South Florida Legal Guide 2016 Financial Edition by South Florida Legal Guide

FINANCIAL EDITION 2016

CABA GOVERNMENT RELATIONS DEFAMATION SOUTH FLORIDA LAW SCHOOLS

THE FATE OF THE MEDICAL MARIJUANA BUSINESS IN FLORIDA

PLUS FRANCHISOR LIABILITY, NEGLIGENT SECURITY, CHARITABLE CONTRIBUTIONS AND MORE.

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Civil Litigation

Domestic Relations Intellectual Property Litigation Securities Litigation Wrongful Death

ANDREW C. HALL ADAM J. LAMB ADAM S. HALL MATTHEW P. LETO ROARKE O. MAXWELL DANIEL E. DAVIS VANESSA PALACIO KEITH R. GAUDIOSO JOSHUA M. SALMON JON W. ZEDER - OF COUNSEL

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CONTENTS

Inside

THIS ISSUE 03 Editor’s Note 05 Publisher’s Note 06 Government Relations 11 Medical Marijuana 14 CABA 16 Defamation 20 South Florida Law Schools 28 Downtown Miami’s Future 30 Cash Balance Pension Plans 32 Franchisor Liability

for Terrorism Abroad

34 From Your Trusted Advisor – A Guide To Successfully Starting Your Firm

36 How Negligent Security Cases Save Florida’s Economy

38 Living, Working and Buying

Real Estate in One of the Most Exciting Markets in the World

40 Charitable Contribution of Personal Residences

42 Profiles

34 2

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

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EDITOR’S NOTE

A Look at Government and Business Best friends, fierce enemies or partners in serving society?

IT WILL COME TO NO SURPRISE to our readers that government laws, ordinances, rules and regulations shape the playing field for private enterprise in the United States. A law like Florida’s “Compassionate Use Medical Marijuana Act of 2014” can open the door to new business opportunities. On the other hand, government regulations can add to the costs of doing business, and a poorly conceived law can drive companies out of a once-profitable market. This issue of South Florida Legal Guide’s annual Financial Edition examines some of the challenging issues related to government and business entities, which can be friends, enemies or partners working toward a mutual goal. One of the main features in this issue looks at the role of government relations attorneys, who guide their clients through the maze of federal, state and local rules and regulations. They also help businesses win contracts from government agencies, increasing their revenue stream, market presence and potential profitability. Another article looks at the timely issue of defamation claims, where public and private figures may be treated very differently under the law. While politicians are generally “fair game” for critical comments, private figures can become targets of a defamation suit by publishing false and derogatory statements in a text, email or social media post. As one attorney said, “Most people don’t realize the risk of a defamation claim until it happens to them.” A third feature examines Florida’s evolving medical marijuana landscape, which has gradually solidified under the guidance of the state Department of Health. However, that could change on Election Day, November 8, if voters add a medical marijuana amendment to the state constitution. Of course, the outcome of the 2016 U.S. presidential and congressional election in November will also have a major impact on relationship between government and business in the next four years. We encourage our readers to take part in this election and make a wellinformed decision in the voting booth. In the meantime, you can learn more about current challenges and opportunities in the legal, government and business arenas in the Professional Forum of our Financial edition. As always, our goal is to provide our readers with fresh insights and ideas from experienced attorneys, bankers and accountants. Thank you again for your support!

Richard Westlund Editor

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

MASTHEAD

PUBLISHER JACOB SAFDEYE jacob@sflegalguide.com

EDITOR IN CHIEF RICHARD WESTLUND editor@sflegalguide.com

CREATIVE DIRECTOR ELIZABETH CARLISLE creative@sflegalguide.com

GUEST CONTRIBUTORS ANDREW C. HALL STEVE LANDE JOHN E. LEIGHTON MATTHEW P. LETO ANA M. OLARTE MEY-LING PEREZ

SOUTH FLORIDA LEGAL GUIDE Volume 17, Number 2, 2016

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 â&#x20AC;¢ www.sflegalguide.com

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

PUBLISHER’S NOTE

There Has to Be a Better Way Forward “My fellow Americans, our long national nightmare is over.” BY THE TIME YOU READ this column, the U.S. presidential election will be just a few days away. It seems appropriate to quote from President Ford’s inaugural address in 1974 after the resignation of President Nixon as he said, “My fellow Americans, our long national nightmare is over.” Now, we can look forward to the end of our current election cycle nightmare. Regardless of the outcome, we are clearly a divided country, where political polarization seems to be getting worse, not better. As someone who believes in the voice of reason, compromise and finding win-win solutions to our national problems, I am deeply concerned about the close-minded positions of many Americans. As this election campaign has demonstrated, many people are paying attention only to the personal flaws of the “other” candidate. As a result, there is very little discussion about the important policy issues, about our national values or about a positive vision for the future. I can certainly understand why someone would prefer one candidate over another, even if they are supporting the lesser of two evils. But I do have trouble understanding those people who have elevated their chosen candidate as someone who could do no wrong. Believe me, neither of these candidates is the next messiah. Much of the responsibility for this sorry situation rests with the media. Long gone are the days when newspapers and television stations reported both sides of the story in an impartial way. Nowadays, most of the major news outlets, from Fox News to CNN to MSNBC and others, are perceived as having a bias toward the Republican or Democratic parties. Their choices of political commentators, of the daily news topics and the headlines they post often suggest a leaning one way or the other. In today’s media world, almost anyone can publish their political opinions. There is no requirement for checking the facts or presenting other aspects of the story – one of the basics of Journalism 101. As a result, people gravitate toward the sources of information that confirm their current beliefs, rather than media outlets that might challenge their ideas. An even more serious concern is thinking that there are simple, easy answers to the many complex challenges we face in our society and around the world. So, how many of us are willing to keep an open mind about the two presidential candidates – their flaws and their good points? And how many of us will be willing to put our opinions behind after the election and work together for a better America? I believe that something has to change in our media-centric world for that to occur. We need to put this nightmare behind us and move forward again.

Jacob Safdeye Publisher

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

GOVERNMENT RELATIONS

PUTTING KNOWLEDGE AND ‘PEOPLE SKILLS’ TO WORK GOVERNMENT RELATIONS PROFESSIONALS play an important role in advancing the interests of business, investment and financial clients. In South Florida, they help companies prepare successful bids for municipal, state and federal contracts, advise clients on meeting regulatory standards, and serve as advocates in legal disputes. They also draw on their knowledge to look into the future and help clients position themselves to meet the challenges of the next few years. Here are insights from five of South Florida’s leading government relations professionals.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

GOVERNMENT RELATIONS

Robert A. Butterworth

Bob Butterworth: Helping Companies Do the Right Thing As Florida’s Attorney General, Robert “Bob” A. Butterworth received national recognition for enforcing victim and consumer protection, environmental, civil rights and antitrust laws. In addition to his leadership in the multi-state litigation against the tobacco industry, he was responsible for the passage of numerous Florida statutes and was the impetus behind amendments to Florida’s Constitution expanding open government to all three branches of government and reforming the state’s antiquated Cabinet system. He also served as a county judge, circuit judge, prosecutor and Broward County sheriff. Drawing on that career in public service, Butterworth advises corporate and business clients in a wide range of matters in his government relations practice at Buchanan, Ingersoll & Rooney in Fort Lauderdale. “When it comes to regulations, most large companies want to do the right thing,” he said. “It saves time and money and gives the company a good reputation. If

there are new rules that are crazy, you can file an appeal.” A large aspect of Butterworth’s practice is corporate ethics and integrity audits, making sure that key decision-makers in an organization know the rules and understand how to follow them. For instance, he assisted a publicly traded utility with an integrity audit, helping it rebuild public trust. Butterworth said businesses seeking to influence government action should think carefully about the impression they want to make. “Going in as a bully or making threats doesn’t go over well,” he said. “It’s also not a good idea to tell a staffer that you’ve donated money to a public official who will be watching. The system simply doesn’t work that way. It’s far better to treat everyone with courtesy when you present your case.” “If a company does get off on the wrong foot, I can come in and analyze what they’ve done,” Butterworth said. “If someone has gone over the line, I talk with the senior executives about monitoring and changing practices going forward.” For instance, a new company policy or training program might be necessary. “If the client has done nothing wrong, we tackle that issue head on,” Butterworth added. “After all, sometimes a government entity takes action based on the wrong information.” Even if the company has a strong legal case, Butterworth says it’s important to analyze the business aspects as well. A protracted dispute with a regulatory agency could lead to negative publicity in the “court of public opinion,” potentially reducing the company’s value. “With social media and search engines, a regulatory issue can take on a life of its own,” he added. “You have to factor public relations and the media impact into the decision-making process.” Having been involved in city, county, state and federal government, Butterworth says legislators and regulators see their job as protecting their citizens. “That is absolutely correct,” he added. “If they see a business get out of line, their job is to correct the situation. A company that deliberately breaks the rules, hoping to get away with something, deserves to be sanctioned.”

Alberto R. Cardenas

Al Cardenas: Advising on Regulatory Matters and Trends In a career spanning more than four decades, Alberto “Al” R. Cardenas has served as an adviser to U.S. presidents, as counsel of record in precedent-setting court decisions, and as a commentator and writer on issues of national importance. Now, he draws on that government relations experience as a senior partner with Squire Patton Boggs in Miami. “There are three basic reasons clients come to us,” Cardenas said. “They want to prevent laws and regulations that would impact their bottom line, defend themselves from burdens that would hamper their operations and shareholders, or they would like to see government implement ideas that would be good for the public sector, as well as their companies. I understand how those processes work.” Cardenas is active on the local, state and federal government level, helping clients in regulated industries like financial services, energy and home building understand current issues and implement an overall strategy for the future. “Some clients come in for an ‘annual checkup’ while others need ‘emergency room’ assistance,” he said. “In either case, my goal is to help them navigate the government waters.” Early in his law career, Cardenas worked with Robert Traurig, co-founder of Greenberg Traurig, and then spent 24 years with Thomas Tew. After Tew died in 2014, Cardenas joined Squire Sanders Bogg. Cardenas has also been active in the Republican Party, assisting Presidents

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GOVERNMENT RELATIONS

Ronald Reagan and George H.W. Bush, and serving two terms as Florida chairman of the party. Now, Cardenas is the federal practice leader in his firm’s Washington, D.C, office, and active in its lobbying practice in Tallahassee. He is also active in governmentrelated legal work in Miami in areas such as bonds and public financing. Through the years, Cardenas has seen a steady growth in the regulatory aspects of government. “I have seen estimates that businesses today spend $2 trillion to be in compliance with federal regulations,” he said. “One of our jobs is to make sure our clients understand the full embrace of the regulatory environment.” “To be a good government relations attorney, you have to know the subject matter and keep up with what Congress, the state Legislature and the regulatory agencies are proposing,” he said. “You also need to nurture relationship with decision-makers, and understand their values and learn their vision for the next five to 10 years.” For instance, an electric utility might need to generate more power to serve customers in the future. “What kind of plant should you design and what fuels should it use?” he said. “You want to be sure that whatever you build will be reliable and withstand the scrutiny of the environmental trends of tomorrow.” That’s also true for start-ups in fields like information technology and transportation. “Bright young entrepreneurs who launched successful technology companies like Uber, Facebook and Google find themselves facing new challenges from local, state and federal government,” Cardenas said. “This is one of the growth areas for government relations firms.” Cardenas adds that the volume of information flowing from Washington and Tallahassee is far too much for one person to absorb, and a small lobbying firm can only maintain expertise in narrow areas. You need a large platform with attorneys who understand different industries to provide quality service to clients.” While many businesses are unhappy about the high level of regulation, Cardenas says it’s not a good strategy to try to fight 8

William J. Cea

government every day. “Making enemies is not in your best interest,” he said. “Unless an agency is trying to shut down your operations, you need to look beyond the immediate issue and have a long-range perspective.” Bill Cea: Helping clients win government bids William “Bill” J. Cea is one of South Florida’s leading procurement attorneys, helping clients win or defend major dollar bids and proposals. A shareholder with Becker & Poliakoff in West Palm Beach, Cea is a board-certified construction attorney and Certified Circuit Court Mediator. “Public procurement is a very fast-paced and detail-oriented area of the law,” said Cea. “It’s not a ‘one size fits all ‘ approach since every public agency is different. There are special districts, municipalities and counties – each with its own rules – as well as state statutes and federal laws.” Through the years, Cea has handled federal, state and local bids in many sectors, including construction, professional services, food and vendor concessions, towing, information technology, landscaping and property management, airport services, and office services throughout Florida. For example, Cea helped a client secure and defend a multimillion-dollar contract with the Palm Beach County School

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

Board to provide supplemental academic instructional services, and successfully defended a challenge to a client’s contract for the construction of the new Broward County Courthouse. Cea advises clients at every step of the procurement process, even before a request for proposal (RFP) or a bid is advertised. “Sometimes a client may feel that the terms and conditions of an ongoing contract are unfair,” he said. “Or an RFP may be tailored in such a way that only one manufacturer can meet the requirements. I help the competitors level the playing field.” Once an agency had advertised for bids, clients typically formulate the business terms of their proposals. However, they might not understand the legal implications of submitting a bid, Cea said. “Firms are well served by going over the general requirements with counsel before submitting a bid,” Cea said. “For example, the RFP may have provisions regarding subcontractors, licenses or posting bonds that could be overlooked. Submitting the right bond form from an insurance agency can be the difference between gaining a lucrative contract or losing out.” When an advertisement for an RFP is pending, there are restrictions on lobbying the agency. Calling the wrong person, such as a councilman or mayor, might disqualify the company from getting the bid.

GOVERNMENT RELATIONS

“When a client wants to protest the specifications in an advertisement, you have to act quickly,” Cea said. “At the state level, you have to file a challenge within 72 hours after the ad is published or your motion may later be dismissed.” Cea also attends public meetings with clients and helps them gather information from public records. “Many clients want to get information on their competitors, and also see how the agency analyzed the bids,” he said. “Since a 2012 change in the Sunshine Law, agencies have been allowed to close portions of these meetings during the discussion, and reopen them when they hold the vote.” After the review and ranking of the bids an agency typically posts a “notice of recommended award.” On the state level, a losing bidder has only 72 hours to file a notice of intent to protest the decision. “The timing varies with local agencies, but the timing is always short,” he said. “There are also limits on who can protest – a firm that came in second or third in the ranking would probably have standing, but not one that came in tenth.” On the other hand, the firm winning the bid may want to intervene in any procedure and have a seat at the table to argue against the protest, Cea said. “In general, a court doesn’t want to make a judgment call unless the award was clearly arbitrary.” Cea said he saw a spike in bid protests from construction companies during the recession because they needed the public sector projects. “Now, there is less dependency on public bids because the private work has bounced back,” he said. “But there are still plenty of ‘make or break’ bids for government contracts, such as janitorial or food service contracts at major airports. It’s important for firms to consult with legal counsel when preparing, submitting and defending those bids.” Melinda S. Gentile: Building Public-Private Partnerships Melinda S. Gentile believes that publicprivate partnerships (P3) can offer great opportunities for construction and development companies. A partner with Peckar & Abramson in Miami and a board certified construction law attorney, Gentile helps clients seeking to tackle these major infrastructure projects.

Melinda S. Gentile

“My colleagues and I assist clients on the federal, state and local level, on both P3 projects and traditional bids,” said Gentile who has 30 years of experience in her legal field. “ “Right now, there is robust construction activity among our government agencies.” In the past few years, her firm has represented general contractors in billions of dollars of P3 projects, including the I-595 expansion in Broward County, the PortMiami tunnel, and expansions at Miami International Airport and Orlando International Airport. Gentile says the P3 approach usually emanates from a government agency that needs a project completed but wants a private partner to fund the cost. “But, an agency will certainly listen to a well-crafted P3 proposal and consider its merits,” she added. “While the nature of the financing depends on the project, the upfront money comes from non-government entities who will receive a share of the revenue later on.”

In her construction law practice, Gentile helps clients with bidding preparations, understanding the requirements and looking “behind the documents to the actual regulations” so they can properly price a bid for the project. “Once they submit a bid package, we can assist in a bid protest or defend against an award,” she said. “During the course of the project, we assist with any negotiations with the agency and try to resolve any disputes,” she said. “Then, at the end of the project we can help them through any litigation problems.” Gentile says there are no secrets to serving clients seeking government contracts. “It’s the same as with any type of practice,” she said. “You need to know the people involved at the agency, understand their goals and bring your knowledge and experience to bear for the client. This is a field where building and maintaining relationships is essential. You also need to know how an agency or municipality

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and private sectors together. “I work with a lot of dedicated professionals in government who are dedicated to serving their communities,” she said. “They take their jobs seriously and carry a great deal of responsibility on their shoulders, and deserve to be treated with respect.”

Al Maloof

functions, who reports to whom and where the responsibilities lie. That way, you’re not stepping on someone’s toes when you submit a proposal.” For example, many South Florida municipalities have incorporated energyefficiency or other “green” provisions into their RFP requirements. “Understanding LEED [Leadership in Energy and Environmental Design] standards and other sustainability trends is very important for anyone in construction practice today,” Gentile added. “You must be aware of these rules in order to submit bids and get the work.” Gentile adds that government relations attorneys can also help clients by monitoring the decisions in state or federal courts that affect what government agencies can and cannot do. “Where there are ambiguities in the laws, rules and regulations, the courts help us decide how they will be interpreted,” she said. “It’s particularly important to stay on top of developments in construction law, because this is such a complex field.” While some attorneys shy away from government work, Gentile says she enjoys the challenges of bringing the public

Al Maloof: A Consultant’s Perspective Al Maloof brings an insider’s perspective on government to his role as business consultant and lobbyist. In the past 25 years, he has served on numerous official boards, committees and task forces, and was appointed chairman of the MiamiDade Expressway Authority (MDX) Operations Committee and a member of the Florida Transportation Plan Steering Committee, which advised on developing the state’s multimodal transportation plan. “Governments focus on providing services to their communities and are not in the business of project development, design and operations,” said Maloof, managing partner of GJB Consulting LLC, an affiliate of Genovese Joblove & Battista P.A., a Miami-based law firm. “However, they are large holders of real estate and are often willing to partner with the private sector in infrastructure projects.” Maloof, who is not a member of the Bar, assists law firms and their clients in identifying suitable land for construction, design-build and P3 development, as well as navigating the regulations, identifying financing mechanisms and designing a project. “We strive to provide a turnkey package for law firms so they can engage their clients effectively in this field,” he said. “These developments require longterm agreements that need to be structured in a way that provides the client with a fair and reasonable return on investment while protecting the client’s interests.” In the P3 sector, Maloof is seeing an increasing number of unsolicited project proposals from domestic and international companies that are being offered to local governments. “There are companies doing

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

amazing things in construction, design, engineering and technology around the world,” said Maloof, who is a member of the American Public Transportation Association and the Design Build Institute of America. “For example, there are innovative advances in automated water and wastewater processing that expand capacity without significantly increasing labor costs. That creates opportunities for South Florida governments to keep up with population growth in an efficient manner.” Infrastructure projects from water treatment plants to roadways, airports and seaports also support the region’s commercial activities, Maloof added. “If you don’t have adequate water and sewer capacity, for instance, you can’t get a building permit. That keeps a company from doing business here, creating new jobs and increasing property tax revenues,” he said. Looking ahead, Maloof sees a critical need for multimodal mass transportation development in South Florida. “We anticipate seeing dozens of new projects in the next five years,” he said. “Now is the time to start planning for those opportunities.” In Miami-Dade County, those potential corridors include the eastwest S.R. 836 expressway, and the U.S. 1. busway stretching south to Homestead. Maloof said it’s always a good practice to engage professionals who focus on a certain field. “Advocates should stay within their areas of expertise and not try to be all things to all clients,” he said. “It’s not a good idea to take on a big assignment in an unfamiliar area, as that could result in a costly mistake for the client and compromise the integrity of your brand.” Reflecting on the overall role of a government relations advocate, Maloof said, there are three keys to success. “Always be truthful, do your research and be respectful of the government staff,” he said. “Know the people at the agency, be prepared to answer their questions and be ready to follow up in a way that allows you to advance the cause of your client.”

MEDICAL MARIJUANA

MEDICAL MARIJUANA:

WHAT LIES AHEAD FOR THE SUNSHINE STATE? ON NOVEMBER 8, Florida voters will determine the fate of the Florida Medical Marijuana Legalization Initiative (Amendment 2), which would authorize medical marijuana in the state’s constitution. But many voters do not realize that the state Legislature in 2014 approved a medical marijuana statute (amended in 2015) that allows the growing, distribution and dispensing of “pot” to certain types of patients. So, the Amendment 2 ballot issue is not a simple “yes or no” on allowing medical marijuana, but on determining the potential size and scale of the legalized industry and its impact on the state. For the past three years, the legalization medical marijuana has been a controversial topic for the state’s attorneys, accountants, bankers, physicians and other professionals. “It is simply inappropriate to allow

medical decision making to be determined by public opinion with the voters,” Jonathan Daitch, M.D., a pain management specialist in Fort Myers who is a leading opponent of Amendment 2. “All medical decisions should be made by doctors.” On the financial side, the cultivating, distribution and sale of medical marijuana could potentially become a billion-dollar industry that operates separately from the traditional pharmacy system. Medical marijuana could potentially create new jobs, boost sales tax revenue and increase demand for agricultural land, retail storefronts and office space. “The Legislature has created a vertically integrated industry, where the only people who would touch the medical marijuana are its licensees and the patients,” said Fort Lauderdale attorney Nicole “Nikki” Fried, founder of Igniting Florida, LLC, a medical

marijuana business practice and full-service lobbying firm. However, there are major legal, ethical and financial challenges that will need to be addressed for Florida’s marijuana industry to grow and prosper. “Right now,

Jonathan Daitch, M.D.

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MEDICAL MARIJUANA

Nicole “Nikki” Fried

the ultimate size of the state’s market, the scope of the regulations and the number of authorized dispensaries are still unknown,” said Jonathan Robbins, partner in Akerman’s Fort Lauderdale office, leader of the firm’s Regulated Substances Task Force and a founding board member of the National Cannabis Bar Association. “Regardless of the fate of Amendment 2, it will take time to answer those fundamental questions.” State vs. federal laws One of the complex legal challenges facing the Florida industry is that, possession, manufacturing, and distribution of marijuana is still a federal crime – a position reiterated by the Drug Enforcement Administration in August. That decision was based on a “scientific and medical evaluation” conducted by the U.S. Food and Drug Administration (FDA) at the request of the DEA. “The DEA and the FDA continue to believe that scientifically valid and well-controlled clinical trials conducted under investigational new drug (IND) applications are the most appropriate way to conduct research on the medicinal uses of marijuana,” said a statement from the DEA. “The U.S. government is concerned about keeping organized crime and money laundering operations out of the medical marijuana sector,” Robbins said. “The federal authorities also want to reduce the risk of a child accidently consuming medical marijuana at home, and the potential for automobile accidents caused

by an operator under the influence.” But Robbins believes a recent federal appellate court decision in U.S. v. McIntosh may keep federal law enforcement authorities from spending resources or prosecuting individuals whose actions are legal under state law. “That ruling could ease some of the legal tensions in this field,” he added. Attorney David Kotler, a shareholder with Cohen Kotler, P.A. in Boca Raton who represents clients in the marijuana industry, notes that Florida’s law does protect patients from prosecution for the legitimate use of marijuana under approved guidelines. For attorneys, The Florida Bar has issued a policy stating: “The Florida Bar will not prosecute a Florida Bar member solely for advising a client regarding the validity, scope, and meaning of Florida statutes regarding medical marijuana or for assisting a client in conduct the lawyer reasonably believes is permitted by Florida statutes, regulations, orders, and other state or local provisions implementing them, as long as the lawyer also advises the client regarding related federal law and policy.” Robbins emphasizes the need to be clear and specific in preparing engagement letters for medical marijuana-related businesses. “We make sure we advise our clients in writing that we will not assist them in any aspect of their operations that does not comply with state law,” he said. “It’s important for any attorney to know their client – but doubly so in this industry.” Kotler added, “This remains a grey area of the law, and you have to ask yourself ethically if you are comfortable in this field.” Other concerns The conflict between federal and state laws creates other difficulties for the medical marijuana industry in addition to potential prosecution. “Sending medical marijuana via the U.S. Postal Services is not allowed,” Robbins said. “It is also a crime to carry medical marijuana across a state line, even if you are going into another with a similar law.” A medical marijuana business in financial distress is not allowed to file for bankruptcy protection under federal law, Robbins said. Federally chartered banks are not allowed to open accounts for marijuana businesses or provide merchant services such as credit card processing. As a result, the medical and recreational marijuana businesses across the U.S. have been forced to rely on cash payments or alternative sources of financial services.

The conflict between state and federal laws also extends to the employment sector, says Kevin Vance, a partner at Duane Morris’ Miami office, who focuses on labor and employment issues and other types of business litigation. “In many states, an employer can refuse to hire someone or terminate an employee for failing a drug test for marijuana,” he said. “Other states have a provision that prohibits firing if the employee is authorized to take marijuana for medicinal purposes, but Florida’s law does not have that protective provision.” Under the federal Americans with Disabilities Act (ADA), workers with disabilities receive a certain degree of legal protection, and employers must make accommodations for their disabilities in some circumstances. “To date, the courts have decided there is no protection under the ADA for an employee taking medical marijuana,” Vance said. “However, this area of the law is still evolving, and there will undoubtedly be more litigation as these laws interact with each other.” Florida’s evolving stance on medical marijuana In 2014, Florida voters failed to approve a medical marijuana constitutional amendment similar in many ways to the current ballot measure. Although the amendment received a 58 percent “yes” vote, it failed to meet the super-majority threshold of 60 percent for proposed constitutional amendments. Before that vote, Florida legislators passed the “Compassionate Medical Cannabis Act of 2014,” which was signed into law by Governor Rick Scott on June 6, 2014. The law allowed patients with seizures and severe muscle spasms to be given marijuana extracts

Jonathan Robbins 12

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David Kotler

low in euphoria-inducing tetrahydrocannabinol (THC) and high in cannabidiol (CBD). To qualify, patients must obtain permission from a qualified doctor and be added to the Compassionate Use Registry. In 2016, Scott expanded the medical marijuana law by signing the “Right to Try Act,” allowing patients with terminal illnesses to have access to high-THC medical cannabis. During that session, Fried was part of the main lobbying team for the act’s passage. Now, the pending ballot measure would expand much further, allowing medical marijuana to be provided for patients with the following specific diseases: cancer, epilepsy, glaucoma, HIV, AIDS, post-traumatic stress disorder (PTSD), amyotrophic lateral sclerosis (ALS), Crohn’s disease, Parkinson’s disease and multiple sclerosis. It would also allow licensed physicians to certify patients for medical marijuana use after diagnosing them with some “other debilitating medical conditions of the same kind or class as or comparable to those enumerated.” The case against Amendment 2 This fall, many Florida medical professionals, along with anti-drug coalitions and the Florida Chamber of Commerce, have taken a stand against Amendment 2 for a variety of reasons. “The state Legislature took its time, listening to physicians, nurses, pharmacists and law enforcement officers before agreeing on legislation that everyone felt would be safe for communities,” said Daitch. “Now, this amendment would supersede that hard work, and remove safeguards that were built into the law.”

While Amendment 2 gives the state the right to control the growing of marijuana, it lacks the specific details concerning dispensaries, distribution, prescriptions, and patient compliance, according to the “Vote No on 2” coalition. There is also no local option to allow communities to ban, limit or restrict the location of dispensaries. “I am very concerned about the unbridled dispensing of marijuana,” Daitch said. “I don’t want to see unscrupulous doctors writing authorizations for almost anyone to get marijuana.” Those concerns are shared by the Florida Medical Association, which voted in August to oppose Amendment 2. The FMA, which represents more than 20,000 physicians in the state, also opposed the 2014 Amendment. Daitch points out that marijuana is a plant with many strains and varieties, not a medication that can be carefully tested and studied as part of the Federal Drug Administration (FDA) approval process. “We already have pharmaceutical-grade drug formulations that can help patients with the conditions outlined in Amendment 2, and we simply don’t need to pass this measure.” A high-risk business opportunity Under the 2014 law, the state Department of Health (DOH) was given the authority to register and regulate centers that produce and distribute marijuana for medical purposes and issue identification cards to patients and caregivers. That touched off a stream of administrative maneuvering and litigation over the issuance of DOH licenses. Initially, five growers were granted licenses to serve different areas of the state, but this year a sixth nursery was granted a license after challenging the regulations. The first licensee to dispense medical marijuana was Truelieve, which opened its Tallahassee dispensary in July. “I would imagine that each of the license holders has a different business model,” said Fried, who represented San Felasco Nurseries in Gainesville in its successful quest to obtain a state license. “Some may open dispensaries all over the state, while others may focus on home deliveries or more selective dispensary markets. In any case, there are high start-up costs involved with getting into this business when you consider the greenhouses, security requirements and equipment needed to extract the oils from the plants.”

Meanwhile, several Florida law firms have been looking at the medical marijuana business as a potential practice area. One of the early advocates of legalized medical marijuana was Kotler, who founded Medical Marijuana Business Lawyers, LLC, in 2014 and also serves as general counsel to the Florida Cannabis Industry Association. For the past three years, he has been representing clients, hosting educational seminars and consulting with other professionals about the business opportunities in this sector. “There was quite a bit of interest in medical marijuana in the summer of 2014 leading up to Amendment 2 and after Governor Scott signed the compassionate use act,” Kotler said. “But when Amendment 2 didn’t pass that year, I stayed in this field, while most attorneys went back to their regular practices.” Since then, Kotler has worked with nurseries, investors, accountants, trade show operators, and ancillary businesses. “There are plenty of Florida entrepreneurs getting involved in the business, along with the growers who have their hands on the plant,” he said. “But I don’t see it as a big ‘green rush.’ Instead, there has been a conservative, measured approach to getting involved this market.” Taking it slow is particularly important now, since if the Amendment 2 passes in November, the Legislature will need to enact new enabling rules for the Department of Health, Kotler said. “It may be hard to unwind what has already been set up in the state,” he added. “I don’t think there will be a huge increase in licenses and dispensaries. It’s more likely that newcomers will be integrated into the existing framework. But in any case, the future of medical marijuana will be up to the Legislature and the Department of Health even if Amendment 2 passes in November.”

Kevin Vance

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

CABA

CUBAN AMERICAN BAR ASSOCIATION: MOVING FORWARD IN CHANGING TIMES

ANNA MARIE “ANNIE” HERNANDEZ would have a very different life without the Cuban American Bar Association (CABA). Nearly a decade ago, she met her future husband at CABA’s annual elections. She also got to know several longtime leaders in Miami’s legal community who helped her advance in the association and later become a partner at Holland & Knight in Miami. Now, Hernandez is giving back to the legal community, serving as 2016 president of the association as it navigates through the evolving relationship between the United States and Cuba. “As time passes and there is more opening 14

up of relations between our countries, there is a greater possibility that the legal system in Cuba will change in a positive way, but that is not yet happening,” said Hernandez. “A few weeks ago, we had lunch with a Cuban man who had been in prison for eight years, and told us that the younger generation is only exposed to the government’s viewpoint because the press and the radio are censored. We would like to see that change.” CABA promoted a “Cuba Internet Freedom Conference” held on September 12, that focused on strategies helping more Cubans connect with the rest of

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

the world through tablets, computers and greater access to online communications. “Right now, dissident groups listen to the radio, transcribe what they hear using typewriters and print pamphlets to tell their neighbors,” Hernandez said. “But the more they are able to connect online the more they can learn about what’s going on outside Cuba.” As Cuba opens up to greater U.S. travel and investment, CABA also felt the time was right to hold a larger conference and give South Florida professionals an opportunity to learn more about current conditions on the island.

CABA That two day-long “CABA on Cuba Conference,” held September 23 and 24 at Florida International University’s College of Law featured a high-powered roster of invited guests, including FIU Professor Dr. Michael Bustamante, Cuban dissident Antonio Rodiles, U.S. Representative Carlos Curbelo and Orlando Gutierrez Boronat, national secretary of the Directorio Democratico Cuba. Participating attorneys included Aymee D. Valdivia, Holland & Knight’s Cuba Action Team; Peter Quinter, past chair, The Florida Bar’s International Law Section; Stephen Zack. former president, American Bar Association; Pedro Freyre, chair, Akerman’s International Practice; and Aliette Del Pozo Rodz, chair, Shutts & Bowen Cuba Task Force. “We want to influence and be part of the change process in Cuba,” Hernandez said. “That includes looking at foreign investment, legal risks, property claims and the U.S. embargo, as well as what role, if any, the U.S. would play in a post-Castro Cuba.” A deep personal connection Like many CABA members, Hernandez feels a deep personal connection to Cuba. Her parents, Raul Hernandez and Mari-Tere De Lara were both born in Cuba, but their families sent them to Miami as children in 1960 after Fidel Castro’s communist revolution. “I grew up in a household with Cuban grandparents,” Hernandez said. “My godfather was imprisoned in Cuba after the Bay of Pigs in 1962 and I have a great uncle who was arrested and held as a political prisoner for more than 20 years.” Hernandez earned a bachelor’s degree in history and political science at Florida International University, and her law degree at the University of Miami. “Shortly after being admitted to the Bar, I started attending CABA functions,” she said. “At the time, I was a medical malpractice defense attorney, and found myself litigating against CABA past presidents Manny Morales, Tom Gamba and Hector Lombana. As I got to know them, they, along with good friend and CABA past president Marlene Quintana, encouraged me to get more active in CABA, and I ran for the board in December 2005.” Along the way, Hernandez changed her practice to real estate and commercial litigation and joined Holland & Knight, whose partners she knew from CABA. She also

met attorney Carlos H. Gamez at a CABA function. He courted her for several years and they married in March. He is now assistant city attorney for the City of Miami. “At my investiture as president, I spoke on what CABA has meant to me,” she said. “I met my husband, became a step-mom and got my law firm position all through involvement with CABA.” A dynamic organization Hernandez is the 42nd president of CABA, a nonprofit voluntary bar association founded in 1974 by lawyers of Cuban descent. Today, its members include judges, lawyers, and law students of all backgrounds interested in Anna Marie “Annie” Hernandez issues affecting the Cuban community, as well as broader legal and human issues. It’s been great to see them develop rights issues impacting minority communiroots in the South Florida community.” ties as a whole. Today, CABA has more than 1,000 Through the years, CABA members have active members, including several from volunteered their time and made ongoing outside South Florida. “Our leaders and contributions to pro bono service project membership have been getting younger and and law school scholarships. The Cuban American Bar Association Pro younger, and a majority of our board members are now women,” Hernandez said. “But Bono Project (CABA Pro Bono) was estabthere is still very much a Cuban-American lished in 1984 to assist indigent Spanishidentity in the younger generations.” speaking individuals. In 1992, CABA Pro Long before the thawing of U.S-Cuba Bono was nationally recognized as a “Point diplomatic relations began in December of Light” by President George H. W. Bush. 2014, CABA has been a consistent advocate CABA Pro Bono is funded in part through for human rights in Cuba. “The freedoms grants by the Florida Bar Foundation and we take for granted, they simply don’t proceeds raised at various events, including have,” Hernandez said. “Also, the practice the annual “Art in the Tropics” event. = of law is very different there, because an In addition, the Cuban American Bar attorney’s first allegiance is to the state and Foundation (CABF) has endowed scholarthe communist party – not the spirit of ships at six Florida law schools, and grants justice.” several “at-large” scholarships to eligible law Looking ahead, Hernandez is “cautiously students throughout the country. optimistic” about developments in Cuba, Hernandez notes that in its first decades, but says the state is still in control of major CABA was the voice for other minority commercial and business opportunities. attorneys who didn’t have their own bar associations. “Now, there are associations for “We believe that CABA will continue to Venezuelan, Colombian, Haitian and Puerto play an important role in the dialogue between the U.S. and Cuba, as an advocate Rican lawyers,” she said. “We all share for human rights, dignity and freedom.” ideas and input, and work together on some SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

DEFAMATION

DEFAMATION CLAIMS: A GROWING RISK IN SOCIAL, DIGITAL AND TRADITIONAL MEDIA DEFAMATORY WORDS uttered in an interview or posted online can come back to haunt business executives, attorneys, property owners and politicians, as the 2016 U.S. Presidential contest has clearly demonstrated. While public figures like Donald Trump and Hillary Clinton face significant legal hurdles in suits for false and defamatory remarks, it’s a very different story for private individuals, according to several leading South Florida attorneys. “If you make false and damaging statements of any kind that are published to at least one other person using email, social media or in a newspaper interview, you could be the target of a defamation

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

suit,” said Dana J. McElroy, partner with Thomas & LoCicero PL in Fort Lauderdale, whose trial and appellate practice includes defending newspapers, broadcast stations, journalists, companies and individuals against libel and defamation suits. “Being able to self-publish your images and statements has many consequences, including personal exposure to defamation claims.” With the rise of online reviews and ratings, as well as the widespread use of Twitter, Facebook, LinkedIn, Pinterest and dozens of other popular social media sites, professionals and businesses have become much more sensitive to their reputations, added McElroy.

DEFAMATION

“More and more private individuals, including lawyers, accountants, bankers and real estate professionals, are now subject to disparaging statements online.,” she said “While there are still suits against traditional media companies, the universe has expanded with all the online channels.” McElroy notes that if a newspaper, radio or television station makes a mistake in reporting, a correction can be posted in the next issue or newscast. However, errors in online postings even with a correction often take on a life of their own. “An article that mistakenly says Mr. X was arrested will still be searchable years from now,” McElroy said. “It’s very difficult to make things go away.” A balancing act Under the First Amendment’s freedom of speech provision, print, broadcast and online publications have some protections against libel and other defamation lawsuits filed by public figures and public officials. “The founding fathers saw the press as being a faithful watchdog over the political process,” said Jerold Budney, shareholder with Greenberg Traurig in Fort Lauderdale, who has represented media and non-media clients in defamation cases in both trial and appellate courts. “However, there is always a balancing act between the rights of the press and the rights of individuals in our society to protect their reputation from being damaged by false statements.” Budney says there is a clear difference in the standards for defamation claims brought by public figures or public officials, and those filed by private figures. “In a claim involving a public figure or public official, you have to show that the report was false, and either hurt the plaintiff’s reputation or caused financial damage,” he said. “But in addition, you also have to show actual malice – that the media defendant either knew the report was false, or published it in reckless disregard of the truth.” The “actual malice” test dates back to the landmark 1964 ruling by the U.S. Supreme Court in New York Times Co. v. Sullivan and continues to protect the media in claims filed by public figures or public officials. But under Florida law, a private individual, such as a private business owner

Dana J. McElroy,

or a professional who is not embroiled in a public controversy, would only have to show the publisher was negligent in publishing a statement that was false, damaging the plaintiff’s reputation or resulting in a financial loss. “A key issue is these cases is what the journalist did to determine whether a statement was true,” said Sanford Bohrer, partner at Holland & Knight in Miami, who has an extensive media law practice and has represented publishers and broadcasters in approximately 100 defamation, privacy and intellectual property cases. “Good reporting involves digging into the situation to see

if a potentially damaging statement can be supported.” Careless use of words can also get writers and publishers into trouble. “If you’re writing or blogging about a new topic, be sure you understand the context,” Bohrer said. “It would be a mistake to say the mayor ‘passed a law’ after receiving a campaign contribution, for example, because it is really the county commission that passes ordinances.” Another factor affecting the outcome of some defamation cases is whether the published statements are fact or opinion. “An editorial writer at a newspaper might say, ‘The mayor is a crook,’ after reviewing

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

DEFAMATION

Jerold Budney,

a grand jury report on unlawful payments,” Bohrer said. “That would be considered a very defensible opinion if the mayor decided to file a defamation claim.” On the other hand, a reporter who wrote, “Many people say the mayor is a crook,” or “The mayor is alleged to be a crook” would have less protection against defamation, added Bohrer. “Even if you only report on someone else’s comments, you could be sued along with the original speaker.” Since there are two legal standards, there are a number of defamation cases that have turned on arguments over whether the plaintiff was a public or private figure. “Sometimes private individuals get caught up in public controversies,” said McElroy. “In

that case, they might be considered a limitedpurpose public figure, only in that context.” While U.S. law generally protects the media in defamation cases, private individuals can also file claims alleging invasion of privacy and win damages – even if the reports are true. In March, a Florida jury awarded $140 million in damages to former professional wrestler Hulk Hogan after Gawker.com published excerpts of a secret sex tape. The ruling bankrupted Gawker’s parent company, which ceased publishing in August. Private defamation claims McElroy says many private defamation suits originate with a comment about a competitor from someone within the organization. It might be a sales person’s damaging remark,

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

a disparaging email message or a negative online post. “All it takes is for someone to get upset and blast something out,” she said. For example, McElroy spent several years defending a trade industry group that posted derogatory comments about a competitor on its online message board. “None of the members who were participating in the chat room conversation realized how far their words would go,” she said. Budney, Bohrer and McElroy agree that defending a defamation case can be expensive. Unless the individual or company has purchased a special insurance policy, the defendant will be responsible for paying attorney fees and court costs. “Errors and omissions (E&O) policies usually don’t cover defamation claims,” McElroy said, adding that “special media” policies are available from several insurers. From the plaintiff’s side, Budney says it’s important to take a careful look at all aspects of the matter before filing a lawsuit. “Even if you recover damages, it’s still an expensive proposition,” he said. “Not only do you have to pay your own lawyers an amount that may be more than you recover in damages, but even if you recover more than that it still may not be worth all the time and aggravation involved in prosecuting your claim.” Budney and Stephen Mendelsohn, a partner in Greenberg Traurig’s Boca Raton office, together with Stephen Binhak, a solo practitioner in Miami, defended a Palm Beach County homeowner against a defamation lawsuit filed by his former real estate agent against the homeowner and against a competitor of the agent in a case that lasted seven years. The Boca Raton homeowner had listed his home with the plaintiff without success, and then sold the home using a second agent in 2009. Statements by the owner about the first agent were included in a testimonial the owner had given for the second agent. In April, a jury found in favor of both defendants, Budney said. There are other issues that can increase the time and cost of defamation suits. For example, an Internet service provider (ISP) is immune under federal law from direct liability for statements made by its

DEFAMATION

subscribers. “If negative comments are posted online anonymously or without a full name, the plaintiff first has to identify who made the statement,” Budney said. “They often do so by subpoenaing the ISP, and trying to get a court to order the ISP to provide the author’s name and contact information. If they succeed, then they can bring that person into the defamation case.” Another concern for plaintiffs is that filing a defamation suit puts the original statement into public view. “Only a few people might have seen the original comments,” Budney said. “Now, you are making the public aware of these statements through media coverage of the defamation suit, and even if you win a victory in court, there could still be damage to your reputation in the eyes of people who heard about the comments only because they read articles about the lawsuit, but never read about the result.” Calculating damages in defamation cases depends on the facts that form the basis for the claim, said Bohrer. “An individual who suffers emotional damage, and can prove it, could be entitled to a six or seven-figure award,” he said. “An individual plaintiff might also substantiate the financial damage to his or her reputation from the statement.” But winning damages for a company is much harder, Bohrer said. “There are no hurt feelings that come into play, and you have to show that the company lost revenue as a result of the statement.” Bohrer represented a nationwide retail sales company that filed a defamation suit against an ex-employee who made disparaging remarks about the company. “Even though the company won a default judgment, I told the owner he would not receive any damages,” Bohrer said. “That proved to be correct because the company’s accountant could not show any loss of sales or revenue from the exemployee’s remarks.” Avoiding defamation claims One of the best ways to avoid being the target of an expensive defamation claim is to take a deep breath and pause before publishing an angry email, tweet or Facebook post. “It’s good to be able to vent your feelings, but do so before you post a statement, photo or

Sanford Bohrer

video,” McElroy said. “Have someone else in your office take an objective look at your statements, or contact a media attorney for a pre-publication assessment of the legal risks.” To reduce exposure to potential claims, Bohrer suggests that South Florida employers adopt written policies and educate their workforce about the legal risks. That policy could include the following points: • Encourage employees to distinguish between fact and opinion. • Prohibit disparagement of the employer’s products, services or employees, including management. • Prohibit defamatory statements. • In fields like banking, securities, law and medicine, educate employees regarding disclosure rules and compliance regulations

• Have a “friending” policy regarding social media • Prohibit statements that could violate employment discrimination laws • Consider rules relating to communications about other employees’ personal lives. • Prohibit discussion of all litigation involving the employer and all public disputes, even if not in litigation, relating to employer. “Most people don’t realize the risk of a defamation claim until it happens to them,” said McElroy. “But you should be very sensitive to these issues. Take a close look at your statement and see if you can find a way to communicate your message in a way that lessens your risk of being sued for defamation.”

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

LAW SCHOOLS

AN UPDATE ON SOUTH FLORIDA’S LAW SCHOOL PROGRAMS

SOUTH FLORIDA IS FORTUNATE to have four of the state’s law schools located in the tri-county metropolitan region. Collectively, the schools graduate a steady stream of well-trained legal professionals ready to contribute to the region’s professional workforce in the public and private sectors. Convenient accessibility to a legal education is also important for South Florida students from diverse backgrounds who may be managing family and employment responsibilities while pursuing their career goals. Understanding the legal perspective can also be a benefit to

entrepreneurs, investors, accountants, bankers and other financial professionals who can apply that training to their own practices. While South Florida’s law schools continue to focus on developing wellhoned legal skills, their programs have grown and changed to address the evolving issues of the regional, national and international legal community. Today, all four law schools are deeply engaged with the challenging issues of today, including professional diversity and legal services for low-income individuals and families. As Patricia White, dean of the University of

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

Miami School of Law, says, “The law school of today is not your father’s law school …” To help South Florida’s legal, litigation support and banking professionals stay in touch with the region’s legal education programs, South Florida Legal Guide is presenting the following contributions from the deans of the region’s four law schools: Florida International University, Nova Southeastern University, St. Thomas University and the University of Miami. We invite you to read what they have to say about how their programs are meeting the continuing demand for a high quality legal education in South Florida.

LAW SCHOOLS

UNIVERSITY OF MIAMI UM LAW: LEADING THE WAY TO THE FUTURE By Dean Patricia White IN THIS PAST DECADE three significant developments came together simultaneously to create a period of challenge and flux in the legal profession: the growth of technology, the globalization of the legal profession, and the recession. As the legal profession has adjusted to these developments - often slowly and begrudgingly -- law schools have too. Throughout this period, the University of Miami School of Law has sought to anticipate the needed changes in the profession and to lead the way with innovative approaches and programs. Our goal has been, and remains, to treat the challenges of the period as important opportunities to think hard about the role of law and lawyers in the 21st century. Law plays a crucial role in the urgent issues of our time – climate change, international, national, and personal security, economic and social rights and liberties, health policy, immigration policy, trade policy, tax policy, intellectual property development and protection – or of any time – due process rights, criminal justice, the protection of fundamental human rights, property rights, contractual rules and principles, procedural and adjudicative systems – the list goes on. Our job as a law school is to educate students who are well-prepared to contribute usefully in these spheres and to contribute ourselves as scholars, policy makers and defenders of the rule of Law. The University of Miami School of Law comes to these challenges with the great assets of over 20,000 living alumni in dozens of countries around the world, more than 20 joint-degree programs with other colleges within a major research university, international partnerships with over 40 schools and an entrepreneurial spirit which is second to none. The law school of today is not your father’s law school nor is it your granddaughter’s law school. It is a law school which constantly tries to anticipate that the law school of the future will retain the best of the past, and exemplify the best of the present. That is what we aspire to do. I encourage you to visit our website at www.law.miami.edu

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

LAW SCHOOLS

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

LAW SCHOOLS

FLORIDA INTERNATIONAL UNIVERSITY: COMMITTED TO EXCELLENCE AND SUCCESS By Dean R. Alexander Acosta FIU LAW PROVIDES a contemporary, high-quality legal education, emphasizing excellence and success at both the individual and the institutional level. We enroll a smaller class intentionally so that we can foster a community that is both intellectually rigorous and interpersonally accessible, all within one of the nation’s largest legal markets. This combination of traits has been integral to our success. We know of no other law school that has risen as rapidly within the traditional rankings. And we have done so while preserving our diversity and our tuition advantage as a state-supported law school. Our students are outstanding. They enter law school with exemplary academic records, and their collective achievements throughout their time here are equally impressive. This past year our mock trial team won the Chester H. Bedell Memorial Mock Trial competition, which is a statewide competition conducted annually by the Florida Bar’s trial lawyers section, and our negotiation team won its fourth consecutive ABA regional negotiation competition. Our students combine skill and will in equal measure, as evidenced by the class of 2015’s 88% first-time bar passage rate – the highest bar passage rate in all of Florida, and more than twenty percentage points above the state average. Our students’ achievements are also reflective of our faculty and administration’s commitment to quality teaching and thoughtful mentoring. Our students benefit from our cutting-edge curriculum, which blends traditional legal theory with thoughtful analysis of the pragmatic considerations that a modern society requires of its attorney

problem-solvers. We couple this dynamic in-class curriculum with a robust set of experiential learning programs, including seven inhouse legal clinics and externship programs with placements in a variety of judicial, civil, and criminal settings. As a result, our students graduate with a well-rounded skillset and a considered understanding of the profession’s expectations. Delivering such a quality education in Miami, a city long considered one of the world’s largest hubs for global commerce, gives our graduates a tremendous advantage when entering the job market. Our 2015 graduating class secured full-time, longterm law-related placements at a rate higher than any other law school in South Florida. FIU Law’s commitment to building community extends to the way the college engages with alumni and South Florida at large. Our alumni are incredibly engaged and committed to each other, our current students, and the institution. The college’s Alumni Circle has one of the highest participation rates of any law school alumni network in Florida, with nearly 20 percent of our alumni contributing significantly to the college’s various programs and scholarship funds. The South Florida community at large shares our alumni’s engagement. Throughout the

years we have engaged with the community on a number of levels. Indeed, many law firms and individual attorneys support our law college by sponsoring scholarships for our students. Our community engagement also takes more individualized forms. Some of the college’s most important endeavors are those undertaken through our clinical programs. From our Carlos A. Costa Immigration & Human Rights Clinic’s work assisting unaccompanied minors, to our Medical-Legal Partnership Clinic’s efforts to improve client access to healthcare in underserved communities, the college and its stakeholders are making a tangible, positive impact in the South Florida community. By collectively emphasizing quality in each of the ways that we deliver on our core mission, the college creates a community that prepares our students for the ethical and effective practice of law in the 21st first century. FIU Law is truly setting a standard of excellence for law schools in Florida by demonstrating how law schools can more effectively serve their students, their alumni, and their surrounding communities.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

LAW SCHOOLS

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

LAW SCHOOLS

NOVA SOUTHEASTERN UNIVERSITY: NSU LAW GROWS ENTERING CLASS, CLINICS, AND INTERNATIONAL OPPORTUNITIES By Dean Jon M. Garon ON AUGUST 19 AND 20, 100 NSU Shepard Broad College of Law students, staff, and faculty members volunteered at regional public service organizations to mark the end of new law student orientation, celebrate the new academic year, and continue a long-standing commitment to the local community. The community public service event capped off a week of orientation for the 240 new law students. The entering class was five percent larger than the prior year. While most are from the South Florida region, students enrolled from across the U.S. and abroad. Ten percent of the new students are foreign lawyers or part of dual degree programs with foreign law schools. The combination of a global perspective and local service come together to focus the NSU Law’s education on preparing lawyers with the skills, knowledge and technical know-how to succeed in a challenging legal marketplace. NSU Law’s courses, workshops, and labs focus on practice readiness for its law students. NSU Law was an early pioneer in providing on-campus, live-client legal clinics to benefit the student interns, and the public clients. NSU recently expanded its clinic offices, creating a high-tech legal office to help train its students. The most recent addition to the live-client clinics focuses on Adults with Intellectual and Developmental Disabilities Clinic. This clinic is funded through a generous donation by The Taft Foundation and will begin operations later this semester. It joins a number of other specialty service clinics, including the Family Law Clinic and Veterans Law Clinic which provide full-service legal assistance to eligible clients on a pro bono basis. As part of the growing clinical education, in February 2016, NSU Law launched a clinical legal incubator program. The legal incubator provides post-graduate training for new lawyers, enabling recent graduates to hone their practice skills and launch their own law offices. Attorneys in the program commit to donating a minimum of 200 hours

of pro bono legal service in exchange for the support and training in the development of their business. The faculty also provide over forty workshops and lab courses so students receive high-quality training in the skills they will practice as lawyers. In addition, a robust student-alumni mentoring program and monthly continuing legal education programs focused on important legal topics keep alumni connected to the law school community. For most students, however, live-client legal education is done in the field. Volunteer attorneys in government agencies, private offices, and other settings supervise law students who learn the legal skills and professional strategies to transition quickly from law student to lawyer upon graduation. Through the clinics and field placement programs, NSU Law guarantees a live-client clinic or field placement to every student. Since opening its doors in 1974, NSU Shepard Broad College of Law has also focused on preparing graduates to practice within the international environment that defines South Florida. The international flavor has continued to grow in recent years. That approach has led to a highly diverse student body, including students from across the globe. In the past year, NSU Law has helped found a new, international consortium which has quickly grown to 24 universities across five continents, hosting the consortium’s inaugural teaching conference. NSU Law students are able to earn dual degrees in Rome, Barcelona, or Prague, enabling the participants to practice in both Europe and the United States.

In other key areas, NSU Law has been part of the transformative changes to legal education. Health law has become an important program, and NSU has greatly expanded its courses and partnerships. In May 2016, NSU added a dual degree program between law and public health. This new degree program is in addition to programs with medicine, computer science, business, tax, and many other fields. The law school’s dual degree programs enable the Shepard Broad College of Law to take full advantage of the broader growth within NSU, which has been ranked 214 among the top national universities by U.S. News and World Report for 2017. Further building on the innovation and entrepreneurial spirit of the university as a whole, the law school has developed a comprehensive series of course offerings focusing on the “business of lawyering.” These offerings bring financial literacy, management, leadership, and other core business skills into the law school classroom to help assure that NSU Law graduates learn how to be business leaders in their community in addition to being great lawyers for their clients. Although the marketplace for lawyers remains challenging, the focus of NSU Law on graduating experienced lawyers who are committed to South Florida’s global community remains as strong as when NSU first launched its law school. Through courses, partnerships, workshops, and live-client experiences, today’s NSU Law graduates are better prepared to face the complex legal and economic environment than ever before.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

LAW SCHOOLS

ST. THOMAS UNIVERSITY: GROWING IN SIZE AND DEPTH By Dean Alfredo Garcia ST. THOMAS UNIVERSITY School of Law’s mission “emphasizes lifelong learning and scholarship in a personalized, caring environment under Catholic auspices with a diverse student body and faculty.” The school is devoted to “training lawyers sensitive to the needs of the region’s underrepresented communities, and to expanded access to professional opportunities which includes active partnerships with business, government, and the South Florida Community.” The Law School is part of St. Thomas University, an urban, studentcentered Catholic university with rich cultural and international diversity, dedicated to developing leaders for life. 26

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

Founded in 1984, St. Thomas Law has for over three decades consistently adhered to its mission of providing opportunities for those groups who have historically been underrepresented in the legal profession. St. Thomas Law is one of the most diverse law schools in the nation, having been recognized for that honor by numerous publications. Indeed, within the past year, Hispanic Outlook in Higher Education magazine named St. Thomas Law as the number one school in the country for Hispanic students. As described by our students, quoted in The Princeton Review Guide of the Best Law Schools (2016 edition), St. Thomas University School of Law “offers ‘a small, tight-knit community’ that truly wants to see its students thrive and succeed.” Consistent with our mission, St. Thomas Law was one of the first law schools in Florida to require pro bono legal service as a requirement of graduation. Students must complete at least 50 hours of pro bono services to the community, though a significant portion of the graduating students exceed that minimum threshold. This past year, the student body collectively contributed over 20,000 hours of pro bono services to the community. This past year, St. Thomas was ranked in the Top Ten Law Schools for Pro Bono Graduation Requirements by the Super Lawyers publication. Since its founding, St. Thomas Law has grown in size (from a student body of 300 to one of approximately 700) and depth: it has added two LLM programs and a JSD and expanded its clinical programs. In 2001, St. Thomas launched its LLM program in Intercultural Human Rights, which has brought over 400 students to our campus since that time from over sixty different countries in the world. In addition to that LLM, St. Thomas added an LLM in Environmental Sustainability as well as a doctorate (JSD) in Intercultural Human Rights. St. Thomas offers a broad array of clinical programs (eleven), ranging from Immigration, Appellate Litigation, Elder Law, Pax Romana United Nations Internship, Florida Supreme Court Internship, Tax Clinic to Civil and Criminal

LAW SCHOOLS

Practice Externships, among others. St. Thomas University School of Law, with its graduate program in Intercultural Human Rights, has been a leader in the struggle to combat human trafficking throughout the world. The School was awarded a $500,000 grant by the U.S. Department of Justice to combat, prevent, and ultimately eliminate human trafficking. To that end, St. Thomas founded a Human Trafficking Academy in 2011 that focuses on education, research and outreach. The Academy has certified over 450 professionals of various disciplines in the field through its intensive and interactive courses, taught by top-level experts and practitioners with extensive experience in the field of anti-trafficking. Furthermore, St. Thomas Law‘s Human Rights Institute provides pro bono legal services to low income persons in many different areas, including administrative, family, general civil, housing and immigration law. The Institute is funded by federal, state, and local grants. The CubanHaitian Immigration Program (CHIP), provides legal services to Cuban or Haitian entrants, parolees, or asylum applicants who reside in Miami-Dade, Monroe, Broward, or Palm Beach County and who have been in the United States less than five years since their date of arrival. The program is funded by the Department of Health and Human Services and administered by the Florida Department of Children and Families. Within this past year, the Human Rights Institute, whose Director is an alumna of St. Thomas University School of Law, has handled approximately 6,000 cases for

Cuban and Haitian clients. Our alumni, now over 5,000, have gained recognition in both the private and public sectors throughout the State and across the country. We have alumni in many of the major law firms (ALM 250), many of whom are partners in those firm – for example, Holland & Knight, Baker & McKenzie, Bilzin Sumberg and others. Many of our alumni are members of the state judiciary and federal agencies, with an alumna being recently appointed as an Administrative Law Immigration judge in Houston, Texas. We have a graduate who served as Interim Secretary of the Department of Children and Families in Florida and more than a handful of graduates who have served in the Florida Legislature. Our graduates have lived our mission and values as a Catholic institution dedicated to the dignity of the human being. We have a graduate who has adopted a victim of human trafficking, students who are helping unaccompanied immigrant children, and a powerhouse group of graduates who make up nearly half of the legal team at Dade Legal Aid. One alumna who represents our mission recently secured a $17.4 million verdict on behalf of five women who were sexually harassed and molested by their employer in Hendry County, Florida. Victoria MesaEstrada obtained her J.D. and LL.M. in Intercultural Human Rights at St. Thomas Law. She worked for two years on the case, but was laid off just months before the trial. Nevertheless, she stayed on the case to achieve a symbolic victory for her clients. The verdict, though uncollectible, delivered

a message to the agricultural industry that the rights of migrant workers would be vindicated. This fall, the Law School will be launching the EDGE program. “EDGE” stands for Entrepreneurs Dedicated to Giving Back and Excellence. This “incubator” program will assist new graduates who seek to pursue either a solo or small practice make the transition from law school to their goal of beginning their own practice. It will give the participants reduced rental office space and mentorship in exchange for a minimum of 100 hours of pro bono services. The program will be directed by former Third District Court of Appeals Judge David Gersten. As the cost of legal education has risen dramatically in the past decades, St. Thomas Law, like many other law schools, confronts the challenge of making law school more affordable, particularly for those students from humble backgrounds. One of the key priorities of the St. Thomas Law School administration is to increase endowed scholarships, both merit and need-based, in order to defray the cost of tuition and to build a lasting legacy for students who matriculate in the future. The law school’s alumni and distinguished Board of Advisors have made a significant commitment toward achieving that goal. Finally, we are proud of our faculty, dedicated and accomplished teachers whose cutting-edge scholarship and service to the academy, the local, national, and international communities have led by example in accomplishing the university’s mission of developing leaders for life.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

DOWNTOWN MIAMI’S FUTURE

A LOOK AT DOWNTOWN MIAMI’S FUTURE IN A RECENT INTERVIEW with South Florida Legal Guide, Jay Pelham, president, TotalBank, Miami, and the 2015-16 chairman of HistoryMiami, talked about downtown Miami’s remarkable evolution into a dynamic livework-play community with a Manhattan vibe.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

DOWNTOWN MIAMI’S FUTURE

We believe downtown is the ideal headquarters location for TotalBank, which has served MiamiDade County for 42 years. Q. Tell us about your impressions of downtown Miami. Pelham: During my 27 years in South Florida banking, I have worked on Brickell, in Coral Gables – and managed a business unit for several years in Manhattan – before moving into TotalBank’s downtown headquarters last year. It is truly remarkable how much our downtown has changed for the better in the past 15 years. Q. What are some of the highlights of that change? Pelham: Downtown is now filled with apartments and condominiums purchased by U.S. and international buyers from around the world. Many of these new residences cater to young professionals, managers, executives and even retirees who like the faster pace of urban living. Today, there are dozens of new downtown restaurants, vibrant cultural institutions, supermarkets, retail centers, sports, concerts and special events at American Airlines Arena. It’s an exciting lifestyle that’s sprung up in just a few years. Q. Can you give us a personal example? Pelham: One recent Friday night, my wife, who works on Brickell, took the Metromover to our office. We walked over to the restored Langford Hotel, which retains all the charm of the 1920s. We enjoyed cocktails with a group of our friends and colleagues at the Pawn Broker on the rooftop of the hotel. Later, we had a quiet dinner at PB Station downstairs in the same building. It was a very Manhattan-like evening for us. Q. What about downtown’s working environment? Pelham: That’s changed as well. Today, about one-third of our headquarters employees take public transit to work. They ride Metrorail trains and Metrobus vehicles, or simply walk to work. We all take the

Metromover loop for meetings in the downtown and Brickell areas. Q. Is that emphasis on transit something new for downtown? Pelham: As a Miami history buff, my response is yes and no. Back in the 1926, a front-page story in The Miami News declared that “Miami’s traffic jams make the worst congestion of London or New York seem like child’s play.” It’s interesting that almost 100 years later, we all lament traffic as we did in the 1920s. And today’s solution is the same as it was then: bicycles, trolleys, buses and trains. From the late 1940s through the early 2000s, those transit options were neglected in favor of the personal automobile. Now, we’ve introduced these other forms of transit including using Uber, Lyft or taxis when necessary.

heading out to sea. Bayfront Park is already a popular “get-away” lunch spot, offering a quiet oasis in the midst of downtown’s office towers. Both locals and visitors enjoy Bayside Marketplace, and I would not be surprised to see an enhanced water taxi service there in the next few years. Q. What about beyond the bayfront? Pelham: Our cultural institutions will continue to grow, like the innovative programming offered by the MDC Museum of Art + Design (MOAD) in the landmark Freedom Tower. The new All Aboard Florida downtown train station will be an interesting destination itself with restaurants, stores and services for downtown workers and residents.

Q. Will transit use continue to grow? Pelham: It’s exciting to watch the progress being made on All Aboard Florida’s Brightline private rail service. By next year, it should be possible to commute by train along the U.S. 1 corridor, as well as the Tri-Rail service along I-95. That means you could work in downtown Miami and ride the train from Fort Lauderdale or West Palm Beach every day – just like millions of commuters who rely on rail transit in the New York City region.

Q. What about downtown’s office and retail markets? Pelham: Demand for office space has broadened with Miami’s growth as a hemispheric technology hub. Along with the professional firms and corporate offices, we have seen the arrival of business incubators, shared workspaces and other collaborative uses. Older buildings are being redeveloped and in some places restored for these new uses and downtown’s growing Millennial workforce. As for retail, the city’s ongoing redevelopment of Flagler Street corridor and the mixed-used Miami Worldcenter will bring renewed vitality to this sector as well.

Q. What other trends do you see in the downtown lifestyle? Pelham: I think the city’s bayfront will really come to life. For decades, this has been an underutilized “green” asset. To the north, the Perez Art Museum Miami and the soon-to-be-completed Frost Science Museum will attract more downtown residents, office workers and visitors to Museum Park. You can eat lunch near the water, enjoy the public art works and see the cruise ships

Q. Any other thoughts? Pelham: We believe downtown is the ideal headquarters location for TotalBank, which has served Miami-Dade County for 42 years. I like to think of us as the “305 bank” because we are so closely tied to this community. TotalBank is one of the strongest banks in the nation with a deep commitment to serving the commercial and personal banking needs of our clients as our community heads into the future.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

CALAMOS WEALTH MANAGEMENT

Calamos Wealth Management’s South Florida-based Senior Wealth Advisors Richard A. Gotterer, Joseph P. Nader and Scott A. Poulin

CASH BALANCE PENSION PLANS THE CHANGING LANDSCAPE OF RETIREMENT PLANNING

A RECENT STUDY by Willis Towers Watson highlighted that more Americans are planning to retire after reaching age 65 than ever before. As the baby boomer generation ages, the media has focused on that age group’s inability to successfully prepare for retirement. In 2014, more than 46 million people turned age 65. However, the average amount saved for retirement for 55 to 64 year olds was only $104,000. Business owners and entrepreneurs suffered serious financial setbacks during the 2008 financial crisis. Eight years later, many have recovered and are now looking for ways to improve their financial security and are focusing on maximizing their retirement plan savings. Cash balance pension plans have changed the landscape of retirement 30

planning for many business owners, allowing them to maximize or catch up on retirement savings, reduce taxable income, and take advantage of asset and creditor protection strategies. What is a Cash Balance Plan? First introduced in the mid-1980s, these plans were used sparingly and didn’t catch on until certain legal issues were clarified in the 2006 Pension Protection Act, 2010 IRS Cash Balance regulations and 2014 Final IRS Cash Balance regulations. According to the Kravitz 2016 National Cash Balance Research Report, during the 14 years from 2001 to 2015, cash balance plans soared 1,035 percent, had a combined value greater than $1 trillion, and represented more than 29 percent of all

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

defined benefit plans. Cash balance pension plans are employer-sponsored retirement plans that incorporate elements from traditional defined benefit plans along with the flexible characteristics of defined contribution plans (401k). These hybrid plans provide the ability for high-income business owners and partners in professional service firms to save upwards of $261,000 annually based upon demographics and plan design. Similar to traditional defined benefit plans, employers make contributions for the benefit of each employee. However, instead of using an actuarial rate of return, the employer makes two contributions for each employee. The first is a pay credit, which is either a fixed amount or a percentage of annual compensation. The

CALAMOS WEALTH MANAGEMENT

second contribution is an interest credit rate (ICR), which is typically set to equal the actual rate of return of the portfolio, thereby reducing the investment risk of market volatility and the possibility of having an underfunded plan. Another defining difference is that a hypothetical account is maintained for each employee. Contributions are recorded into these accounts, providing employees with the ability to understand their benefits as a hypothetical account balance, similar to a 401(k) account, instead of a specific monthly benefit upon retirement. Benefits of Cash Balance Pension Plans • Not all participants are equal. Plans can be designed to maximize benefits to owners, while minimizing contributions to other employees. Since contributions are age-based, older business owners may be able to contribute as much as $261,000 annually and reap upwards of 90 percent of the benefits of the plan. • Income tax reduction strategies. Contributions to retirement plans reduce your taxable income dollar for dollar. With a 39.6 percent maximum federal tax bracket, along with additional taxes on earned income over $200,000 ($250,000 married, filing jointly) for Medicare and Obamacare surcharges, the income tax savings for high-income earners could be significant. • A sset protection. All qualified pension plans are protected under the Employee Retirement Income Security Act of 1974 (ERISA). The ability to accumulate large sums makes these plans particularly attractive to doctors, lawyers and entrepreneurs. • E liminate the potential of an underfunded pension liability. Regulatory

revisions allow the plan’s ICR to equal the plan’s actual rate of return, thereby eliminating a plan’s ability to be underfunded due to market declines. The plan’s assets must be adequately diversified. • Federal guarantee. As with all pension plans, cash balance plans can be guaranteed by the Pension Benefit Guaranty Corporation for a nominal fee. • Portability and value. IRS regulations allow for a maximum accumulation of $2.5 million. After a three-year vesting period, account values can be rolled over to an Individual Retirement Account (IRA) or a lifetime annuity can be purchased. Knowing the market value of your retirement benefit makes planning more meaningful and easier to understand. Is a Cash Balance Plan Right for You? While some Fortune 500 companies have converted their traditional pension plans to cash balance, small and medium-sized businesses have contributed most to the recent popularity of these plans. Companies with 100 employees or less now represent 91 percent of all cash balance pension plans. The largest growth segment has been with businesses employing less than 25 people. Cash balance plans are ideally suited for businesses that have consistent cash flow and are highly profitable. Based on the 2016 Kravitz report, more than 50 percent of all plans are represented by doctors/dentists (37 percent) and lawyers, accountants and financial services firms (17 percent). A variety of other businesses make up the remaining percentage. To maximize their effectiveness, more than 95 percent of these plans are combined with 401(k), profit sharing and other defined

contribution plans. This allows for plans that are maximized for the benefit of the business owner, while creating an effective tool to help recruit and retain employees. Global uncertainty from Brexit and the presidential elections, along with the direction of interest rates in the U.S. and negative interest rates in many of the international markets is anticipated to keep market volatility elevated. Cash balance pension plans represent an opportunity for business owners to take advantage of enhanced tax savings, maximizing their retirement savings and protecting their assets. Because all qualified retirement plans are subject to a myriad of regulatory issues, we recommend engaging a qualified third-party actuary to design a plan to meet your needs. Calamos Wealth Management’s South Floridabased Senior Wealth Advisors Richard A. Gotterer, Joseph P. Nader and Scott A. Poulin each bring more than 25 years of experience in providing wealth management and advisory services to affluent individuals, families and foundations in the greater Miami/South Florida area. The firm can be contacted at 220 Alhambra Circle, Suite 300, Coral Gables, FL 33134; 305.699.0008; www.calamoswealthmanagement.com. Sources: Willis Towers Watson; U.S. Department of Health and Human Services – Administration on Aging (AoA); U.S. Government Accountability Office; Kravitz 2016 National Cash Balance Research Report Opinions and estimates offered constitute our judgment and are subject to change without notice. This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, accounting, legal or tax advice. We believe the information provided here is reliable, but do not warrant its accuracy or completeness. Calamos Wealth Management, LLC is neither a law firm nor a certified public accounting firm and no portion of the content should be construed as legal or accounting advice.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

GUEST CONTRIBUTORS

FRANCHISOR LIABILITY FOR TERRORISM ABROAD By Andrew C. Hall and Matthew P. Leto

WHEN U.S. CITIZENS travel abroad, it is not uncommon to consider the potential for terrorist activity at their destination. For instance, recent events in France and Belgium demonstrated that the risk for terrorism has not diminished since 9/11. As a result, consumers naturally look to familiar hotel chains, such as Marriott and Hyatt, in order to alleviate their concerns under the assumption that these large corporations have protective measures in place to ensure the safety of their patrons. However, what these large hotel chains do not advertise is that many of their properties are owned by independent third party operators pursuant to a franchise agreement. Despite the fact that their names are emblazoned on the building, franchisor involvement related to terrorism security may be minimal.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

Due to the protections the law affords franchisors using this arrangement, consumers are sometimes left without a remedy against the franchisor for acts of terrorism that occur abroad notwithstanding the franchisorâ&#x20AC;&#x2122;s presence in the United States. Even where it can be shown that franchisors are involved in aspects of their franchiseeâ&#x20AC;&#x2122;s business operations, plaintiffs will usually be faced with motions to transfer the entire matter to the location of the attack on the basis of forum non conveniens. Fortunately, the trend in recent years has been to allow cases to remain pending in the United States based upon the obvious difficulties that would exist relative to safety and the emotional trauma that would occur if the family member of a terrorism victim was required to return to same location of the

horrible act that took the life of or injured their relative. In DiFederico v. Marriott Intern., Inc., 714 F.3d 796 (4th Cir. 2013), a U.S. government contractor was killed after a bomb exploded at the Marriott Islamabad. The district court initially granted Marriott’s request to have the matter transferred to Pakistan. On appeal, the Fourth Circuit reversed and found that “the fear and emotional trauma involved in travel to Pakistan for a trial concerning such a politically charged event would give rise to a bevy of logistical concerns and expenses.” Id. at 805. The court concluded that “it would be a perversion of justice to force a widow and her children to place themselves in the same risk-laden situation that led to the death of a family member.” Id. The DiFederico opinion was based upon the Second Circuit opinion in Guidi v. Inter-Cont’ l Hotels Corp., 224 F.3d 142 (2d Cir. 2000), wherein that court reversed the district court’s decision to dismiss a case based upon forum non conveniens arising from a terrorist shooting at the Inter-Continental Hotel in Egypt. The Guidi court also determined that “justice is best served [ ] by acknowledging the unique and heavy burden placed on Plaintiffs if they are required to litigate in Egypt.” Id. at 147. Although courts appear to be sensitive to the safety and emotional concerns surrounding the location of a lawsuit, overcoming this initial hurdle should hardly be considered a complete victory for terrorism victims. That is because when analyzing a franchisor’s responsibility for injuries that occur on the premises of a franchisee, courts throughout the United States employ and “instrumentality based approach” and will find liability only where the franchisor retains control of the operations of the franchisee or control of or the right to control the specific instrumentality of the harm. See e.g. Allen v. Greenville Hotel Partners, Inc., 409 F. Supp. 2d 672, FN 3 (4th Cir. 2008) (“A Franchisor may operate a franchise establishment or control the instrumentality at the franchise establishment that causes injury and thus owe a duty to patrons of the franchise.”); Bartholomew v. Burger King Corp., 2014 WL

1414975 at *4 (D. Haw. 2014) (adopting an instrumentality focused franchisor liability test); Toppel v. Marriott Intern., Inc., 2008 WL 2854302 at *10 (S.D.N.Y. 2008) (denying franchisor, Marriott’s motion for summary judgment, holding that question of fact existed as to the extent by Marriott exercised control over the instrumentalities that gave rise to plaintiff’s injuries). In light of that standard, franchisors regularly assert that they do not assist their franchisees in any meaningful way in the area of security and that any standards imposed are merely suggestions. In order to rebut that proposition, a plaintiff will logically require information from the franchisee. Obtaining this information can sometimes be difficult, if possible at all. For example, if the particular country where the franchised property is located is not a signatory to the Hague Convention,

a plaintiff will face incredible obstacles to compelling the production of records that may never be overcome. While that is occurring, the franchisor will take the position that it has no control over the franchisee and cannot obtain the documents through other means. This puts a premium on the plaintiff’s lawyer’s ability to secure records from the franchisor and other third parties in order to identify the level of control exercised over a franchisee’s security features. If the records demonstrate franchisor oversight and control, the plaintiff will have a strong case. If not, the plaintiff’s case against the franchisor will fail. In most cases, franchisors exercise extensive control in the area of terrorism security in order to protect its patrons and the reputation of its brand. Circumstances where this does not occur are more of an aberration.

Left: Andrew C. Hall is the founder and managing partner of Hall, Lamb and Hall, P.A., a Miami-based law firm specializing in complex corporate, business, and securities litigation. Right: Matthew P. Leto is a commercial litigator who handles business, real estate, personal injury and appellate cases. The firm can be contacted at 2665 S. Bayshore Dr., PH 1 Miami, FL 33133 (305) 374-5030 www.hlhlawfirm.com

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

GUEST CONTRIBUTORS

FROM YOUR TRUSTED ADVISOR - A GUIDE TO SUCCESSFULLY STARTING YOUR FIRM By Mey-Ling Perez

THERE COMES A POINT in time when experienced attorneys consider breaking out on their own or with partners. This can be an exciting yet daunting decision. Surrounding yourself with a team of trusted advisors, creating a detailed business plan and budget, and obtaining adequate financing are important steps that will ease the road to success. If you have spent some time thinking about this, or have already decided to take the step, this article will provide you with factors to consider during the process. Select Trusted Advisors Just as with any other venture in life, you are as successful as the company you keep. A key step prior to launching your firm is

to surround yourself with a valued team of experts for guidance. Your team of trusted advisors should include a Certified Public Accountant (CPA), an insurance agent, a banker, and a business lawyer. An experienced real estate agent will also be important early in the process to help you identify the proper office space. Attorneys may be hesitant to hire outside counsel to handle the business aspect of incorporating the new firm, but a properly drafted operating agreement in the beginning can be a lifesaver down the road. The drafting of these documents should be entrusted to an unbiased party. Take time early in the process to discuss with these experts what type of operating structure best suits you and can shield you

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from personal liabilities. It is also very important to select a structure that addresses any foreseeable tax consequences. Expense and Revenue Forecasts As you navigate down the road to starting your firm, you should also be prepared to answer some important questions: •H ave I created an accurate budget detailing start-up and operating costs? • Do I have a realistic revenue forecast based on the existing and expected pipeline? • Do I have sufficient capital saved for equity needs? •C an I sustain my lifestyle as I wait for operations to ramp up without the trusted paycheck?

Creating a budget can be an overwhelming task for most, yet critical to the success of your firm. Important items to consider when creating a budget are leasehold improvements for office space, capital expenditures for computers and software, furniture, and operating expenses. Operating expenses include rent, salaries, insurance and utilities. Personal living expenses during this process need to be considered, given that your income will be unknown over the first few months of the new venture. It’s recommended to have savings to sufficiently cover 4-6 months of living expenses (not including the capital set aside for the business). When creating your budget and forecast include current cases, also factoring in pipeline and client billing. Forecasts for the first and second year are important, as they will provide you with a clear picture of your projected profitability. Cash Flow Management and Proper Financing In order to provide adequate cash flow for your practice, as well as peace of mind, carefully discuss the financing options available to you with your banker. We recommend new firms obtain a term loan to finance equipment cost. Typically, the term loan will help finance up to 80 percent of these costs and will amortize over three to five years. When seeking financing, keep in mind to tie long-term capital expenditures with longterm debt (long-term debt being defined as longer than 12 months). It’s important to match the useful life of the asset with the time period of the financing. A separate loan should be created for start-up costs. Banks will finance anywhere between four to six months of start-up costs. The loan should be provided on an interestonly basis for the first six months (the interestonly nature is to be mindful of cash flow demands). The loan should then amortize over the remaining 54 months. The first two financing tools listed above tackle the capital and start-up costs. However, the daily management of working capital needs is critical, and can be addressed with a line of credit. This line should be revolving in nature to allow you the flexibility and

Mey-Ling Perez is Senior Vice President, Private Banking and Wealth Management at Sabadell United Bank. She is responsible for assisting clients with private and commercial banking needs, as well as investment and trust services. Perez can be reached at 305-376-2469 meyling.perez@sabadellbank.com

encourage the discipline of paying down the debt as revenue is generated. To have a speedy turn-around on the financing request, you will need to have following financial information readily available: •B usiness plan, including expenses and revenues forecasts • Current personal financial statement • Three years of personal tax returns •D epending on the type of law you practice, you may be asked to provide an aging of accounts receivable or a case list

At Sabadell we have more than 35 years of expertise helping attorneys establish and grow their firms. We specialize in assisting law firms with both their lending and account needs. Our ability to craft customized lending solutions have made us a key player in the local market. Our firm is not only able to provide the financing for the start-ups, but also analyze your personal financial situation using a holistic approach, which includes trust and estate planning, wealth management and private banking. Your success is our success.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

GUEST CONTRIBUTORS

LIVING, WORKING AND BUYING REAL ESTATE IN ONE OF THE MOST EXCITING MARKETS IN THE WORLD By Ana M. Olarte

OUR BEAUTIFUL BEACHES, Art Basel, food and wine festivals, and our warm weather are a few reasons why people are attracted to Miami. As the 2015 year-end approached, MiamiDade County was on pace to break its alltime annual single family home sales record for the 5th consecutive year.1 Single family home transactions were expected to reach

14,600 transactions for 2015 (the record is 13,521 set in 2014).1 Also, June 2015 was a record month at 1,390 transactions (previous record was June 2005 at 1,317).1 Miami, as an international hub, experiences a huge demand for real estate. We continue to be in one of the top markets in the United States for international buyers. Most of those foreign buyers bring cash

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

offers, making it more challenging for others in competitive purchasing situations. Miami cash transactions are double the national average at 48.7% of total closed sales in September 2015. Condos comprise an even more significant percentage of cash purchases at 62.4% compared to 33.8% of single family home sales.1 A market like this can present many

challenges to a buyer. I personally have a unique perspective from a home buying standpoint. While I lived in Colombia, my family owned a condo in Sunny Isles Beach as an investment property that was used for family vacations. Now, I am a proud citizen and U.S taxpayer with a salary (Uncle Sam is happy about that). While I have W-2 income, my spouse is self-employed, generating a significant portion of his income from his business. I work with many members of the legal community and their clients to help them with their residential financing needs. Based on my experience as a private banker, there are four key items when looking to obtain real estate financing. 1. Non-U.S. taxpayer loans. It’s hard to believe that although Miami is an international hub and a major driver of commerce in Miami-Dade, real estate financing for non-resident aliens (NRAs) is not readily available. Some lenders provide this type of financing at a higher interest rate with a lower loan to value ratio. Most importantly, be sure you or your client has the proper guidance on the titling of the property to limit U.S. tax exposure on death, which could be as high as 40% of the fair market value of any personally held real property interest. 2. Which type of loan is best for you? Traditional, 30-year fixed-rate loans are most commonly available at large regional and national banks looking to provide financing for loans under $1 million. The guidelines are more rigid with less flexibility and they do not deviate from their requirements. A non-W2 individual will most likely not fit the profile for this type of financing. Buyers tend to assume that the longer the term (even if they are paying a higher interest rate) the better the loan. But in fact that might not be the best option. A statistic to bear in mind: long term mortgages are refinanced every 7.5 years (in the last five years this has declined to 6.2 years).1 3. Do you have a complex financial picture? If the answer is yes, as it is in my case due to

filing jointly, a portfolio lender will be your best alternative, especially if you are looking to obtain financing for loans over $1 million. There are several options available for portfolio loans. The most common programs are what lenders refer to as adjustable-rate mortgages (ARMs). These programs offer rates fixed for a determined amount of time such as 3, 5, 7 or 10 years all amortized over 30 years, Additionally the lender will have some options such as 15, 20 or 30 year fixed available. The longer the fixed rate, the higher it will tend to be. Most of these loans are offered through local banks that know their clients, have local decision making, and usually do not sell the loans in the secondary market. This is a perfect option for individuals who (1) own several real estate properties, (2) have tax returns more complicated than a 1040, (3) need primary residential construction loans, or (4) for those individuals looking to obtain financing for “out of the box” deals.4. Find the right lender. When looking to obtain financing, it is important to ask the lender various questions to determine if they are the right fit for you. What is the average size loan? Are decisions made locally? Are there any additional benefits for having a full banking relationship with that lender? Depending on your profession, there are several financial institutions that have professional programs available for attorneys, doctors and CPAs. In some cases, those programs provide the borrower with loan to value or rate incentives. Find a lender who will be helpful and available to you post-closing. You or your clients might want to recast your loan by making a significant pay down to principal or simply have an escrow situation that needs to be addressed. I worked with a professional a few years ago who insisted on doing a jumbo loan at a bank that focused primarily on 30-year fixed loans. The lender sold them to a captive mortgage company out of state. A few years into the loan, the owner had a pipe leak that damaged his wood floors and had to get them replaced. After weeks of dealing with the insurance company, he received a check for $10,000 payable to him and the lender.

Ana M. Olarte is Senior Vice President, Team Leader Private Client Group at TotalBank. She can be reached at 305-476-6161 aolarte@ totalbank.com

Although he knew several employees of the bank, they advised him that his loan was sold and he needed to call an 800 number and deal with the new mortgage company out of state. After several weeks of dealing with aggravation, finally someone agreed to endorse the check, only on the condition that he open an escrow account for the $10,000 check and agree to “floor inspections.” It is important to find the right lender for you — one that will be able to understand your finances and provide you with the right program that fits your financing needs. Find a lender who will facilitate and make the process of buying a new home a pleasant experience. Most importantly find the lender who will be as eager to help you once your loan closes. 1

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

GUEST CONTRIBUTORS

HOW NEGLIGENT SECURITY CASES SAVE FLORIDA’S ECONOMY By John Elliott Leighton

WHAT HAPPENS WHEN the weather begins to cool off up north? Tourists grab their shorts and sunglasses and flock to South Florida. Hotels fill. Rental cars clog the roadways. Some visitors often leave one thing home when they travel: vigilance. That’s because resorts, cruise ships, bars and hotels encourage vacationers to let loose and leave their worries at home. It is the mainstay of many of the advertising campaigns.

When our tourists let their guard down, they do so in a place they have been led to believe is a safe and secure. After all, aren’t all those ads for resorts filled with happy people relaxing, partying and living the good life? So the resort must be taking care of those risks that would pose a threat to the unsuspecting visitor. Or maybe not. Visitors are ideal targets for crime. They are unaware of their surroundings, often venture to places where locals would avoid,

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

carry cash and valuables, and rarely return for criminal prosecutions even if the perp is caught. And we have a target-rich environment for criminals: Every day in Florida there are 240 violent crimes, including 27 forcible sexual assaults and 65 robberies. In reality, security is an expense to hotels, malls, shopping centers, apartment complexes and cruise lines. They don’t see direct revenue from the placement of security guards, monitored video feeds, enhanced lighting,

limited access, explosion-resistant barriers, or any of the many possible ways to improve security and make the premises safe. Because negligent security cases are premises liability actions at their core, it’s always a good reminder to look at what the law requires. A property owner owes a duty of reasonable care to its visitors to maintain its property in a safe condition and to eliminate known hazards or, if the hazards cannot be eliminated, warn of them. The same law applies to hazards from violent criminal acts. We have learned a lot from several decades of premises security litigation about how to create reasonable crime deterrence. We no longer live in a time when the presence of uniformed security is an aberration. Today’s commercial property is likely to have some security considerations, especially if the owner or business has done reasonable due diligence. Negligent security litigation provides the best financial incentive for businesses of all kinds to consider and implement security measures to protect visitors and employees. If not for the potential of a substantial verdict (and perhaps the attendant publicity), many businesses would choose not to spend on security, since it creates no direct revenue. This is why negligent security cases are so important. Not just for the litigants, but also for society and – surprisingly - the tourism industry. Without the potential risk of this litigation, businesses would be tempted to reduce or eliminate their security budgets. There would be little incentive to spend resources on something that provides no revenue and in most cases is invisible. Yet a rash of tourism-related incidents could damage or destroy tourism. Forget the Zika scare, one only needs to recall what happened when criminals figured out that all Florida rental cars had license plates that began with “Y” or “Z.” Tourist-targeted robberies became the source of national media attention, which didn’t paint South Florida in a positive light. In some countries tourists were warned about coming to Florida. Tourism decreased and with it so did substantial revenue. That is money lost not only from the tourism behemoths but also the working people who supply resorts

John Leighton, Esq., is the founding partner of Leighton Law, P.A., a trial law firm in Miami and Orlando. Mr. Leighton is a board certified trial lawyer whose practice focuses on representing catastrophically injured victims of negligence, crime and medical mistakes. 305-347-3151. www.Leightonlaw.com. Email: John@Leightonlaw.com.

with their most important resource: labor. So in a sense negligent security cases are helping support the most important element in Florida’s economy. Without tourism, the Sunshine State would be relegated to building factories that pollute, or would have to consider (gasp!) an income tax. By providing an incentive for the tourism industry – as well as all businesses – to consider and implement

reasonable security, we not only help protect our visitors, we support Florida’s lifeline industry. An intended byproduct is that everyone in Florida benefits. Residents and guests are just a little safer when they walk into that hotel, mall or apartment complex when there is competent security. The state secures its largest industry and snowbirds once again flock to the warmth of our area.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

GUEST CONTRIBUTORS

ADVISING YOUR CLIENTS ON PHILANTHROPY: CHARITABLE CONTRIBUTION OF PERSONAL RESIDENCES By Stephen C. Lande

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

WILL ROGERS ONCE said, “Don’t wait to buy real estate, buy real estate and wait.” More than three in five Americans own their own home, and a significant subset of them also own second homes in sunny climes like South Florida. With as much as a quarter or more of their assets tied up in real estate, in one form or another, the charitable giving possibilities for your philanthropic clients certainly merit consideration. This article will discuss the charitable contribution of personal residences – homes, second homes or condominiums. For the sake of this discussion, we’ll assume the property hasn’t been depreciated, is owned free and clear, and doesn’t present any environmental concerns. Of course any such property held for more than a year qualifies for a charitable income tax deduction at its current fair market value of up to 30 percent of the donor’s adjusted gross income in the year of the gift. Tax on any capital gain is also avoided, and any unused deduction may be carried forward for up to five additional years. Note that the charitable income tax deduction for the same contribution to a private foundation would be limited to the donor’s cost basis. Since this would be a gift of a non-cash asset with a valued in excess of $5,000, a qualified appraisal (as defined by the IRS) would be required to substantiate the deduction. Gifts of real estate can have tremendous utility for your clients. The most obvious use of real estate for philanthropy is the outright contribution. Many charities are willing to accept contributions of appreciated real estate, sell the property and apply the proceeds of sale to major or capital commitments, endowments or even donor-advised funds. Your clients may find that funding their philanthropy in this manner may streamline their planning. A philanthropic couple who have lived in their home for many years, raised their family, seen the home appreciate in value dramatically, and now decide to relocate or downsize may see significant advantage in contributing the property directly to charity. Real estate can also be used to fund charitable remainder trusts. A charitable remainder trust is an irrevocable trust that

provides an income stream to the donors or others for life or a term of up to 20 years based on the value of the property contributed to it. At the end of the donors’ lives or the term of years, the remaining balance in the trust passes to charity. Real estate and any appreciated property contributed to a charitable remainder trust can be sold by the trust free of tax, including capital gains tax. In addition to the income stream, which, with the capital gain untaxed, can be significant, the donors also receive a charitable income tax deduction for the value of the portion of their gift that will eventually go to charity as determined by IRS formula. With a charitable reminder trust, even the fact that real estate may not be readily marketable may become manageable. In addition to outright contributions, real estate is somewhat unique in that partial interests can be donated. This feature allows the donor to transfer property to charity now but retain ownership of the property for life or a term of years. Suppose your clients have a getaway condo vacation home in Naples that they have owned for many years. Their children live elsewhere and have no interest in the property, so the clients are considering donating the condo to charity at death. They could enter into a formal agreement with a charity to make the gift now, retain the right to use the property during their lifetime in accordance with the agreement, and receive a present charitable income tax deduction for the value of the remainder interest as determined by IRS formula. While they would agree to maintain the property as they no doubt would have done anyway, their use and enjoyment of it would be otherwise unaffected. After a few years they could even decide to turn the property over to the charity early and receive an additional charitable income tax deduction. With any gift of real estate, you can be sure the charity will be looking out for environmental, valuation and marketability issues. You must also remember that gifts of appreciated real estate, like any other charitable contribution for which a charitable income tax deduction will be sought, must be irrevocable. Few charities have the expertise in-house to deal with gifts of real estate but

Steve Lande is director of The Foundation of the Greater Miami Jewish Federation and serves as the Greater Miami Jewish Federation’s Authorized House Counsel. Prior to joining the Greater Miami Jewish Federation, he directed the Jewish Federation of Greater Pittsburgh’s endowment program for 18 years. A native of Iowa, Lande earned a law degree from Drake University and practiced law in Des Moines before joining the professional staff of the Pittsburgh Jewish Federation.

most charities that will accept gifts of real estate have a set of gift acceptance policies in place to guide them through the process. They may also have a volunteer committee to oversee the acceptance and disposition of these gifts and will certainly seek the advice of skilled professionals as necessary. The resources of The Foundation of the Greater Miami Jewish Federation are available to you and your clients, in complete confidence and without obligation, as you consider these and the many other possibilities for the charitable contribution of real estate. These gifts may offer your clients the opportunity to fulfill their charitable objectives in a tax-wise manner, inspire and engage the next generation of their families and create a lasting legacy. For more information, please contact Foundation Director Steve Lande at slande@gmjf.org, or at 786-8668623, or consult JewishMiami.org.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

PROFESSIONAL PROFILES

MALCOLM W. BROWN SENIOR VICE PRESIDENT, WEALTH MANAGEMENT DIRECTOR

MARTA FERNANDEZ SENIOR VICE PRESIDENT, WEALTH MANAGEMENT & TRUST DIRECTOR

SABADELL UNITED BANK 1111 BRICKELL AVENUE, SUITE 2910 MIAMI, FL 33131 305-347-4172 MALCOLM.BROWN@SABADELLBANK.COM WWW.SABADELLBANK.COM

SABADELL UNITED BANK 1111 BRICKELL AVENUE, SUITE 2910 MIAMI, FL 33131 305-376-2470 MARTA.FERNANDEZ@SABADELLBANK.COM WWW.SABADELLBANK.COM

Malcolm W. Brown is Senior Vice President and Director of Wealth Management for Sabadell Bank & Trust in Miami. With over 25 years of experience in the investment management and private banking industry, he is currently a portfolio manager and is responsible for making the final investment decisions for a fund - or asset-management vehicle. Brown began his career with Merrill Lynch and moved on to work as a financial advisor with Northern Trust, a portfolio manager with Fiduciary Trust of New York, and CIO and portfolio manager with JDM Partners. A Miami native, Brown graduated from Florida International University’s School of Business with a degree in Finance and International Business.

ADAM S. HALL BUSINESS LITIGATION

ANDREW C. HALL BUSINESS LITIGATION

HALL, LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 305-374-5030 ADAMHALL@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

HALL, LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 305-374-5030 ANDYHALL@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

Adam S. Hall handles matters involving complex corporate and business litigation. In addition to commercial litigation, Hall focuses his practice on cases involving disputes between businesses, professional malpractice, securities, real estate, and probate disputes. Recognized for his relentless advocacy on behalf of clients, he has litigated cases involving broker-dealer disputes, will contests, breach of fiduciary relationships, construction disputes, and malpractice disputes involving law firms or accounting firms. Beyond his legal work, Hall is actively involved in the South Florida community. Hall currently serves on the Greater Miami Jewish Federation South Dade Branch Board of Directors. Hall has also served on the board of directors for the United Way of Miami-Dade County and has been a member of the executive committee for the United Way’s Young Leader division, including service as its chairman. Hall also maintains strong ties to the University of Florida, where he earned his law and bachelor’s degrees with honors. He is currently a member of the University’s Levin College of Law Alumni Council and serves on the alumni advisory board for Florida Blue Key, of which he was previously a member. Hall Lamb and Hall was recently named one of ten firm’s on the National Law Journal’s Litigation Boutiques Hot List.

Marta Fernandez is Senior Vice President, Wealth Management & Trust Director at Sabadell United Bank. With over 40 years of experience in the banking industry, Fernandez is responsible for providing trust, wealth and advisory services to achieve the unique financial objectives of new and existing clients in Miami-Dade County. Prior to joining Sabadell United Bank, she was Senior Vice President and Head of Trust Operations & Trust Compliance Officer at Coconut Grove Bank. She spent the previous 33 years at SunTrust Bank, where she provided trust administration services to 300 fiduciary accounts and was directly responsible for 150 client relationships. Mrs. Fernandez attended Florida International University and is a graduate of both the FBA Florida Trust School in the University of South Florida and the ABA Graduate Trust School in Emory University.

SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

Attorney Andrew C. Hall has tried cases arising from some of the nation’s most significant historical events. From the Watergate trials in the 1970s to the Ohio savings and loan crisis in the late ‘80s, to the 2000 terrorist attack on the USS Cole, Hall’s trial skills are recognized as among the top echelon of litigators in the nation. Recently, Hall secured a $2.8 billion judgment on behalf of a Cuban expatriate for damages stemming from the continued terror attacks launched against his family by the Cuban government. He has been recognized as one of “The Best Lawyers in America” by Best Lawyers for over 10 years. Additionally, he is regularly featured in Super Lawyers and Florida Trend’s Legal Elite as among the top commercial litigators in the state. He has been recognized as a “Most Effective Lawyer” by the Daily Business Review for the past three years. He is AV rated by MartindaleHubbell, the highest independent peer-based rating available to an individual lawyer. Hall Lamb and Hall was recently named one of ten firm’s on the National Law Journal’s Litigation Boutiques Hot List.

PROFESSIONAL PROFILES

ADAM J. LAMB BUSINESS LITIGATION

JOHN ELLIOTT LEIGHTON PERSONAL INJURY/WRONGFUL DEATH

HALL, LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 305-374-5030 ALAMB@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

LEIGHTON LAW, P.A. 1401 BRICKELL AVE., SUITE 900 MIAMI, FL 33131 121 S. ORANGE AVE., SUITE 1150 ORLANDO, FL 32801 888-395-0001 WWW.LEIGHTONLAW.COM

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 MiamiDade 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.

MATTHEW P. LETO CORPORATE AND BUSINESS LITIGATION

HALL LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 MLETO@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

Matthew P. Leto is a commercial litigator who handles business, real estate, personal injury and appellate cases. He earned a bachelor’s degree in finance at the University of Central Florida and a law degree at the University of Miami. He is a member of The Florida Bar and other professional organizations. He has been recognized by the South Florida Legal Guide as a “Top Lawyer,” and by Florida Super Lawyers as a “Rising Star.” Hall Lamb and Hall was recently named one of ten firms on the National Law Journal’s Litigation Boutiques Hot List.

John Elliott Leighton has devoted his professional life to representing seriously injured people. Leighton is a personal injury trial lawyer and the founding partner of Leighton Law, P.A., with offices in Miami and Orlando. He specializes in catastrophic injuries and wrongful death cases. A board certified civil trial lawyer, Leighton has over 30 years of experience in litigating and trying serious injury and death cases throughout Florida as well as in Illinois, North Carolina, Wisconsin, Georgia, Texas, Kentucky, Indiana and New York. He is chairman of The Academy of Trial Advocacy, and chairs the Inadequate Security Litigation Group of the American Association for Justice. He has been selected for The Best Lawyers in America, Florida Super Lawyers (Top 100 in Florida), Florida Trend’s Florida Legal Elite, Orlando’s Legal Elite, and South Florida Legal Guide’s “Top Lawyers.” He is rated AV-preeminent by Martindale-Hubbell and 10/10.0 (“superb”) by AVVO.com. Selected for the Daily Business Review Verdicts Hall of Fame for wrongful death in 2015. He is the author of the two-volume text Litigating Premises Security Cases, and teaches lawyers extensively throughout North America.

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CABA GOVERNMENT RELATIONS DEFAMATION SOUTH FLORIDA LAW SCHOOLS

THE FATE OF THE MEDICAL MARIJUANA BUSINESS IN FLORIDA

PLUS FRANCHISOR LIABILITY, NEGLIGENT SECURITY, CHARITABLE CONTRIBUTIONS AND MORE.

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PROFESSIONAL PROFILES

JAIME ORTEGA, III EXECUTIVE VICE PRESIDENT, HEAD OF COMMERCIAL BANKING - FLORIDA SABADELL UNITED BANK 1111 BRICKELL AVENUE, SUITE 2910 MIAMI, FL 33131 305-376-2497 JAIME.ORTEGA@SABADELLBANK.COM WWW.SABADELLBANK.COM

REPRINTS? WE CAN HELP!

Jaime Ortega III is Executive Vice President, Head of Commercial Banking for Sabadell United Bank. His expertise and passion for results has been the key to his success within commercial and corporate banking in the South Florida market. Ortega graduated from the Georgia Institute of Technology (Georgia Tech), where he earned a Bachelor of Science degree in Industrial Management with a minor in Finance. Shortly thereafter, he began his banking career in 1994 with the Lloyds Bank training program. He later became a credit underwriter and eventually in 2003, a lender, working first at Regions Bank and then BankUnited. Ortega joined Sabadell in 2008 and has been head of the commercial banking department since 2014.

FINANCIAL EDITION 2016

CABA GOVERNMENT RELATIONS DEFAMATION SOUTH FLORIDA LAW SCHOOLS

JOHN W. ZEDER CORPORATE AND BUSINESS LITIGATION, INSURANCE

THE FATE OF THE MEDICAL MARIJUANA BUSINESS IN FLORIDA

PLUS FRANCHISOR LIABILITY, NEGLIGENT SECURITY, CHARITABLE CONTRIBUTIONS AND MORE.

PAGE 11

HALL LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 JZEDER@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

Jon W. Zeder is a trial lawyer and commercial litigator. He is also a Certified Mediator in the United States District Court for the Southern District of Florida, and is certified as a Circuit Mediator by the Supreme Court of Florida. Zeder is a Life Fellow of the American Bar Foundation and he is rated “AV” by MartindaleHubbell, the highest recognition given for professional excellence, skills, and integrity. Hall Lamb and Hall was recently named one of ten firms on the National Law Journal’s Litigation Boutiques Hot List.

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SOUTH FLORIDA LEGAL GUIDE FINANCIAL EDITION 2016

PERSONAL BANKING | COMMERCIAL BANKING | RESIDENTIAL LENDING | WEALTH MANAGEMENT*

For over 36 years Sabadell United Bank has provided financial and personalized banking services to the legal community. DWIGHT HILL, President of Sabadell United Bank

(305) 808.2168 | dwight.hill@sabadellbank.com | www.sabadellbank.com

Sabadell® is a registered mark of Banco de Sabadell, S.A. used by Sabadell United Bank, N.A., a subsidiary of Banco de Sabadell, S.A. Sabadell United Bank, N.A., is a member FDIC and an Equal Housing Lender. *Advisory services include advice on non-deposit investment products which are NOT A DEPOSIT - NOT FDIC INSURED - MAY LOSE VALUE – NOT BANK GUARANTEED – NOT INSURED BY ANY FEDERAL GOVERNMENT AGENCY. © 2016 Banco de Sabadell, S.A. All rights reserved.