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YOUR GUIDE T O L AW, A CCOUN T ING & F IN A N CE
IBERIABANK: The Financial Institution Dedicated to Serving Professionals
Also: Minimize the Chances of Criminal Prosecution Drafting Better Arbitration Clauses Real Estate Trends to Consider
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And Then What? We take the “ice bucket challenge” and drench ourselves with cold water to raise awareness of ALS.
AND THEN WHAT? We lament the mass shootings that take so many lives.
AND THEN WHAT? AND THEN WHAT? We wrap ourselves in the flags of France, Great Britain, Spain, Belgium, Germany and Turkey, and paint our faces with their country’s colors after every terrorist attack. AND THEN WHAT? We post our opinions on social media and write letters to the editor. AND THEN WHAT? We hashtag on Twitter. AND THEN WHAT? We hold rallies and march for our causes.
It seems to me we are so emotionally worn out after we drench and wrap and post and march and mourn that we have no energy left to do something about these important issues. But we must always remember that we live in a democracy where we have the power to vote on a local, state and national level. We can run for office ourselves. We can organize a political action committee and raise funds for candidates who share our beliefs. We can volunteer to serve on the board of a community or civic organization. All these are ways we can answer the question: “And then what?”
As a publisher, I have an opportunity to raise this vital question with our readers. But I cannot give you the answer. In fact, I am still asking myself, “And then what?” We must find our own way to take action in a way that helps our community, our state and our country move forward and not continue to assume that a single “feel good social act” will even start to fix the situation. I encourage you to do so!
JACOB SAFDEYE
Jacob Safdeye Publisher
We must find our own way to take action in a way that helps our community, our state and our country move forward and not continue to assume that a single “feel good social act” will even start to fix the situation. I encourage you to do so!
PUBLISHER JACOB SAFDEYE jacob@sflegalguide.com EDITOR IN CHIEF RICHARD WESTLUND editor@sflegalguide.com GUEST CONTRIBUTORS STANLEY I. FOODMAN ADAM S. HALL MEY-LING PEREZ PHOTOGRAPHY BY HARVEY BILT SOUTH FLORIDA LEGAL GUIDE - BM Volume 1, Number 7, 2017 This is an independent supplement by South Florida Legal Guide Mailing address P.O. Box 630428, Miami, FL 33163. All rights reserved. All titles registered and may not be used without permission. Reproduction in whole or in part of any text, photograph or illustration without written permission of the publisher is strictly prohibited. The South Florida Legal Guide makes no guarantee regarding the accuracy of information presented, results reported, or safety of products or activities described herein. The publisher notifies readers that the hiring of a professional is an important decision that should not be based solely on advertisements. Before you decide, ask the professional to send you free written information about qualifications and experience. Contact: info@sflegalguide.com or call: (786) 879-7638 • www.sflegalguide.com
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[ WEALTH MANAGEMENT CORNER ]
From Your Trusted Advisor: Real Estate Trends to Consider BY MEY-LING PEREZ
The real estate market has been a hot topic of discussion since the financial crisis in 2008. Now, almost ten years later, significant speculation on the future remains. This article aims to outline general real state trends in Miami-Dade, while also touching upon some macro-economic factors that can affect borrowers. The goal is not to provide an opinion on timing of this complex real estate market, but instead bring awareness to future home buyers. Despite the many theories
on the next cycle, a few facts cannot be denied regarding our market: • Since 1950, Miami-Dade County’s population has grown from 500,000 residents to over 2.6 million, of which more than 51% were born abroad. • For many years, influx of foreign wealth has been a key factor driving up property values in Miami. • Miami’s year-round pleasant weather, combined with its growing entertainment and hospitality industries, continue to place
Miami as a very desirable destination. This is not only true for foreigners wishing to obtain a second home, but also for retirees and business owners from other U.S cities where real estate prices have nearly reached prohibitive levels. During 2017, we have seen neighborhoods such as Miami Beach, Brickell, Coral Gables and Doral continue to report increased sales despite growing inventory levels in some asset classes (primarily condos). An asset class with significant demand has
been single-family homes at mid-range prices (between $300,000-$850,000). These properties have experienced price growth on average of approximately of 6%. Conversely, there have been slowdowns in the luxury market for homes/condos over $1 million, wherein sales are reported to be flat, or with single digit declines during certain months of the year. On the investment side, cities with strong rental markets such as Hialeah have caught the attention of private equity groups and
[ INTERNATIONAL TAX COMPLIANCE ]
Do You Know How to Minimize the Chances of Criminal Prosecution If You Are Willfully Out of U.S. International Compliance? BY STANLEY I. FOODMAN
STANLEY I. FOODMAN The Offshore Voluntary Disclosure Program (OVDP) is a partial tax amnesty program whereby IRS permits noncompliant taxpayers to disclose willfully unreported offshore accounts, entities and related income. Taxpayers who do not submit an OVDP filing run the risk of detection by the IRS and the imposition of substantial penalties,
including the fraud penalty, foreign information return penalties, and an increased risk of criminal prosecution. The “key” word for OVDP is willful. Unlike the Streamlined Filing Compliance Procedures program, which is intended for taxpayers that have acted non-willfully, OVDP enables willfully non-compliant taxpayers to resolve tax liabilities and minimize
chances of criminal prosecution. OVDP requires taxpayers to cooperate with IRS and Department of Justice offshore enforcement efforts, through providing information about financial institutions and other facilitators who helped the taxpayer establish or maintain an offshore arrangement. Here is what a taxpayer making an Offshore Volun-
tary Disclosure is minimally required to do: 1. Pre-clearance: The Pre-Clearance Process is optional to the taxpayer. If the taxpayer chooses Pre-Clearance, then the taxpayer or taxpayer’s representative may fax a letter containing certain information to IRS Criminal Investigation. 2. Voluntary Disclosure Letter: If the taxpayer
foreign buyers. This high demand, in turn, continues to drive prices upward. Prices for apartment units in Hialeah under 1000 sq ft. have exceeded 2007 levels. For those currently exploring financing alternatives, it is important to keep in mind that the Federal Reserve may raise interest rates one more time before year end. Its projected forecast also includes three possible additional increases in 2018, followed by two possible subsequent hikes in 2019. In the meantime, the Federal Reserve will con-
chooses the Pre-Clearance process, and receives a Pre-Clearance Notification, then the taxpayer has 45 days from the date of the notification to submit the Offshore Voluntary Disclosure letter and required attachment. Note that the taxpayer may bypass the Pre-Clearance process, and mail the Offshore Voluntary Disclosure letter and attachment directly to IRS Criminal Investigation. Upon receipt, IRS reviews the letter and the attachment and proceeds to notify the taxpayer (and the representative) by fax whether the voluntary disclosure has been preliminarily accepted or declined. 3. Complete the Voluntary Disclosure Package: If the voluntary disclosure is
MEY-LING PEREZ tinue to reassess inflation, which has remained below 2% for some time now. Low interest rates have provided buyers with increased purchasing power since the last market crash, thus increasing demand for real estate. Rising interest rates will likely negatively impact purchasing power. The great quandary is
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preliminarily accepted, then the taxpayer has a prescribed number of days to mail in the full voluntary disclosure package to the IRS. IRS continues with its quest to identify those taxpayers with undisclosed foreign accounts. The process of identifying non-compliant Taxpayers has become easier for IRS. IRS is able to obtain taxpayer information through tax treaties, whistleblower programs and FATCA. It is important for out-of-compliance taxpayers to take action now as the era of tax transparency is here to stay. IRS may, at its sole discretion, increase penalties or limit eligibility for participating in the program for all or some taxpayers or
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IBERIABANK: THE FINANCIAL INSTITUTION DEDICATED TO SERVING PROFESSIONALS While IBERIABANK is a new name in South Florida’s financial market, its leadership team has a long history of serving the region’s business and professional community. “This is an exciting time for us,” said Mario Trueba, regional president, South Florida. “We are building a new banking brand based on our DNA of providing a full suite of personalized financial services to the South Florida professional community.” Based in New Orleans, IBERIABANK acquired Sabadell United Bank, N.A. on July 31, and brought over its key leaders, including Sabadell’s CEO Trueba, and chairman Fernando Perez-Hickman, who is now vice chairman and director of corporate strategy. "We have welcomed the associates of Sabadell United to our organization,” he said. “As a growing, market-centric bank, we understand the importance of decision-making by our local and regional leadership.” Orlando Roche, market president, Miami-Dade County, says IBERIABANK’s team has in-depth knowledge of South Florida’s unique domestic and international market dynamics. “We focus on providing our clients with the right financial products and services, building lasting relationships as a trusted advisor.”
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A U.S.-BASED REGIONAL BANK In South Florida, the banking institution has grown steadily since 1978 as United National Bank, Mellon United Bank, and Sabadell United Bank. “We have evolved over the past 39 years from a small community bank to being part of a major regional bank,” said Dwight Hill, market president Florida Keys. “What hasn’t changed is our commitment to serving attorneys, accountants and their firms with the same high level of service.” IBERIABANK was founded in New Iberia, Louisiana, nearly 130 years ago. Since 2000, its parent company, IBERIABANK Corporation, has grown rapidly throughout the Southeastern U.S. Today, IBERIABANK has more than $30 billion in assets, including $5.7 billion from Sabadell United, with a footprint that includes 216 bank branch offices in Florida, Louisiana, Arkansas, Tennessee, Alabama, Texas, Georgia, and South Carolina. “IBERIABANK has a larger capital base and footprint, thereby increasing our capacity to lend and finance commercial real estate transactions and other large deals,” said Trueba. In Florida, the bank has 35 offices from Jupiter to Key West, as
DWIGHT HILL, MARIO TRUEBA AND ORLANDO ROCHE well as offices in Jacksonville, Orlando, Tampa and the southwest coast of the State. In October, IBERIABANK announced plans to acquire Gibraltar Private Bank & Trust Co. of Coral Gables in a transaction expected to be completed in the first quarter 2018. “We believe Gibraltar will complement our position in Southeast Florida, enhancing our capabilities to serve clients in private banking,
residential lending and wealth management,” said Daryl G. Byrd, president and CEO of IBERIABANK Corporation.
SERVING ATTORNEYS AND LAW FIRMS From new associates to retiring senior partners, IBERIABANK’s team understands the life cycle of attorneys and law firms. “We have long been known as the lawyer’s bank, and we will continue
DEBRA VASILOPOULOS
to support South Florida’s professional community,” said Debra Vasilopoulos, market president for Palm Beach and Broward. “Our full-service approach extends from cash management solutions to working capital to real estate purchases to managing their personal wealth.” Hill adds that many law firms today are investing in mobile and online technologies, including electronic bill payments. “Many Millennials like to do everything from their mobile devices, and law firms need to stay current with their clients,” he said. “However, technology doesn’t replace the need for attorneys to know how to build strong relationships with their clients.” That ability to combine technology with personalized service is one of the reasons for IBERIABANK’s success through the years. “We offer a one-stop shop for both personal and professional financial services,” said Roche.
“Many of our clients have dealt with the same bankers for years.” Through the years, IBERIABANK’s team has helped many law firms upsize or downsize their operations, added Hill. “We have advised young attorneys and put the financing in place for them to start their own firms,” he said. “We understand you can’t do that from your mobile phone and enjoy meeting them face-to-face to better understand their goals.” The bank’s team has also assisted law firms with mergers and acquisitions, and advised senior partners on succession planning. “Once an attorney or accountant achieves financial success, we offer professional investment and wealth management services. ” Hill said. “Our pending acquisition of Gibraltar Private Bank will add more capacity to that aspect of our service.”
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Sexual Harassment: Advice for Employers and Employees Editor’s Note: With sexual harassment cases making headlines on a daily basis, South Florida Legal Guide contacted several leading attorneys for their perspectives on this important issue. Please note that their comments are general in nature and not intended to provide legal advice.
MARC SEITLES WHEN DOES SEXUAL HARASSMENT BECOME A CRIME?
images of another without the person's consent. In Florida, the vast majority of sexual harassment cases are civil matters. However, if the situation escalates into assault and battery or rape, then it becomes a criminal case. Employers must educate their employees of the seriousness of sexual harassment, and the potential consequences both civilly and criminally. In particular, they should avoid unwanted physical contact or threats that make other workers afraid of assault. Having a clear policy, making sure employees understand the policy and enforcing the policy are important steps for South Florida employers. Marc Seitles is a partner at Seitles & Litwin, P.A. who focuses his practice on criminal defense matters.
By Marc Seitles Most people think of sexual harassment as unwanted advances to another that create a hostile work environment. The normal recourse is reporting the incident to your supervisor or to human resources. Sexual harassment can become a crime when an unwanted advance becomes intentional, offensive physical contact or a threat of physical contact. In some states sexual harassment can also become a crime if the conduct is deemed to be stalking, or involves the sending of sexual
DONNA BALLMAN WHAT SHOULD EMPLOYEES DO? By Donna Ballman If you’re offered a job, promotion or favors if you submit to sexual favors or
are threatened that you’ll be demoted, fired or disciplined if you don’t; if the harasser is making comments about your gender or sexual comments; if they’re treating people of your gender differently than the opposite sex or treating you differently, that’s sexual harassment. Watch carefully and take good notes of comments directed to you and others. Include date, time, place and any witnesses. If it’s just you, then still document it. Don’t worry if there are no witnesses. If there are documents like text messages, emails, cards, notes or other inappropriate items, keep the originals or copies. You can take screenshots of anything you can’t print out, and then print the screenshot. Keep notes and any evidence in a purse or briefcase or write them on your home computer. If you’re fired, you’ll be prevented from taking your notes from work and they may be gone forever. You’re supposed to give the employer a chance to correct the situation (the exception being if it affects you in the wallet, such as firing, refusal to hire, demotion, denial of a promotion, etc.). Make sure you’ve followed the company sexual harassment policy, if there is one, and reported your concern to the correct person. I suggest reporting it in writing. If you’ve only reported it verbally, follow up in writing. Don’t tiptoe around the words “gender-based
harassment” or “sexual harassment.” If you report bullying or unfair treatment, you aren’t legally protected against retaliation, but reporting sexual harassment is legally protected. You may want to talk to an employee-side employment attorney before you do this, but it’s not required. The employer is liable for the actions of a supervisor if that person takes tangible employment action. It includes failing to hire, denial of a promotion, firing, demotion, etc. Otherwise, if the company has a publicized sexual harassment policy, the company is only liable if the employee reports the harassment or the company is otherwise aware of the harassment (such as with the Weinstein case) and fails to take prompt action to correct the situation. These cases are tough if there is no physical evidence. Your credibility is key, so the better your notes are, the better off you will be. Don’t miss your filing deadline. In Florida, you have 300 days from the date of the harassment to file a charge of discrimination with EEOC, and 365 days to file with the Florida Commission on Human Relations. If you file with one you’re automatically filed with both. I definitely suggest talking to an employee-side employment lawyer when in doubt about your rights. Donna Ballman practices employee-side employment law at Donna Ballman, P.A. in Fort Lauderdale.
RICHARD TUSCHMAN WHAT ARE THE RIGHT STEPS FOR EMPLOYERS AND EMPLOYEES? By Richard Tuschman Employers should have a written policy that defines and prohibits sexual harassment and contains an effective complaint procedure. Employers should also train their employees to prevent sexual harassment, and lead by example. Training can include watching off-theshelf videos or attending in-person training. Leading by example means making sexually charged conduct in the workplace unacceptable. And by “workplace,” I mean any place where employees congregate, including off-site meetings, office parties, and trade shows. From a legal standpoint, employees who believe they are being harassed must use the complaint procedure contained in the employer’s policy. If the employee fails to complain and later files a sexual harassment claim, the
employer may not be held liable, at least where there has been no adverse job action such as a termination or demotion. But the practical reality is that an employee who complains about being sexual harassed may be putting his or her career in jeopardy. Retaliation in this context is illegal, but it happens, and victims of sexual harassment should consider the possibility of adverse consequences if they file a formal complaint. When I consult with employees who are being sexually harassed, I explain both the legal landscape and the practical realities. If they want to make a formal complaint, I don’t discourage that. But they need to know of the possible fallout to make an informed decision. An employer must investigate and take prompt remedial action against the harasser if the facts warrant it. But that’s easier said than done. An employer must ensure the investigator is properly trained to conduct an investigation and is not biased in favor of the accused. There’s a tendency for companies to fault the complainant, especially when the accused is a high-level executive. Investigators must resist that tendency and get to the truth. Separating the complainant and the accused is often necessary while the investigation is pending. But employers must not retaliate against the complainant with a transfer to a lesser position. On the other hand, unless the accused
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Sexual Harassment: Advice for Employers and Employees • CONTINUED FROM PAGE 5 has an employment contract, his legal rights are usually quite limited. An employer does not need proof beyond a reasonable doubt to take action against a suspected sexual harasser. Even if the results of the investigation are inconclusive, the employer can take action against the accused to mitigate its risk. Richard D. Tuschman is a board-certified labor and employment attorney at Richard D. Tuschman P.A. in Plantation. WHAT ABOUT CONFIDENTIALITY CLAUSES IN SEXUAL HARASSMENT SETTLEMENTS? By April Boyer and Mallory Cooney As has been revealed in recent weeks, Harvey Weinstein (among others) settled outofcourt with his accusers, but the accusers were prohibited from discussing the settlements publicly due to confidentiality provisions in the settlement agreements.
APRIL BOYER
MALLORY COONEY
This revelation has been the catalyst for a debate over the appropriateness of confidentiality clauses in employment settlement agreements, and it has prompted some lawmakers to propose making confidentiality clauses illegal where the claims involve sexual harassment. For those who oppose confidentiality clauses, the prevailing reason is the assumption that the clauses are being used to hide wrongful or guilty conduct. However, a party’s guilt is rarely the reason for entering into a settlement or including a confidentiality clause. To the contrary, the majority of settlement agreements are
entered into without either side conceding liability and with both sides believing they could win at trial. In employment lawsuits, employers choose to settle cases for a variety of reasons — most of which have nothing to do with the merits of the accusations. A few examples include: • The cost to litigate a case is higher than the cost of a settlement. • Defense of a lawsuit causes business interruption. • Employee morale is harmed by the distraction of a lawsuit. • A lawsuit can harm the reputation of a company. • The employer believes in
the innocence of the accused, but it also realizes proving the innocence can be difficult. When these types of factors are the driving force behind a settlement, an employer often adds a confidentiality clause to a settlement agreement to ensure that the employee cannot suggest that the settlement payment is an admission of liability. Employers are often concerned about the ripple effect a settlement can have. In particular, employers worry about the encouragement of false “me too” accusations that can occur if employees suspect that the employer is willing to pay to settle a claim. They also worry about the publicity, rumors, and erroneous speculation that can quickly spread through social media and the Internet. Despite there being well-established, legitimate reasons for including confidentiality clauses in settlement agreements, lawmakers in New York, California, and New Jersey are attempting to make confidentiality agreements illegal. In New York, a bill is pending that would invalidate any clause in employment contracts (including arbitration provisions) that
would require confidentiality on the part of employees complaining of misconduct. As a result of the Weinstein scandal, the bill was amended to make null and void any provision that had the effect of concealing claims of harassment as well as claims of other labor violations, including discrimination, retaliation, and non-payment of wages. In California, lawmakers are now drafting a bill to prohibit confidentiality clauses in all civil suits concerning sexual harassment, sexual assault, and sexual discrimination, as well as other workplace harassment. Similar legislation is being considered in New Jersey, and lawmakers in other states may soon follow this trend. Finally, some academics are suggesting that sunshine laws, such as the one that exists in Florida, could be used to force the revelation of repeat offenders, such as Weinstein, where the repeat conduct constitutes a public hazard. If these laws pass, they may have a chilling effect on employers’ willingness to settle claims before trial. Many employers may prefer to have a jury find the employer not liable than
appear to be conceding liability by settling a lawsuit or inviting other employees to threaten a lawsuit. It also may have a chilling effect on employees/victims coming forward and making accusations. Sometimes the employee wants the confidentiality agreement in place so that his/ her reason for bringing the claim is kept confidential, or so that future employers are not aware of the threatened litigation against a prior employer. Settlement agreements are negotiated legal instruments. If two parties agree that a settlement should be kept confidential, the parties should be free to reach this agreement. No one is forced to enter into a settlement agreement. If an employee does not want a confidentiality clause, he/she can say no. Sometimes, an employer will agree to exclude it. Other times, the parties will go to trial to have a third party decide who is right and who is wrong. April Boyer is a partner and Mallory Cooney is an associate in K&L Gates’ Miami office, where they counsel and represent employers in the firm’s Labor, Employment & Workplace Safety practice.
IBERIABANK: The Financial Institution Dedicated to Serving Professionals • CONTINUED FROM PAGE 4
A FULL-SERVICE APPROACH Today, IBERIABANK Corporation offers a comprehensive array of transactional, lending, private banking, consumer, small business, wealth and trust management, retail brokerage, and mortgage services. “Many attorneys and
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accountants refer their clients to IBERIABANK for sophisticated financial needs, private banking services, and residential banking services that have also become an increasingly important part of our offering”” said Trueba. The bank’s full-service approach includes expertise in SBA loans for smaller businesses, as well as residen-
tial mortgages – including “jumbo loans – and financing programs for yachts and private aircraft, said Vasilopoulos. “Our private client services focus on the needs of successful professionals, business owners and highnet-worth individuals and families,” she said. IBERIABANK also has extensive experience with trust
accounts and escrow services – an important consideration for plaintiff’s personal injury attorneys as well as professionals serving clients in the real estate market. For instance, the bank is currently assisting several South Florida condominium associations that have escrowed their insurance proceeds in order to repair damage from
Hurricane Irma. IBERIABANK is also addressing the challenges and opportunities created by advances in technology. “We are very mindful of cybersecurity and taking steps to protect our institution and our clients,” said Vasilopoulos.
COMMITMENT TO COMMUNITY Along with delivering excep-
tional service to clients, IBERIABANK is deeply committed to serving the community. “We live here and work here and want to see South Florida prosper,” said Trueba. “IBERIABANK shares those values, and as part of a dynamic, fast-growing regional bank, we can now be an even better partner for civic and community organizations in the future.”
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ANDREW ELLENBERG
MICHAEL S. KRIDEL
MEDICAL MALPRACTICE, PERSONAL INJURY
LITIGATION AND VALUATION SERVICES, FORENSIC ACCOUNTING
NEEDLE & ELLENBERG, P.A. 1401 BRICKELL AVE., SUITE 900 MIAMI, FL 33131 305-530-0000 AELLENBERG@NEEDLEELLENBERG.COM WWW.NEEDLEENBERG.COM
Andrew Ellenberg represents individuals and families who have suffered catastrophic loss as a result of medical negligence, defective products, auto and aviation accidents, and the abuse or neglect of vulnerable adults and the elderly. Mr. Ellenberg is AV-rated by Martindale-Hubbell, the highest rating for legal ability and ethics. He has been selected for inclusion in The Best Lawyers in America©, from 2009–2018, has been selected by Florida Trend magazine as one of Florida’s Legal Elite and Florida Super Lawyers, all for his representation of plaintiffs in personal injury and medical malpractice cases. Mr. Ellenberg has been named a South Florida Business Leader “Power Player”, is rated “10-Superb” for medical malpractice by Avvo, has been included in every edition of the South Florida Legal Guide “Top Lawyers” list and also named in Florida Monthly’s “Best Legal Eagles,”.
REHMANN ROBSON 7805 NW BEACON SQUARE BLVD., SUITE 201 BOCA RATON, FL 33487 561-912-2300 MICHAEL.KRIDEL@REHMANN.COM WWW.REHMANN.COM
Michael Kridel is a Principal in the Boca Raton office of Rehmann Robson, a professional services firm with 21 offices, four of which are in Florida. He is the litigation services practice leader and has practiced public accounting in South Florida since 1974. Mr. Kridel was one of the first CPAs to achieve both the Certified in Financial Forensics (CFF) and Certified Information Technology Professional (CITP) designations offered by the AICPA. He provides litigation and expert testimony services in a broad range of matters including family law, business interruption/disaster associated damages, financial damages, fraud investigations, tax matters and accountant malpractice defense. Additionally, he is an award-winning lecturer for numerous professional organizations and universities.
ANDREW NEEDLE
HARRY A. PAYTON
MEDICAL MALPRACTICE, PERSONAL INJURY
LITIGATION
NEEDLE & ELLENBERG, P.A.
PAYTON & ASSOCIATES, LLC
1401 BRICKELL AVE., SUITE 900 MIAMI, FL 33131 305-530-0000 ANEEDLE@NEEDLEELLENBERG.COM WWW.NEEDLEENBERG.COM
2 S. BISCAYNE BLVD. SUITE 2300 MIAMI, FL 33131 305-372-3500 PAYTON@PAYTON-LAW.COM WWW.PAYTON-LAW.COM
Florida Bar Board certified in civil trial law, following graduation from Cornell and the University of Miami, Andrew Needle began practicing with one of the premier injury and malpractice firms in Florida. Distinguished both in and out of the courtroom as a lawyer, author, and lecturer, Needle is the author of “Post-Trial Motions” Florida Civil Trial Practice, Chapter 18, Eleventh Edition, as well as Representing Plaintiffs in Medical Malpractice Cases “Current Challenges in Handling Medical Malpractice Actions: Statutory Protections, Expenses, and Societal Misconceptions”, 2012. Named one of South Florida’s Top Lawyers in medical malpractice by the South Florida Legal Guide since its inception, and selected as a “Heavy Hitter” in healthcare law by the South Florida Business Journal in 2006, Needle has been included in Best Lawyers in America® since 2007 in Medical Malpractice and Personal Injury.
Harry A. Payton, managing member of Payton & Associates LLC, is board certified by The Florida Bar as a specialist in civil trial and business litigation. Payton represents domestic and international corporations and high net worth individuals in complex business litigation matters involving commercial real estate, commercial foreclosures; lender liability; corporate, shareholder and partnership disputes; litigation involving fine art; intra-family business disputes; probate, will and trust litigation; and professional malpractice cases for plaintiff and defendant involving attorneys, accountants, architects and engineers. Payton was appointed to the Supreme Court of Florida’s Committee on Professionalism for the 11th Judicial Circuit, and chairs the mentoring program subcommittee. Payton is AV rated by Martindale-Hubbell and receives consistent recognition as a Top Lawyer in Complex Commercial Litigation and Real Estate Litigation in the South Florida Legal Guide and Florida Super Lawyers®.
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From Your Trusted Advisor: Real Estate Trends to Consider • CONTINUED FROM PAGE 3 that we will continue to see demand for real estate in this market given a growing Millennial population, continued injection of foreign capital, and the geographical appeal of Miami. The growth in supply, however, is not necessarily linear, nor does it coincide with demand. For example, Miami lacks enough affordable housing and currently has an overflow of luxury condo developments. During this same time period, interest rates have increased. This means that once you are ready to explore the purchase of real estate, it is critical to seek proper guidance on the market and to align your needs with a suitable financing structure. Mey-Ling Perez is Senior Vice President, Private Banking & Wealth Management at IBERIABANK. She can be reached at 305-376-2469, extension: 68187 and Mey-ling.Perez@IberiaBank.com.
Minimizing the Chances of Criminal Prosecution If You Are Willfully Out of U.S. International Compliance • CONTINUED FROM PAGE 3 defined classes of taxpayers. IRS can also decide to end the program entirely at any time. Taxpayers should not be victims of their own making, and ought to consult their tax specialists to ensure that the complicated process of voluntary disclosure is conducted efficiently and effectively. Foodman CPAs and Advisors, 1201 Brickell Avenue, Suite 610, Miami, FL 33131, (305) 365-1111, www.foodmanpa.com, info@foodmanpa.com.
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Drafting Better Arbitration Clauses BY ADAM S. HALL
Arbitration can be an efficient, economical way to resolve disputes. As an alternative dispute resolution procedure, arbitration must be agreed to in the contract between the parties. Yet, the arbitration provision itself is often given little thought. Often a single sentence, a typical arbitration provision merely states that the parties agree to resolve any disputes relating to their agreement by way of binding arbitration. Sometimes, the provision goes a bit further, stating that the arbitration shall occur before the American Arbitration Association (or another alternative dispute resolution forum) pursuant to the rules of that forum.
Arbitration provisions can be much better. With some thought in the drafting process, the intended benefits of arbitration can be increased exponentially. • Speed – Arbitration is oft touted as a better forum for dispute resolution than a court proceeding due to its speed. The American Bar Association reports that a typical arbitration is completed in 7.3 months.l FINRA (which governs securities disputes) reports that securities disputes are typically resolved in 14 – 18 months.² In many kinds of disputes, this is simply too long. Through the drafting process, otherwise avoidable delays can be eliminated. For
arbitration is reduced discovery expenses. Through better drafting, discovery expenses can be even further reduced. Discovery can be streamlined or eliminated though a mandatory disclosure process drafted into the arbitration provision requiring turnover of pre-determined categories of information and the identification of witnesses. If one fears elimination of a discovery process, reasonable provisions can be drafted to limit the extent of permissible discovery, particularly in the context of electronically stored information which can overwhelm and eliminate all other economic efficiencies of arbitration. • Finality of Result –
Appellate review of arbitration is extremely limited. For example, an arbitrator’s erroneous interpretation of law is not typically reversible on appeal unless the appellate court found a clear or manifest disregard of the law.³ In an effort to avoid this type of otherwise unreviewable error, the arbitration provision can be drafted to require that the arbitrator follow the law. 1 – ABA Section of Dispute Resolution, "Benefits of Arbitration for Commercial Disputes.” 2 – Mini-Survey – Average Turnaround Time and hearing Duration, Securities Arbitration Commentator, December 14, 2014. 3 – Montes v. Shearson Lehman
ADAM S. HALL Bros., Inc., 128 F.3d 1456, 1460 (11th Cir. 1997).
Adam S. Hall is a partner at Hall, Lamb, Hall and Leto, P.A. Hall handles matters involving complex corporate and business litigation. Hall can be reached at 305-374-5030 and www.hlhlawfirm.com.
PABLO S. QUESADA
ROLAND SANCHEZ-MEDINA, JR.
ROBERT THORNBURG
CORPORATE AND BUSINESS, SECURITIES
CORPORATE AND BUSINESS, SECURITIES
INTELLECTUAL PROPERTY
SMGQ LAW
SMGQ LAW
ALLEN, DYER, DOPPELT + GILCHRIST, P.A.
201 ALHAMBRA CIRCLE, SUITE 1205 CORAL GABLES, FL 33134 305-377-1000 PQUESADA@SMGQLAW.COM WWW.SMGQLAW.COM
201 ALHAMBRA CIRCLE, SUITE 1205 CORAL GABLES, FL 33134 305-377-1000 ROLAND@SMGQLAW.COM WWW.SMGQLAW.COM
1221 BRICKELL AVE., SUITE 2400 MIAMI, FL 33131 305-374-8303 RTHORNBURG@ALLENDYER.COM WWW.ALLENDYER.COM
Pablo S. Quesada, a founding partner of SMGQ Law, is a corporate, securities and real estate attorney, handling both domestic and international transactions, and also assisting with corporate and stockholder disputes. Quesada has represented Fortune 500 companies, as well as privately held businesses, entrepreneurs and high-net worth individuals. He has a broad range of experience in negotiating contracts, including, stock purchase agreements, stockholder and operating agreements, manufacturing, distribution and licensing agreements, real estate purchase contracts and leases, and employment agreements, among others. Quesada has achieved an AV® Preeminent™ Rating by Martindale-Hubbell, and has been recognized in by his peers for his ability and professionalism in various publications, including the South Florida Legal Guide’s “Top Lawyers.” Prior to forming SMGQ Law, Quesada served as regional counsel for VISA’s Latin America and Caribbean Region.
www.sflegalguide.com
example, the arbitrator selection process often takes several months. This time can be minimized by requiring arbitrator selection within 30 days of the initiation of the dispute. Pretrial discovery can also be sped up, if not eliminated, by the inclusion of mandatory disclosures, perhaps as soon as 30 days after filing. Finally, the hearing may be mandated to occur within a specific time period, such as 90 days of filing, with a written ruling required by a date certain shortly thereafter. Including specific deadlines for required actions in the arbitration provision can significantly speed up the process. • Efficient Discovery – Another intended benefit of
Roland Sanchez-Medina, Jr. is a founding partner of SMGQ who concentrates his practice in the areas of corporate law, mergers and acquisitions, securities law, divestitures, joint ventures, finance, board governance, real estate transactions, including real estate financing, tax planning and structure, and international tax planning for inbound transactions. Sanchez-Medina has achieved an AV rating from Martindale-Hubbell, which is the highest rating possible regarding legal ability and professional ethics, and has been recognized in various publications by his peers as a top lawyer, including the South Florida Legal Guide, Florida Trend’s Legal Elite and SuperLawyers. He is a frequent speaker and panel member at programs and seminars on corporate, tax and real estate matters. Sanchez-Medina also serves on the Orange Bowl Committee and on the Board of Governors of The Florida Bar.
Robert Thornburg is a registered patent attorney and intellectual property litigation specialist with extensive experience in copyright, trademark, trade secret and technology-focused litigation, patent and trademark prosecution, and domain name disputes. Thornburg serves as President of the University of Florida Law Alumni Council, on the Association of Intellectual Property Firms’ Board of Directors, as well as the Copyright Society of the USA Executive Committee. Robert has been listed in Florida Super Lawyers since 2010, designated in Best Lawyers in America since 2013, and recognized as a Rising Star in the Daily Business Review’s 40 Under 40 in 2013. Thornburg is an active lecturer on IP topics and serves as a technology law expert for Miami television and radio.