Articles

We know you're busy, but sometimes you just have to take time to get up to speed on a particluar legal issue which may effect your business or your personal life. We've published the following articles with brevity in mind. Some of the legal issues addressed are general and some more specific. In some cases your questions may go beyond what the article offers. In those cases we suggest you contact the author directly for more information. The following articles on legal issues are for education only and are not intended as legal advice.

The sad truth
How business owners entering into divorce proceedings are financially impacted
Professionals: Jason R. Marks
Publication: Smart Business Miami
Date: January 31, 2008
Abstract: One of the sad facts of life for business owners — and corporate officers — is that divorces happen.

The perils within companies
How investors can be liable for their overreaching control of a company
Professionals: Jason S. Oletsky
Publication: Smart Business Miami
Date: January 4, 2008
Abstract: Question: What happens when a “stakeholder” — an interested board of directors, holding company, investor, private equity firm or hedge fund — oversteps its bounds and controls the day-to-day operation of a company?

Alternative dispute resolution
The myth that arbitration is always better, faster, cheaper
Professionals: Andrew P. Gold
Publication: Smart Business Miami
Date: November 27, 2007
Abstract: Most business people have had the mantra beat into their heads — arbitration is better, faster and cheaper.

Confidentiality in settlements
Are they worthwhile or worthless?
Professionals: Stuart R. Silver
Publication: Smart Business Miami
Date: November 5, 2007
Abstract: Corporations and public figures often settle lawsuits for the sake of confidentiality. In some of these instances, confidentiality provisions within the settlements are appropriate.

Courts Put “Dead Celebrity” Rights of Publicity in Limbo
Professionals: Leora Herrmann
Date: September 11, 2007
Abstract: District courts in New York and California sent a shock wave through the “dead celebrity” licensing industry in May, ruling in two separate decisions that Marilyn Monroe’s will did not pass her right of publicity to the residual beneficiaries of her estate. The rulings, which put in doubt the ownership interests of other deceased celebrities’ estates, have provoked a flurry of lobbying activity aimed at changing the state laws under which the courts’ rulings were decided.

Intellectual Property - Toys and Games - Recent Developments
Date: September 11, 2007
Abstract: Although Hasbro had two federal registrations for the mark “Memory,” MGA established through extensive evidence that that term is generic for the class of games at issue. Hasbro, Inc. v. MGA Entertainment, Inc., 2007 WL 2182128 (D.RI. July 31, 2007)

Intellectual Property - Music - Recent Developments
Date: September 11, 2007
Abstract: Woman sued for music piracy recovers $68,685.23 in attorney’s fees from recording companies. Capitol Records, Inc. v. Foster, Case No. 04-1659-W (W.D. Okla. July 16, 2007)

Intellectual Property - Pet Products - Recent Developments
Date: September 11, 2007
Abstract: Defendant’s patent for a seatbelt for pets riding in automobiles was invalid because the claims were both indefinite and obvious in view of prior technology. Hamilton Products, Inc. v. O’Neill, 492 F.Supp.2d 1328 (M.D. Fla. 2007)

Intellectual Property - TTAB Rules Amended - Recent Developments
Date: September 11, 2007
Abstract: Effective November 1, 2007, the U.S. Patent and Trademark Office is amending the Trademark Rules of Practice.

Intellectual Property - Automotive - Recent Developments
Date: September 11, 2007
Abstract: Harley Davidson’s use of the word “hog” for its motorcycle club was not generic, so Top was not entitled to summary judgment in defending its use of the mark “Hogs on the High Seas” for ocean cruises for motorcycle riders. H-D Michigan, Inc. v. Top Quality Service, Inc., 2007 WL 2200477 (7th Circuit, 2007)

Intellectual Property - Internet - Recent Developments
Date: September 11, 2007
Abstract: Ninth Circuit refuses to hold credit card companies vicariously liable for processing internet sales of pirated images. Perfect 10, Inc. v. Visa Intern. Service Ass’n, 2007 WL 1892885 (9th Cir. July 3, 2007)

Intellectual Property - Beauty Care - Recent Developments
Date: September 11, 2007
Abstract: Rush failed to show that Garnier’s use of “Long & Strong” along with its GARNIER FRUCTIS mark infringed Rush’s claimed LONG ‘N STRONG mark. Rush Industries, Inc., v. Garnier, LLC, 2007 WL 2114651 (E.D.N.Y. July 16, 2007)

Intellectual Property - Federal Circuit Reverses Underwater - Recent Developments
Date: September 11, 2007
Abstract: Reversing itself, the Federal Circuit held that proof of willful patent infringement entitling a plaintiff to enhanced damages requires at least a showing of objective recklessness. In re Seagate Technology, LLC, 2007 WL 2358677 (Fed. Cir. Aug. 20, 2007)

Practice Pointer: Parallel Markets – Three States With Additional Consumer Protection
Professionals: Jorge Espinosa
Date: September 11, 2007
Abstract: The parallel market, also known as the gray market, is the name given to the market that develops in goods sold outside of their authorized channels of trade, often referred to as gray goods.

Ipulse News and Views
Intellectual Property Law Newsletter
Professionals: Michael B. Chesal, Jorge Espinosa, Leora Herrmann, Steven I. Peretz, William R. Trueba, Michael E. Tschupp
Date: September 11, 2007
Abstract: Ipulse News and Views alerts you to newsworthy intellectual property developments throughtout the world.

Terms and conditions
How they govern liabilities in the transport of goods
Professionals: Francesca Russo
Publication: Smart Business Miami
Date: September 5, 2007
Abstract: On the reverse of nearly every invoice, bill of lading or airway bill, you will find “terms and conditions of service” involving that shipment. It’s imperative that corporate officers and heads of shipping know how the legal ramifications of these terms and conditions can result in large payments either to or from their company.

How to keep tabs on corporate intellectual property
Professionals: Michael B. Chesal
Publication: Smart Business Miami
Date: August 30, 2007
Abstract: Imitation, as the old saying goes, can be the sincerest form of flattery. But it also might mean liability for violating another’s intellectual property rights.

FLSA Exemptions Further Defined
Professionals: Michael T. Landen
Date: July 25, 2007
Abstract: Providers of companionship services employed by health care agencies are exempt from minimum wage and overtime protections.

Controlling Legal Costs
Steps you can take to keep the lid on legal bills
Professionals: Abbey L. Kaplan
Publication: Smart Business Magazine
Date: June 7, 2007
Abstract: Legal services never get less expensive, but it’s not impossible to keep them within a budget. Smart Business spoke with Kluger Peretz Kaplan & Berlin partner, Abbey Kaplan, about ways to control legal costs.

Federal rules on e-discovery
Professionals: Steve I. Silverman
Date: May 8, 2007
Abstract: In the past decade, there has been an evolution in electronic evidence used in business litigation. Advances in technology have caused laws to be outlined in regard to e-discovery.

Best practices in closing
Professionals: Dale S. Bergman
Publication: Smart Business Miami
Date: May 8, 2007
Abstract: "Closing” is simply a formal term to signify a transaction’s end. At closing, property being sold is transferred to the buyer, and the seller receives the purchase price.

Avoiding Trademark Licensing Pitfalls
Professionals: Leora Herrmann
Date: March 2007
Abstract: Successful trademark licensing enables both licensor and licensee to grow their businesses by taking advantage of the synergy between their companies.

Children and Patents
Professionals: Steven I. Peretz
Date: March 12, 2007
Abstract: You don’t have to be a grownup to come up with a valuable and useful patent idea. With the financial support and encouragement of their parents -- children have been awarded patents and taken their inventions to market.

Ipulse News and Views
Intellectual Property Law Newsletter
Professionals: Michael B. Chesal, Jorge Espinosa, Leora Herrmann, Steven I. Peretz, William R. Trueba, Michael E. Tschupp
Date: March 7, 2007
Abstract: Ipulse News and Views alerts you to newsworthy intellectual property developments throughtout the world.

Countering Counterfeiters
Professionals: Leora Herrmann
Date: March 1, 2007
Abstract: No manufacturer is immune to having its products counterfeited. “Everything from medication to mundane products like extension cords is being counterfeited,” says Leora Herrmann, a partner at Kluger, Peretz, Kaplan & Berlin P.L., whose blog (www.counterfeitlawblog.com) closely follows developments in counterfeiting law. “Nothing is exempt.”

Yes, you can still file bankruptcy.
Date: January 25, 2007
Abstract: The provisions of Bankruptcy Abuse Prevention And Consumer Protection Act (BAPCPA) went into full effect in 2005. Before its enactment there was great concern over a "means test" which debtors had to pass. This test does not apply to debtors whose debts are primarily business related. The test does not apply to those who make less then the state median income. In essence, studies post-BAPCPA enactment indicate only a minimal percentage of those who file bankruptcy would actually be effected (anywhere from 3-15% depending on criteria of the study.

When an Important Customer Files for Bankruptcy
Publication: The Disclosure Statement-- a KPKB Bankruptcy Department Newsletter
Abstract: Few things strike more fear in the hearts of business owners than word of a bankruptcy filing by a major customer who owes them a lot of money.

What debts are not discharged by bankruptcy?
Publication: The Disclosure Statement -- a KPKB Bankruptcy Department newsletter
Date: November 6, 2006
Abstract: Not all debts are discharged by bankruptcy. There are nineteen (19) categories of debts which are not dischargeable through bankruptcy.

Intellectual Property Licenses in Bankruptcy
Part ll: What Happens to the License When the Licensee Files for Bankruptcy?
Publication: The Disclosure Statement -- a KPKB Bankruptcy Department newsletter
Date: October 31, 2006
Abstract: To an extent, the Bankruptcy Code protects licensees when the licensor files for bankruptcy. This would include contracts under which the debtor is a licensor of a right to intellectual property.

The Effect of Reform Legislation on Rights of Debtors to File for Bankruptcy Relief
Date: October 20, 2006
Abstract: The concept of means testing is one of the most substantial changes in the new Bankruptcy Code. Its provisions may be found under the new section 11 U.S.C. §707(b).

Beer: The Oldest Trademarks Have Been Brewing a Long Time
Publication: IPulse -- KPKB Intellectual Property newsletter
Date: October 19, 2006
Abstract: Trademarks may have begun with a brew-ha-ha. Humans began brewing beer around 6,000 B.C. Taking that long history into consideration, it’s not surprising that the first trademark may have been used in association with the sale of beer.

Ipulse News and Views
Intellectual Property Law Newsletter
Professionals: Michael B. Chesal, Jorge Espinosa, Leora Herrmann, Steven I. Peretz, William R. Trueba, Michael E. Tschupp
Date: October 16, 2006
Abstract: Ipulse News and Views alerts you to newsworthy intellectual property developments throughtout the world.

Does a Florida Minority Shareholder in a Closely Held Corporation Owe a Fiduciary Duty to Fellow Shareholders?
Professionals: Francesca Russo
Publication: The Florida Bar Journal, Volume 79, No. 9
Abstract: You and your friends form ABC Corp. After a lot of hard work, effort, and time, ABC Corp. becomes very profitable and you and your friends make lots of money. So much money that one of your friends decides that being a 25 percent shareholder in ABC Corp., is not enough. Your friend decides to form another company that will compete against ABC Corp., while retaining his stock interest in ABC Corp. What is your recourse? Does your former friend, a minority shareholder, owe a fiduciary duty to ABC Corp., and the other shareholders?

Involuntary Bankruptcy Petition
What's A Creditor To Do?
Professionals: Deborah B. Talenfeld
Date: September 18, 2006
Abstract: When a creditor is owed money for an extended period of time, it may contemplate the filing of an involuntary case against the debtor entity. One of the questions that often arises is whether the creditor will be able to recover its costs incurred in connection with the filing of the involuntary petition. The answer is often yes.

Pension Reforms Bill Provides Relief to Employees of Airlines in Bankruptcy
Date: September 18, 2006
Abstract: On August 17, 2006, President George W. Bush signed into law a pension reform bill which he called the "most sweeping reform" of U.S. pension law since the enactment of the Employee Retirement Income Security Act (ERISA) in 1974.

Bankruptcy Court is without jurisdiction to stop flight attendant strike
Date: September 18, 2006
Abstract: On August 17, 2006, Bankruptcy Judge Allan Gropper (S.D.N.Y.) decided to permit Northwest Airlines Corp. (“Northwest”) flight attendants to strike the air carrier.

Debtor's Business Judgment is No Longer Standard
Date: September 18, 2006
Abstract: Under the BAPCPA, A debtor-in –possession’s business judgment is no longer the standard for court approval of Key Employee Retention Plans and severance agreement packages.

Protecting Certification Marks With Federal Registration
Professionals: Michael B. Chesal
Publication: IPulse, Intellectual Property Newsletter
Date: September 18, 2006
Abstract: Certification marks can make or break certain products. Many consumers rely on these marks, which function like a guarantee that the products on which they appear meet the standards set by the certifying agency. Without such a mark, the consumer will take a pass.

Commercial General Liability Policies and Intellectual Property Infringment Claims
How Your Client Can Keep You as Defense Counsel When an Insurance Carrier is Paying Defense Costs
Professionals: Steven I. Peretz
Publication: IPulse -- KPKB Intellectual Property Newsletter
Date: September 18, 2006
Abstract: Beginning in the mid-1990's, defendants sued for trademark and trade dress infringement were increasingly successful in having courts order their insurance carriers to cover the claims under the "advertising injury" clause of Commercial General Liability (CGL) policies.

Unrepaired, Uprepared
Special Report on Construction Law
Professionals: Andrew P. Gold
Publication: Daily Business Review
Date: June 15, 2006
Abstract: Who will be responsible for the damage to your property caused by your neighbor’s failure to timely complete repairs? How will insurance companies react to claims for further damage to existing properties that have not yet been repaired? What can you do to protect yourself? All of these questions are swirling.

Recording Your Trademark or Copyright with Customs
Ten Practice Pointers
Professionals: Jorge Espinosa
Publication: IPulse -- a KPKB Intellectual Property newsletter
Date: June 14, 2006
Abstract: In the case of trademarks, depending on how the mark is registered, US Customs and Border Protection can also take steps to stop parallel market goods from abroad; here are 10 practice pointers for recording your trademark or copyright with CBP.

Pros and Cons of Using Criminal Counterfeiting Laws to Fight Trademark Counterfeiting
Civil, Criminal or Both?
Professionals: Leora Herrmann
Date: June 2006
Abstract: Strategy Targeting Organized Piracy (STOP) is part of the government's growing effort to discourage the growth in the international sale and distribution of counterfeit goods. Small businesses can learn to work with the STOP program by taking advantage of rules and regulations .

Counterfeit Crackdown
Professionals: Leora Herrmann
Publication: WorldCity Magazine
Date: June 2006
Abstract: Increased crackdowns, stiffer sentences and a new federal law have made it significantly harder to traffic pirated goods in Miami.

Stop Counterfeiting in Manufactured Goods Act
Professionals: Leora Herrmann
Date: June 1, 2006
Abstract: President Bush signed the Stop Counterfeiting in Manufactured Goods Act, H.R. 32, on March 16, 2006, amending the federal criminal Trademark Counterfeiting Act, 18 U.S.C. §2320. The amended statute attacks counterfeiting at its heart and gives prosecutors the power to permanently disable pirating enterprises.

Registration and Protection of Trademarks Act (Summary)
Professionals: Michael B. Chesal
Date: May 2006
Abstract: A Summary of SB 2186 and HB 7107 – Trademarks

Intellectual Property Licenses in Bankruptcy
What Happens to the License When the Licensee Files for Bankruptcy?
Publication: The Disclosure Statement -- a KPKB Bankruptcy Department newsletter
Date: March 2006
Abstract: An automatic stay prevents most creditors, including intellectual property licensors, such as licensors of trade names and trademarks, from collecting against the debtor.

Bankruptcy: Limitations on Exemptions for Non-Immigrant Aliens
Abstract: Individuals residing in the United States pursuant to a temporary visa (non-immigrant aliens) who file for bankruptcy in Florida are not entitled to the favorable Florida exemptions, such as the homestead exemption.

Key Amendments To Preferential Avoidance Actions
Professionals: Eyal Berger
Date: February 2006
Abstract: Several additional obstacles regarding the ability of Trustees to successfully litigate and recover preferential transfers are in place resulting from the new Bankruptcy Code.

The WARN Act
Professionals: Michael D. Seese
Date: February 2006
Abstract: The WARN Act requires an employer of 100 or more employees provide 60-days written notice to employees of a plant closing or mass layoff. In this article Michael discusses the exceptions to the WARN act.

Can buyer sue for false representations and warranties after closing despite advance knowledge?
Professionals: Philippe Lieberman
Date: November 2005
Abstract: A buyer signs an agreement to purchase ABC Corporation or its assets. The lengthy purchase agreement contains numerous representations and warranties, or “reps and warranties” as they have come to be known. After signing the purchase and sale agreement, while conducting due diligence, the buyer discovers facts which render the representations and warranties false. Will the buyer waive all rights by closing with the knowledge that some or all the representations and warranties are false?

Practical advice for a powerful career in the law
Professionals: Howard J. Berlin
Publication: Daily Business Review
Date: October 2005
Abstract: A successful career in the law requires a constant development of skills and knowledge, as well as an understanding of business principles and an attention to the complexity and value of human relationships. Managing Director, Howard Berlin, shares his advice for new lawyers.

The Amazing Race (Excerpt)
Internal Competition May Drive Achievement, But It Can Also Sink Morale. Where Should Firms Draw the Line?
Professionals: Howard J. Berlin, Jill Schachener Chanen
Publication: ABA Journal
Date: August 2005
Abstract: The ABA Journal praises KPKB for its family-like culture that fosters high-quality legal work, teamwork, and happy employees. In the following excerpt from “The Amazing Race” Berlin discusses how KPKB created a friendly and productive environment by focusing on “collegiality and esprit de corps.”

Law Firm Management
Special Report: Retention & Recruitment Unscrambling the Poaching Phenomenon
Professionals: Howard J. Berlin
Publication: Daily Business Review
Date: June 7, 2005

Check 21: A Catch 22?
“The Check Clearing for the 21st Century Act”
Professionals: Michael S. Perse
Date: October 1, 2004
Abstract: As of October 28, 2004 banks are no longer returning all original cancelled checks with customers' monthly statements. Instead, you may have noticed the inclusion of what appear to be photocopied checks amongst your original checks. These are what are known as “substitute checks”, a new type of negotiable instrument created by "The Check Clearing for the 21st Century Act."

Parallel Market for Drugs Can Serve Consumers Well
Professionals: Jorge Espinosa
Publication: Miami Business Review
Date: April 27, 2004

Corporate Governance
The Imputation Rule and Its Exceptions: Dead or Alive?
Professionals: Bruce A. Katzen, Todd A. Levine
Abstract: Are company officials accountable for their negligence in verifying the accuracy of company books and records? This topic made headlines after the failure of corporations such as MCI Worldcom and Enron. Traditionally, an officer’s or director’s wrongdoing has been imputed to the company itself to prevent the company from suing third parties for misconduct initially caused by the company’s officers or directors. There were clear exceptions to this rule, until a Florida court retreated from the trustee exception to the imputation doctrine. This article briefly summarizes the evolution of the exceptions to the imputation rule in Florida and other jurisdictions, as well as the possible retreat from at least one of those exceptions.

An Overview of Four Key Employment Laws
Professionals: Michael T. Landen
Abstract: As attorneys, most, if not all, of us have likely been confronted with employment-related issues at one time or another, either on behalf of our clients or in our own practices. As a result, we are often called upon to quickly and effectively deal with employment issues in order to either minimize an employer’s exposure or to protect an employee’s rights. While employment attorneys and law firms which specialize in employment law are still the best resources for dealing with complicated employment related issues and claims, the following summary will provide attorneys who do not specialize in employment law with an overview of four employment laws which affect most employers: The Americans With Disabilities Act of 1990 (the “ADA”); The Family and Medical Leave Act of 1993 (the “FMLA”); The Fair Labor Standards Act of 1938 (the “FLSA”); and The Pregnancy Discrimination Act (the “PDA”).

Fighting the Myth of “Toxic Mold”
Professionals: Andrew P. Gold, Stuart R. Silver
Abstract: The media portrays mold in homes as a deadly problem which can lead to a profitable lawsuit. In this article, Andrew Gold and Stuart Silver show that this deadly mold myth is false, and they discuss how a company can defend itself against mold lawsuits.

Intellecual Property: Licensing - Recent Developments
Date: December 31, 1969

Intellecual Property: Entertainment - Recent Developments
Date: December 31, 1969

Intellecual Property: Food and Beverages - Recent Developments
Date: December 31, 1969

Intellecual Property: International - Recent Developments
Date: December 31, 1969

Intellecual Property: Pharmaceuticals - Recent Developments
Date: December 31, 1969