as registered with the IRS and participating in the FATCA % !! = [

Â?1 * withholdable payments from the U.S. and its territories. Beginning March 2015, and every March 15th thereafter, FFIs will be < ;( accounts owned and controlled by U.S. taxpayers. They will provide the name of X ( ) —% [Âœ cial owner, the number of the account in the FFI, the balance in the account on the previous December 30th and the earnings of the account. In the past, the U.S. Department of Justice has maintained a policy of omitting U.S. income tax crimes from the list of % is not statutory. This is a policy decision that could be changed. % " % ;"" 6"=="Z (%''6 So, what we have is the FCPA, the FATF, and FATCA — the “three-legged stool.â€? In virtually every prosecuted FCPA case involving bribery paid by defendants to or the bribery was hidden within accounts in the defendants’ books as deductible expenses and not disclosed. These payments were not tax deductible. In some cases they were paid from accounts with U.S. !+>& The FATF has added tax crimes to its fenses. The U.S. is a full member of the FATF. FATCA will expose non-compliant U.S. taxpayers using foreign jurisdictions to obscure tax and Bank Secrecy Act violations to the scrutiny of the IRS and the ! + + —! +" Âœ ÂŁ -

8 ( & money laundering offenses. When coupled with willful U.S. Internal Revenue Code violations through the use of foreign juris < ongoing U.S. Department of Justice policy of not prosecuting U.S. income tax crimes could be eroded in the case of cross-border transactions. Stanley I. Foodman is CEO of Foodman CPAs & Advisors and a recognized forensic accountant and litigation support practitioner. Specializing in complex domestic and international tax matters, Foodman has served as an expert witness and forensic accountant for some of the

! */ economic crime cases. Foodman can be reached at 1201 Brickell Ave., Suite 610, Miami, FL 33131 (305) 365-1111 www.foodmanpa.com

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

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Guest Contributors

POST-SETTLEMENT FUNDING

WAITING FOR LEGAL FEE PAYMENTS IS NO LONGER REQUIRED By Joseph Genovesi

R

ecently, the judicial system has been subject to massive delays that have affected the entire legal system. Publications including the New York Times, National Law Journal, and others have reported on the ways in which delays have impacted citizens, attorneys, courts, and what these delays mean for society at large. Fund well past their scheduled time. Furthermore, reductions in court staffers have resulted in longer wait times for everything else. The longer people have to wait for justice, the more likely they are to lose faith in the system, and possibly give up their claims for compensation and justice in a court of law. Court delays and a whole other host of issues weaken the American vision of the average person being able to access justice through the court system. If this trend continues, the impact on our legal system will be enormous and may possibly lead to people becoming apathetic and doubtful of the ideals that are supposed to be imbedded within the judicial system. The legal lending industry was created to help ease the burden carried by attorneys, especially those who work on a contingency fee basis, who also suffer harsh consequences due to court delays. Contingency fee attorneys are especially hampered, if not damaged, by these delays because their entire business is built on obtaining quick results in court to ensure

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

Guest Contributors

payout. Contingency fee attorneys only get paid when their clients get paid, so they are constantly dealing with cash * 6 evaluate an attorney’s assets in a differ

%

who understand the business side of the assets of an attorney. 9

vanced funds if the attorney loses in trial %

% legal lending can be used in the different stages of a legal case. % ‘ >

is reached, usually receiving funding at ( ) 6 nancing is used when an attorney would receive funding to launch a lawsuit that + when an attorney receives funding only ) & ing is used when an attorney receives funding to litigate appeal cases. >

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the attorney’s unpaid legal fees associated with settled cases. > 6 for attorneys, especially those who operate on a contingency fee basis. Many of % < & % barratry have been debated, and precautions against those issues have been ' $

legal lending will continue to bring these

of the debate. But, as funding issues N

tion for contingency fee attorneys. Joseph Genovesi is president of RD Legal Funding based in Cresskill, New Jersey. He is in charge of managing the company’s portfolio and new business development. He oversees the origination, database and underwriting departments at RD Legal Funding. Genovesi can be reached at 45 Legion Dr. Cresskill, NJ 07626 (201) 568-9007 www.legalfunding.com

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

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Guest Contributors

ADOPTING A VALUE-BASED BILLING MODEL FOR BETTER CLIENT SERVICE AND ENHANCED PROFITABILITY By Andrew C. Hall

T

he lasting impact of the economic crisis over the past several years has left some of its effects on the tolerance for fees charged by our profession. When mergers and acquisitions became less frequent, demand for transactional lawyers declined. As real estate transactions all but stopped, many clients bypassed litigation, citing its discretionary nature and forced many attorneys to work outside their specialty area. As a consequence of that upheaval, our profession adapted the way we did business and marketed our services to remain The hourly rate had been historically the most widely used and straightforward method for legal billing. Over time, a “cycle of }

% N standard hourly rates, in turn setting an acceptable threshold for lawyers across the country. That trend produced a price model that resulted in exorbitant fees. This model ran counterintuitive $ & adopted a value-based billing model that provided incentives for level of risk if expectations were not met.

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

The practice of hourly billing had been the subject of scrutiny by clients and those within the profession for decades. Yet the economic crisis brought a new sense of urgency to the topic, leading some attorneys to devise acceptable alternatives. Client dissatisfaction with hourly billing still often results in uncertainty because the client is expected to pay for as many hours of lawyer’s time as necessary to complete the task. " & gressed and grew more complex, more lawyers were assigned to a case and fees began to spiral out of control. When the matter was resolved, clients often viewed their ultimate fee as incongruent with the services provided. When a client challenges fees, a standard response is that there is no way to predict how much time is required before a case takes shape. Another method for justifying fees is pointing to outputs created, such as memos that address legal issues relevant to the case. Because an attorney has limited tools available to quantify his/her work, these explanations may appear to be reasonable and appropriate measurements for fee determination. However, clients

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In the hourly rate billing process, our profession has overlooked a key ingredient in delivering professional services: value. We do so because we are afraid to (1) accept the risks involved in estimating fees at the inception of a client relationship; (2) seek appropriate incentives for results

ÂŚ —Â?Âœ even if the fee estimate was understated. To change course, the legal profession needs to review the billing process and adopt a new approach that addresses ) compensation. First and foremost, we must identify acquire if billing is structured on the basis of value. Any new lawyer thinking about starting his or her practice is sensitive to the amount of money that must be invested * > N yers understand this concept in the clearest %

and funds to carry their case from the initial client interview through settlement or trial, and perhaps through the appeal process. This would exceed a sum equal to 12 months of operating expenses or more. A similar reserve must also be created for cost advances. This capitalization is greater than the capital required to carry the traditional hourly rate practice, which operates on a 120-day cycle from the time that legal services are provided until billing and collection. There are a variety of value-based billing options available. Arguably, the simplest model has always been the contingent fee. However, that fee cannot be used in every situation. An alternate *

This has been the traditional method of payment in a criminal case. It applies equally well to real estate transactions, or any other matter where the lawyer has ) of service will be required. Advance pay * associated with other forms of billing, ) unforeseen problems arise. This risk can

N for unforeseeable contingencies. In instances where the client is unable

* can be paid in installments with additional premiums for an early resolution expectations. Similarly, the parties can and should consider termination premiums in the event that a client abandons N their lawyer’s strategy, opts to engage less-expensive counsel. Another value alternative is a nonrefundable retainer paid in advance, with additional payments due at agreed upon steps in the matter. For example, a complex real estate transaction could be broken into smaller component parts with incremental payments. One fee would be and additional fees would be paid for revisions, negotiations, and other tasks on

& charged for closing, and a result-oriented premium fee would be added if the closing is advanced. The “bottom line� should be clear. In other areas, whenever we contract for services, we always expect the provider to set a price and stick to it. Even in litigation, we can set agreed upon fees by event pricing that can be added together and reviewed for value. For example, a memorandum in support of a motion to dismiss should be predictable. That same memorandum can be “reused� to N N directed verdict. Obviously, new information will be available and require extra effort. While charges for this extra work should be included, the end price should * already paid for. Consequently, there is no reason why we cannot — or should not — charge for litigation in phases, with enhancements for moving the case faster or for delivering a better-thanexpected result. A shift to billing based on true value to the client will be well received by the

client and, when done correctly, can actually function to increase our fees. There will always be room for the hourly rate, but the time is at hand for alternatives that are creative and attractive to both lawyer and client alike. By tying payment to outcomes, rather than outputs, we can put ourselves in the best position to better service our clients and strengthen our Andrew C. Hall is the founder and managing partner of Hall, Lamb and Hall, &2 2 > ! *" ! / } !/ ~ / " 2 " at 2665 S. Bayshore Dr., PH 1 Miami, FL 33133 (305) 374-5030 2 !2 !

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

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Guest Contributors

MANAGING CASH FLOW FOR YOUR LAW PRACTICE By Dwight L. Hill

D

uring these uncertain economic times, just about * While unique in structure and mission, a law practice is, at its heart, a business venture like any other, and must concern itself with the very same operational 6 techniques for mounting a successful case, along with excellent analytical skills, but when it comes to the “tricks of the trade� for managing the business side of a law practice, there may be 9 * +!' ) * N a stellar courtroom record or a positive case-by-case disposi & | $

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

to generate billable hours each month, so why we are barely Â’} $ ( * * Â’ %

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* * $ Dwight Hill is executive vice president, Sabadell United Bank. Hill can be reached at 1111 Brickell Avenue, 30th Floor, Miami, FL 33131 (305) 812-7245 www.sabadellbank.com

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

35

Guest Contributors

WALL STREET AND THE FIRST AMENDMENT: IT’S NICE TO MEET YOU! By Jamie Z. Isani

W

hen bankers and First Amendment lawyers encounter each other at cocktail parties, they can In July 2010, President Obama signed into law the Dodd-Frank & = Z € United States Supreme Court issued Sorrell v. IMS Health, Inc., ?�? ( + ]›K� —]1??œ ! & *

$ Could the latter be used to attack the former? Give that some & to adapt to the new regime imposed by Dodd-Frank, they should consider that Sorrell makes the First Amendment a powerful tool * + ¢ &

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

";"$( %' % &%§ +6 [7§ In Sorrell, healthcare data mining companies and pharmaceutical manufacturers challenged the constitutionality of a Vermont law › Â? € 7 N state’s argument that the law’s restrictions on the sale, transfer, and use of information were nothing more than a regulation of had likened the sale of such information to a commodity such as | N } % | tion of information are speech within the meaning of the First & } |! } € 7 | point for much of the speech that is most essential to advance hu } ; *

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the court struck down the Vermont law under the traditional commercial speech test, which requires the government to show that the statute directly advances a substantial governmental interest and that the measure is drawn to achieve that interest. € 8 cautioning that the Vermont law was “in ) } N

|> $ 8 ) ! & challenges to many ordinary regulatory a commercial message,� and predicted

! ; 8 ! 5 Z & istration and other bureaucrats. His prediction already has come true. In the two years since Sorrell power already has started to show green. & Sorrell, ! &

— Justice Breyer predicted), United States v. Caronia š1� ! � ?@0 —] + ]1?]œ !Z& < carry graphic warnings, R.J. Reynolds Tobacco Co. v. FDA ›0› ! � ?]1K —Z + + ]1?]œ [6;8 employers to post pro-labor signs, Nat’l Ass’n of Mfrs. v. NLRB š?š ! � 0@š —Z + + ]1?�œ But can Sorrell actually be used to help me? I’m a banker, not a drug maker, tobacco pusher, or union buster. What’s the scoop on that? Well, it did not pass Justice Breyer’s ! ; 8 advertising, loan proposals, and interest

nancial institutions. That is not to say that a challenge to long-standing regulatory ; ¨ ZZ would be easy, but the government would need to show that the regulations directly advance important government interests. The government might have a more

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! $ ! & ment concerns because it introduces many that many say don’t make any sense at all. ! ( ") + —("+œ < | * minerals� to disclose whether they came Z ; + + nothing to promote peace and security in

Z;+ % N + Nat’l Ass’n of Mfrs. v. SEC + & [ ?� ›�K —;6#œ ]1?� #6 �–1�0?– —Z Z + € ]� ]1?�œ X ( + + and two business groups have appealed. You should keep a close eye on this. Energy companies also challenged

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rule on other grounds, Am. Petroleum Inst. v. SEC + & [ ?] ?››– —€Z8œ ]1?� #6 ��1š??@ —Z Z + € ] ]1?�œ N criticized the government’s arguments that the rule did not implicate speech. ' Z

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| 8 sessment, and reporting responsibilities + } ?] X ( + Š KK?]— Âœ —@œ—8œ— Âœ The bureau has not issued a rule or

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! & < to prove how demanding large amounts

& Sorrell makes abundantly clear, the government | direction.� # ( ! & N ’ Jamie Z. Isani is a partner in the First Amendment litigation group of Hunton & Williams LLP. She served as counsel to IMS Health Incorporated and other companies in the Supreme Court case Sorrell v. IMS Health Inc. Isani can be reached at 1111 Brickell Avenue, Suite 2500 Miami, FL 33131 (305) 810-2500 www.hunton.com This article presents the views of Jamie Z. Isani ( € & Williams or its clients, or the South Florida Legal Guide. The information presented is for general information and education purposes. No legal advice is intended to be conveyed; readers should consult with legal counsel with respect to any legal advice they require related to the subject matter of the article.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

37

Guest Contributors

HURDLES IN ACCESSING BANKING SERVICES “AS LONG AS THE BANK DOESN’T FIND OUT, YOU SHOULD BE SAFE.� By Andrew S. Ittleman

T

he federal Bank Fraud statute – 18 U.S.C. § 1344 – was designed to criminalize complex “schemes to defraudâ€? %

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Guest Contributors

been outright barred from doing business with them. For instance, the National Credit Union Administration (NCUA) recently barred the North Dade Community Development Federal Credit Union of Miami Gardens from doing further business with money services businesses (MSBs), a large class of businesses including money transmitters, check cashers, currency exchangers, providers of prepaid access, issuers of digital currency, and a variety of others. But the North Dade case was hardly unique. It happens often, and regulators rarely distinguish between compliant and non-compliant MSBs. Because money is the MSB’s inventory, the MSB has no way to operate without a bank account. So, knowing that banks will not do business with them, many MSBs have lied (or at least obfuscated the truth) during the account opening process and told the bank that they are engaged in “import/export,â€? “consulting,â€? or some other vague term which they believed the bank wouldn’t investigate. And in many cases the MSB was right – the bank did not perform a due diligence during the account opening process. But eventually the lie was revealed, the feds were called in, and the otherwise compliant MSB became the target in a § 1341 (fraud) investigation. Lack of access to banking is common for lawful businesses operating on the fringe. In one case, we represented an international seller of online pornography that was fully compliant with U.S. law, but

) ing bank accounts due to the nature of its business. So, before we were engaged, the company established a shell U.S. company and obtained an operating account for the shell at a small bank in the South. Soon after the account was opened, the bank realized the actual nature of the client’s business and called in the federal government. The client avoided criminal charges, but a fair amount of money was forfeited following the ensuing investigation. We have also seen this issue play out for casas de cambio operating in Argentina and Venezuela. Due to strenuous currency controls, those businesses desperately need access to U.S. dollars and U.S.

bank accounts. Knowing how unlikely it is that a U.S. bank will open an account for them, the casa de cambio will open a shell company in the U.S. and establish a bank account for the shell. In some cases, the casa de cambio will close the account before the bank catches on, but in other cases the lie is revealed and the criminal investigation ensues. State-sanctioned marijuana dispensaries are experiencing this issue today. Even though they are perfectly lawful under state law, the federal government deems them to be “high risk,� and banks are refusing to do business with them. In a recent Bloomberg article addressing the issue, an expert gave this advice: “As long

$ be safe.� It is easy to understand why this advice is so bad. Several members of Congress are currently sponsoring legislation designed to allow state-sanctioned dispensaries to obtain bank accounts, and

hopefully new laws will help dispensaries avoid the worst case scenario. While we recognize the critical importance of bank accounts, we urge people to be truthful and complete during the account opening process. There are legitimate ways around this problem, and no matter how valuable the account may be, it is nowhere near as valuable as your freedom. Andrew S. Ittleman is a founder and partner of Fuerst Ittleman David & Joseph, PL. He concentrates his practice in the areas of White Collar Criminal Defense, Anti-Money Laundering compliance, and Food and Drug Law. Ittleman litigates extensively against the United States government in civil and criminal matters. Ittleman can be reached at 1001 Brickell Bay Dr., 32nd Floor Miami, FL 33131 (305) 350-5690 www.fuerstlaw.com

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

39

Guest Contributors

HOW TO IMPROVE PARASAILING SAFETY THOUGH ECONOMIC DISINCENTIVES By John Elliott Leighton

I

t seems like every year, Florida is the scene of another parasailing tragedy. The Florida Legislature has been slow to act, despite organized efforts to bring attention to the issue. It may be time for a different approach: imposing a minimum insurance requirement on operators, thus creating stricter industry standards and making the industry safer overall. On July 1, 2013, two 17-year-old girls from Indiana were vacationing in Panama City Beach when the line from their parasail snapped in high winds. They slammed into a condominium building and hit a power line before landing on a parked car on the ground. As of late July, the girls, Sidney Renea Good and Alexis Fairchild were recovering slowly from their life-threatening injuries at Bay Medical Center in Panama City. Last August, Elizabeth Miskell and her husband Stephen decided to take a ride in a side-by-side parasail during their Florida vacation. Her harness malfunctioned and she fell 200 feet into the Atlantic Ocean off Pompano Beach, where the towboat operator * % 8 40

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

examiner ruled the cause of death was “asphyxia due to drowning and multiple blunt force injuries.’’ Since 1998, there have been 33 parasailing catastrophes in Florida, with six resulting in fatalities, according to a recent ABC News report. That deadly toll includes 15-year-old Amber White, who died in a heartbreaking 2007 parasailing accident that resulted in severe head trauma to her 17-year-old sister Crystal. !

and parasailing victims has urged the legislature to take action and regulate the state’s parasailing industry. The goal is to prevent further deaths and injuries through legislation, rather than strive to compensate victims and their families via litigation. Our efforts are supported by the Professional Association of Parasail Operators (PAPO), a responsible trade organization that recognizes the need for safe, reasonable precautions to create a safe experience. State Senator Gwen Margolis (D-Miami) has been leading the effort to enact the “Amber May White Act�, now known as the “White-Miskell Act.� The law would require the owners of

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vessels engaged in commercial parasailing to carry liability insurance, establish minimum standards for equipment, and prohibit parasailing under unsafe conditions. There would also be criminal penalties for violations of the act. That’s not a heavy burden for responsible parasailing operators to bear. This is particularly so in a state where the largest industry is resort tourism. There is no question that this type of regulation could save lives. An equipment inspection, for example, would have likely revealed the problems with Mrs. Miskell’s harness and prevented her death. Likewise in 2007 when Amber May White and her sister Crystal were parasailing off the same beach that took Mrs. Miskell’s life, such a regulation would likely have prevented the same tragedy. Passage of such minimum standards could also help the parasailing industry repair its badly tarnished image. Presently, no state or federal laws ing activities. The only requirements for operating a parasail business in Florida are a U.S. Coast Guard approval of a vessel and possession of a boating license. There is no state or federal agency responsible for verifying that the operator’s parasail, harness and tow lines are in good condition. Without regular inspections, an irresponsible operator can try to save money by using defective or worn-out equipment. In addition, there is no requirement for operators to stop offering rides during high winds, stormy seas or thunderstorms, or other adverse conditions – a step that might have saved the life of Amber May White. However, the Florida Legislature has been reluctant to impose even minimum safety regulations on parasail operators, despite the advocacy efforts of victims and families, as well as groups such as the PAPO. The concept of “regulating� any industry seems like it’s the third rail of Florida politics. Therefore, it may be time to take a different approach to making parasailing a safer activity and reducing the dangers to participants. That could be done through the passage of a single $1 million minimum insurance requirement for para-

sailing operators, as well as other water sport businesses. Certainly, a $1 million policy would help cover the costs of medical care to a seriously injured victim of a parasailing accident. But even more importantly, it would be necessary for operators to meet certain requirements for operation, equipment and training in order to be insured, and to consider factors such as halting operations during dangerous windy conditions. The private insurance sector can play a major role in helping to reduce Florida’s unconscionable toll of parasailing deaths and accidents, with or without eventual action by the Legislature. Safety advocates can publicize the need for operators to obtain a minimum $1 million insurance policy — and point out which businesses carry that coverage. Resorts can require that any operator who caters to their guests carry the required cover-

age and are members of PAPO. That information will help Florida residents and visitors make better decisions about parasailing operators — and it might help reduce the needless toll of tragedies in our state. Sometimes legislation is more important than litigation. John Elliott Leighton is managing partner of Leighton Law, P.A. based in Miami, Florida. Leighton litigates " individuals throughout Florida and the 3 2 / ( / on the part of the businesses or governmental entities sued. Leighton is often / "( ! !! 2 " ƒ„†ƒ 1 2 ‡†† > ! 88ƒ8ƒ ˆˆˆ' 8‡9*†††ƒ 2 2 !

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

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Guest Contributors

DIVORCE AT A REASONABLE COST THE FINANCIAL ASPECTS OF THE COLLABORATIVE PROCESS By Robert J. Merlin

P

erhaps you have heard of the Collaborative Process but you are not quite sure what it is and whether it is something you should consider for your practice. If you practice family law or you are a forensic accoun learn about the Collaborative Process. The Collaborative Process is an alternative dispute resolution method that was created in 1990. The concept is so successful that it is now practiced throughout the United States and in more than 20 countries around the world. Because the Collaborative > be limited to that area. % + > trained Collaborative attorney. Specially trained mental health Â? !

all of the Collaborative cases use one neutral facilitator for both ! <

The Collaborative professionals work together as a team to help the parties resolve all of the issues involved in their family

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

the negotiation of a prenuptial agreement or the negotiation of a The parties and the professionals sign a contract called a Participation Agreement that spells out the terms of the relationships between everyone. The Participation Agreement includes the following provisions: 3 % Q assets or income. All documents are shared and are exchanged voluntarily. There is no need for formal discovery requests. 3 % < 8 of the parties agree to maintain the status of all of their

consent of the parties. 3 % scheduled meetings with an agenda to identify all issues that issues and to help the parties formulate the best resolution % + N

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

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HOW THE GOVERNMENT WRONGFULLY FREEZES ASSETS UNITED STATES V. KALEY, 667 F.3D 1316 (11TH CIR. 2012), CERT. GRANTED, 133 S. CT. 1580 (2013)

By Jackie Perczek

T

he government often freezes assets in criminal cases as an offensive weapon, leaving the defendant without the means to retain private counsel who can challenge ! assets pre-trial destroys the defendant’s ability to fund a quality and meaningful defense and leaves the defendant without the resources to battle against the federal government and its law % insidious when the defendant is charged based on a theory of X ( ( + whether federal prosecutors in a white-collar case can freeze a defendant’s assets prior to trial when the defendant is indicted % < ) X ( According to the Department of Justice, once a defendant is indicted for a federal offense, assets tied to the charged conduct can be frozen without any further evidence or hearing prior to trial because the indictment itself establishes probable cause that a % $ jury is an independent body (rather than an arm of the government or the police) that stands between the accused and his accuser

Thus, the government contends, once an indictment is returned, the accused should have no opportunity to challenge it’s evidentiary basis to contest an order freezing his assets – even if the indictment is based on a theory of prosecution that is unequivo-

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

cally not a crime, and even if the freeze order leaves the defendant % $ & N edly does not stand between an innocent person and federal

tors stretch the mail and wire fraud statutes to freeze assets, seize 9 defendants have been indicted by a grand jury – supposedly the bulwark against oppression – and have served years in prison (for œ ( + 1 Yet prosecutors continue to overreach by using the grand jury to expand the white-collar criminal statutes

The grand jury is not a shield against prosecutorial abuses, and it is certainly not a measure of protection against theories % N a tool of the prosecutor, championed and romanticized by the Department of Justice precisely because the grand jury is captive  % N He determines what witnesses to call and what testimony to elicit documents produced pursuant to those subpoenas are delivered to N %

N # “independence� the grand jury has, it is certainly not independence to protect the defendant, since the defendant has virtually

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At the urging of the Department of Justice, the Supreme Court has held that a grand jury can indict based on inadmissible evidence, evidence obtained illegally, evidence obtained in violation of the right against compelled self-incrimination, evidence obtained in an illegal search and seizure, and evidence that is irrelevant, inadequate, or incompetent. An indictment obtained based exclusively on hearsay evidence is perfectly legitimate. The prosecutor does not have to call any victims, eyewitnesses, or anyone with personal knowledge of the matters under investigation. The witness can be a government agent who has no personal knowledge of the substance of his testimony or of the facts he is purportedly testifying about. The grand jury can indict based on tips and rumors; the law does not require that the evidence presented to the grand jury have any indicia of reliability. A person under investigation has no right to appear before the grand jury or testify on his own behalf. He has no right to offer evidence, present witnesses, or even show that he is innocent. Indeed, an indictment is valid even if the prosecutor chooses not to tell the grand jury about substantially exculpatory evidence in his possession or evidence that clearly negates guilt. No defense lawyer and no judge are present during grand jury proceedings. A judge makes no evidentiary rulings, does not decide what the correct law is, and makes no rulings on what legal instructions the grand jury should get. In fact, the prosecutor does not have to instruct the grand jury on the law or the elements of the crimes the grand jury ultimately indicts on. Finally, if one grand jury decides not to indict, the prosecutor can empanel a new grand jury (it only takes 23 people), make his presentation again, and seek an indictment from the new group. And if that does not work, he can try again with another grand jury. He does not need any compelling reason for doing this and need not seek approval from the court. Clearly, the grand jury is a tool of the prosecutor. He uses it to prepare his case for trial, to gather evidence and develop

witnesses, and, ultimately, to scare and intimidate defendants into plea bargaining. The prosecutor controls the entire grand jury proceedings. He answers all of the grand jury’s questions. He prepares the indictment and he decides what offenses to charge. He decides when the grand jury has heard enough evidence and when it is time for them to vote. Grand jurors simply sit through the testimony and then sign the indictment that the prosecutor has prepared. And, because grand jury proceedings are completely secret, the defendant is not entitled to transcripts or evidence of what transpired before the grand jury. The grand jury has no accountability to the defendant or even to the court. Everything that transpired before the grand jury will remain secret to everyone — except the prosecutor. That a grand jury has returned an indictment in a white-collar case offers no protection to defendants charged under questionable or plainly wrong theories of prosecution. This is particularly true when the government freezes assets before trial and the defendant is left without the

* prosecution. The government obviously < able white-collar cases, and to continue to expand the reach of criminal forfeiture statutes into areas that should remain purely civil or regulatory in nature. Under the government’s theory that an indictment

ditional evidence or hearing is necessary, a defendant charged with conduct that is not a crime would have to suffer the overwhelming toll of being arrested, prosecuted, and tried before he can challenge the order that freezes his assets and impedes $ overreaching. Due process and fundamental fairness require that at the very least, the government be called upon to offer evidence establishing that a crime was in fact committed before the government is allowed the extraordinary right of freezing the assets of a person who is presumed innocent and who has not been convicted of committing any crimes.

1.

Skilling v. United States, 130 S. Ct. 2896 (2010) (holding that government’s theory of prosecution under fraud statute not a crime); Cleveland v. United States, 531 U.S. 12 (2000) (same); McNally v. United States, 483 U.S. 350 (1987) (same). An excellent article on how the grand jury fails to protect the accused is Niki Kickes, The Useful, Dangerous Fiction Of Grand Jury Independence, 41 Am. Crim. L. Rev. 1 (2004). Note: Perczek’s partner, Howerd Srebnick, along with co-counsel Richard Strafer, represent the Kaleys and will be arguing the case before the U.S. Supreme Court this October.

Jackie Perczek is a partner at Black, Srebnick, Kornspan & Stumpf, P.A. Her practice focuses exclusively on the defense of criminal cases as co-counsel with Roy Black. In the 16 years she has been with Black, Perczek has defended a variety of massive white collar fraud cases, as well as cases involving banking, UBS-related cases, public corruption, bribery, extortion, gambling, telemarketing, prescription drugs, narcotics, immigration and employment offenses, and the Internet and sex crimes. Perczek can be reached at 201 S. Biscayne Blvd., Suite 1300 Miami, Florida 33131 (305) 371-6421 www.royblack.com

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

45

Professional Profiles STEVEN D. BERLIN

CHRISTOPHER M. DAVID

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

Professional Profiles MICHAEL DIAZ, JR.

STANLEY I. FOODMAN

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

47

Professional Profiles ADAM J. LAMB

JOHN ELLIOT LEIGHTON

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

John Elliott Leighton is the founding partner of Leighton 6 > & N individuals who have been seriously injured or have lost loved & trial lawyer, Leighton has 26 years of experience in litigating and trying catastrophic injury and death cases in state and federal courts. He has litigated and tried complex cases throughout Florida and in Illinois, North Carolina, Wisconsin, Georgia, Texas, Indiana and New York. He is chairman of The Academy of Trial Advocacy and the Inadequate Security Litigation Group of the American Association for Justice, and serves on the Executive Committee of the Board of Trustees of the National College of Advocacy. He is listed in The Best Lawyers in America, Florida Super Lawyers, Florida Trend’s Legal Elite, and South Florida Legal Guide’s “Top Lawyers.� He is rated AV by Martindale-Hubbell and 10/10.0 (“superb�) by AVVO.com. He is the author of “Litigating Premises Security Cases� (West, 2006).

SARA MORAN-SAM

PIERRE A. SALIBA

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48

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2013

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Pierre A. Saliba provides international and domestic tax, forensic accounting, litigation support and advisory services to clients in a broad range of industries including healthcare (Medicare and Medicaid fraud and regulatory compliance), clients with domestic and international corporate and personal taxation services, due diligence and evidence retrieval. He also & manager, Saliba also leads Foodman’s focus on client service. He brings prior experience as a cost accountant, controller and production manager in the garment industry, both in the U.S. and internationally. Fluent in French, Creole and Spanish, he serves as president of the Haitian American Chamber of Commerce. Saliba is also an active member of other Miami civic and charitable organizations, devoting both time and resources to helping those in need.

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