Miami Lawyer Blog

The New York Post has recently reported on a case handled by Attorneys Jonathan Davidoff and Aaron Resnick. To read the article, click here.

Mr. Davidoff is the lead counsel on the case and Mr. Resnick is co-chairing the trial that is set to start in the United States District Court for the Southern District of New York on February 11, 2013. According to Mr. Davidoff, Mr. Croland is entitled to millions of dollars from the Estate of Michael Ronis, the former chef at Carmine's Restaurants (in NYC and Atlantic City) and Virgil's Real Barbeque.

Mr. Davidoff and Mr. Resnick are trial attorneys with offices throughout Florida and in New York City.

Terry Gene Bollea v. Gawker Media, LLC - USDC M.D. Florida

The United States District court for the Middle District of Florida denied the motion for preliminary injunction by Hulk Hogan to compel removal of sex tape from website and to prevent tape from being posted on other websites, finding that tape was a matter of public concern protected by the First Amendment.

Plaintiff Terry Gene Bollea, known professionally as the wrestler Hulk Hogan, sought a preliminary injunction against defendants Gawker Media and related entities, requiring defendants to remove excerpts from a sex tape of Bollea and a woman not his wife that defendants posted on Gawker.com on or about October 4, 2012, and to prevent defendants from posting any portion of the sex tape on any other website. The district court denied his motion.

According to Bollea, six years prior to this case, he engaged in consensual sexual relations with a woman who was not his wife and the encounter was videotaped, allegedly unbeknownst to plaintiff. Defendants obtained a copy of the sex tape and posted excerpts of it on their website without Bollea's permission. Defendants allegedly have refused numerous requests from Bollea to remove the excerpts from the site. Bollea filed suit against defendants, asserting a number of claims including invasion of privacy by intrusion upon seclusion, publication of private facts, violation of the Florida common law right of publicity, intentional infliction of emotional distress, negligent infliction of emotional distress and copyright infringement, and filed a motion for a preliminary injunction.

The district court held that a plaintiff seeking a prior restraint on speech must establish that the restraint will be effective and that no less extreme measures are available. Bollea failed to overcome the presumption that the preliminary injunction would be an unconstitutional prior restraint because defendants' First Amendment rights override plaintiff's right of privacy. Noting the U.S. Supreme Court had recently recognized that the heart of First Amendment protection is speech on matters of public concern, the court reasoned that the sex tape constituted a matter of public concern, demonstrated by Bollea's public persona, his reality television show, his own book describing his affair, and his own public discussion relating to his marriage and the tape, and that the inappropriate or controversial nature of the speech does not affect whether it is a matter of public concern. The court also found that plaintiff was not entitled to a preliminary injunction because he failed to demonstrate that he would suffer irreparable harm if the tape were not removed. Embarrassment and economic loss do not justify a preliminary injunction, according to the court. In fact, noting the Supreme Court has repeatedly recognized that even minimal interference with the First Amendment freedom of the press causes an irreparable injury, the court found that compelling the removal of the tape from the website would disserve the public interest. In addition, the court concluded that this was a case in which "the proverbial 'cat is out of the bag[,]'" since the tape had already been posted and injunctive relief likely would be ineffective.

Does your company have a policy regarding social networking sites? If so, then watch out. Recently, in an order filed on October 4, 2012, Judge Ronald L. Buckwalter of the Eastern District of Pennsylvania granted summary judgment dismissing Linda Eagle's claims that she had been damaged by her former employer's theft of her LinkedIn account.

In the suit, Dr. Eagle alleges that while she worked as the President of a company she helped form in 1987 (Edcomm, Inc.), she created an account on LinkedIn--the world's largest networking site for professionals. To assist with her maintenance of her LinkedIn profile, Dr. Eagle gave her password to a fellow employee.

According to the order, Edcomm had a policy that "when the employee left the company, the company would effectively 'own' the LinkedIn account and could 'mine' the information and incoming traffic, so long as it did not steal that former employee's identity." (Order, p. 2.) Consequently, when Dr. Eagle attempted to access her LinkedIn account after being terminated by Edcomm, she was unable to do so--her password having been changed by the company, and her name and picture being replace by those of her successor. Dr. Eagle alleged that business contacts or potential customers trying to access her profile were presented with her experience and credentials, but not with her name or contact information. Dr. Eagle claimed upwards of $100,000 in potential losses due to the inability of potential customers to contact her through her LinkedIn profile.

Judge Buckwalter granted summary judgment for Edcomm, however, based primarily on the fact that Dr. Eagle provided no support for her damage claims and that most of her claims (loss of reputation, loss of business opportunities) are not technically compensable under the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030. After the grant of summary judgment on the CFAA and Lanham Act claims, Dr. Eagle only has state law claims on conversion remaining, which will continue to be heard by Judge Buckwalter under supplemental jurisdiction.

About the Law Offices of Aaron Resnick, P.A.

The Law Offices of Aaron Resnick, P.A. is a full service boutique law firm with offices in Miami, Boca Raton, Gainesville/Ocala, Jacksonville and New York City. For additional information, please go to www.thefirmmiami.com, or call 305.672.7495.

In 2005, Florida's legislature decided that commercial real estate brokers needed the protection of lien rights. To cure the problem, the legislature adopted a comprehensive statutory system by which commercial brokers could establish liens for both sales and rental commissions.

The commercial broker's lien attaches only to the net proceeds of sale, and not to the real property. That means that buyer acquires title free of lien. The lien arises only when the commission is earned. That generally means when a sales contract is signed.

The lien belongs only to the broker in the brokerage agreement. It can not be factored or sold by the broker, which means the broker can not assign the lien to a third party or sell it. It can not be waived before the commission is earned.

Commercial brokers are required to inform property owners at time a listing agreement is entered that Florida Statutes create lien rights for commissions earned by the broker that are not waivable before the commission is earned. If the broker does not provide a disclosure, the broker can not enforce the lien under the statute.

To enforce the lien, a broker must provide a commission notice to the owner and closing agent. The notice must be sworn and signed before a notary public, and must include name of the owner, legal description of the property, name, mailing address, telephone number and license number of the broker, and effective date of the brokerage agreement. The notice must also include a statement that the statute requires the owner to dispute the claimed commission not later than 5 days after closing or the owner will be deemed to have confirmed the commission and the closing agent is required to pay the commission from the owner's net proceeds.

A notice must be delivered to both owner and closing agent within 30 days after a commission is earned and at least one day before closing. If the broker does not know who the closing agent is at the time the commission is earned, the broker must deliver the commission to the closing agent within 3 days after the broker finds out the identity of the closing agent.

After the broker delivers the commission notice, the broker may record the notice in the public records maintained by the Clerk of Court in the county where the property is located. Recording date establishes its priority with respect to any other claims against the owner's net proceeds of sale. The broker must record a release within 7 days after the commission is paid.

The Statute imposes specific duties on the closing agent with respect to the commission. The closing agent must reserve from the owners net proceeds an amount equal to the commission claimed by the broker if the owner has provided a commission notice. If the net proceeds are insufficient to pay the full commission, all of the net proceeds must be held by the closing agent.

If the broker has recorded a commission notice with the Clerk for at least 60 days, the closing agent is charged with constructive notice and must comply with the withholding requirement. Accordingly, the statute allows the closing agent to require the owner to deliver a sworn statement as to existence of terms of any brokerage agreement and the name, address, and telephone number of any brokerage who might have a claim to a commission. If the closing agent obtains this sworn statement from an owner, the closing agent must reserve from the owner's net proceeds an amount equal to the total commission disclosed by the owner, even if the closing agent did not receive a commission notice from the broker. If the closing agent determines that the owner's net proceeds will be inadequate to pay the entire commission, he must notify both owner and broker of that fact within 3 days of making the determination.

If the owner's cash from closing is insufficient to pay the commission, but the owner is getting a purchase money note, the closing agent is to reserve and release the note only as the owner and broker agree. If the owner and broker do not agree within 5 days after closing, the closing agent is required to file a court action seeking an order of disposition of the note.

Upon request of the closing agent or the owner, any broker who has recorded a commission notice with the clerk must give the closing agent a release in recordable form. The closing agent is required to hold the release in escrow until payment of the commission. The closing agent may deduct from the broker's commission recording cost of the release.

If the owner disputes the commission notice, the statute provides an expedited procedure under which the owner can apply for a court order. Under the procedure, the broker is ordered by the judge to show why the commission notice should not be discharged. If the broker fails, the broker must pay the attorneys fees and costs of the owner and the closing agent and the court will enter an order releasing the broker's.

There is no comparable statute with respect to residential real estate. In fact, Florida Statutes prohibit a broker or sales associate form recording any document which would affect title or encumber real property for purpose of collecting a commission unless expressly permitted by contract with the owner or the broker has otherwise perfected his claim through court judgment.

The statutes give commercial brokers a powerful tool for collection of commissions. They also increase the importance of reading and understanding all terms of brokerage and commission agreements. In your case, prompt action will minimize any problems. I suggest you consult with an experienced attorney immediately.

About the Law Offices of Aaron Resnick, P.A.

The Law Offices of Aaron Resnick, P.A. is a full service boutique law firm with offices in Miami, Boca Raton, Gainesville/Ocala, Jacksonville and New York City. For additional information, please go to www.thefirmmiami.com, or call 305.672.7495.

For many real estate professionals, commission disputes are simply part of the business. In fact, just about every licensee's career--whether spanning several years or several decades--is likely to include at least some experience with a dispute over commissions. Of course, the origin of the dispute may vary. Maybe it involved a seller whose property you had listed, who decided before the closing that he or she didn't want to pay the listing agreement's agreed-upon commission. Or the dispute was with a broker from another firm and involved the question of whether or not you were the procuring cause of a sale.

In this blog post we will discuss the different type of commission dispute--the one that arises between brokers and their sales associates -- and some of the common questions.

Will the Florida Real Estate Commission resolve a commission dispute that exists between a broker and his or her sales associate?

No. Generally speaking, FREC doesn't resolve commission disputes. Disputes over commissions (or any other agreed-upon compensation) between a broker/brokerage firm and its sales associates are civil matters. The ultimate recourse for sales associates looking to recover unpaid commissions is to file suit against the broker/brokerage firm.

If these disputes are civil matters, then what factors would be considered by a court in determining the outcome of the lawsuit?

Generally, the "employment" agreement that exists between the broker/brokerage firm and the sales associate will be the controlling factor in determining outcome. Many brokers require a sales associate to sign a written independent contractor agreement as a condition to being allowed to place his or her license with the broker.

These written agreements typically address compensation matters such as the amount of the sales associate's commission split, when a sales associate earns a commission, the time frame in which the broker/brokerage firm is obligated to pay the sales associate, the rights of the broker/brokerage firm to deduct from the sales associate's compensation amounts due the broker/brokerage firm, as well as many other matters relating to the broker-sales associate "employment" relationship.

In addition to a written independent contractor agreement, any existing office policy manual as well as the past business practice of the broker/brokerage company and any verbal agreement between the parties that can be shown to exist may play an important role in determining a sales associate's entitlement to, and the broker/brokerage firm's obligation to pay, the disputed compensation.

If a sales associate who obtains a judgment for disputed commissions is not paid by the broker pursuant to that civil judgment, would FREC then have cause to discipline the broker if it receives a complaint against the broker?

Yes. Section 475.25(1)(d), Florida Statutes, provides that FREC may discipline a licensee where a civil judgment for a share of a commission has been obtained against that licensee "and said judgment has not been satisfied in accordance with the terms of the judgment within a reasonable time. ..."

Some commission disputes between brokers who are real estate licensees are subject to mandatory arbitration at their local Board/Association of Realtors®. Would a commission dispute between a sales associate and his or her broker, where both parties are Realtors, also be subject to arbitration at the local Board/Association of Realtors®?

Such a dispute would be subject to local Board arbitration only if both parties (i.e., both the broker and the sales associate) voluntarily agree to the arbitration in writing and the local Board/Association of Realtors® finds the matter properly subject to arbitration.

The Law Offices of Aaron Resnick, P.A.'s group of attorneys are able to assist clients in every facet of Fashion Law. For more information contact attorney Aaron Resnick,
e the norm." According to Resnick, proper legal work may have prevented this dispute.

FTC: Skechers Deceived Consumers With Shoe Ads"

"Skechers USA Inc. will pay $40 million to settle charges by the Federal Trade Commission that the footwear company made unfounded claims that its Shape-ups shoes would help people lose weight and strengthen their butt, leg and stomach muscles. Kardashian, Burke and other celebrities endorsed the shoes in Skechers ads.

Wednesday's settlement also involves the company's Resistance Runner, Toners, and Tone-ups shoes and claims of deceptive advertising for those shoes as well. Consumers who bought the shoes would be eligible for refunds, though it's not clear how much money they'll get...."

http://www.usnews.com/news/us/articles/2012/05/16/feds-skechers-deceived-consumers-with-shoe-ads?goback=.gde_4029717_member_116102061

WASHINGTON (AP) -- The government wants you to know that simply sporting a pair of Skechers' fitness shoes is not going to get you Kim Kardashian's curves or Brooke Burke's toned tush.

Skechers USA Inc. will pay $40 million to settle charges by the Federal Trade Commission that the footwear company made unfounded claims that its Shape-ups shoes would help people lose weight and strengthen their butt, leg and stomach muscles. Kardashian, Burke and other celebrities endorsed the shoes in Skechers ads.

Wednesday's settlement also involves the company's Resistance Runner, Toners, and Tone-ups shoes and claims of deceptive advertising for those shoes as well.

Consumers who bought the shoes would be eligible for refunds, though it's not clear how much money they'll get. The FTC says that will depend on how many claims are received in the eight-month filing period. Buyers can go to the FTC website to file a claim.

Most of the $40 million federal settlement would be returned to consumers, but a small amount of the settlement would be used to administer the payouts.

The settlement is related to a broader agreement also announced Wednesday that resolves a multi-state investigation led by the attorneys general from Tennessee and Ohio and involving more than 40 states. The company will provide an additional $5 million to the states, and pay $5 million in class-action attorney fees.

"The FTC's message, for Skechers and other national advertisers, is to shape up your substantiation or tone down your claims," said David Vladeck, director of the agency's consumer protection bureau. For millions of consumers, he said, "the only thing that got a workout was their wallet."

The commission settled similar charges with Reebok last year over its EasyTone walking shoes and RunTone running shoes. That $25 million agreement also provided customer refunds.

Skechers denied the allegations but said it settled to avoid long litigation.

"Skechers could not ignore the exorbitant cost and endless distraction of several years spent defending multiple lawsuits in multiple courts across the country," said David Weinberg, the company's chief financial officer. "While we believe we could have prevailed in each of these cases, to do so would have imposed an unreasonable burden on the company."

The company, based in Manhattan Beach, Calif., said it has received overwhelmingly enthusiastic feedback about the shoes from thousands of customers.

Skechers billed its Shape-ups as a fitness tool designed to promote weight loss and tone muscles with the shoe's curved "rocker" or rolling bottom -- saying it provides natural instability and causes the consumer to "use more energy with every step." Shape-ups cost about $100 and are sold at retailers nationwide.

Ads for the Resistance Runner shoes claimed people who wear them could increase "muscle activation" by up to 85 percent for posture-related muscles and 71 percent for one of the muscles in the buttocks, said the FTC.

The commission says Skechers falsely represented that clinical studies backed up the company's claims about its toning shoes. The FTC's Vladeck said the studies had defects, such as one that said people lost weight wearing the toning shoes, when in fact they gained weight.

The settlement bars Skechers from misrepresenting any tests, studies or research on its shoes in the future.

___

CATACLYSMIC RULING IN FAVOR OF PURCHASERS OF NEW CONSTRUCTION CONDOMINIUM DEPOSITS ISSUED BY THIRD DCA ENTITLING CERTAIN BUYERS TO FULL REFUND OF THEIR ESCROW DEPOSITS

Miami, Florida - September 7, 2011 - Florida's Third District Court of Appeals rendered an opinion today in one of the most significant legal decisions in Florida related preconstruction condominium deposit recovery cases. Attorney Aaron Resnick, one of the first condominium deposit recovery attorneys in Florida, has referred to the ruling as "potentially cataclysmic" for developers. According to Resnick, the Third District Court of Appeals ruled that if a developer did not strictly comply with Florida Statute § 718.202 by failing to use two separate escrow accounts for a buyer's purchase deposits, then a buyer could recover their entire deposit as well as their attorneys' fees and costs from the developer. The decision involved two consolidated condominium deposit cases against North Carillon, LLC and First American Title Insurance Company.

The Court held that the title insurance company did not have liability to the purchasers even if they funds were held in violation of the statute. The United States District Court for the Southern District of Florida rendered a similar ruling in 2009, Double AA International Investment Group, Inc. v. Swire Pacific Holdings, Inc., 674 F. Supp. 2d. 1344 (S.D. Fla. 2009), aff'd in part, vacated in part, 637 F.3d 1169 (11th Cir. 2011). That ruling was adopted by the Third District Court of Appeals. After the Double AA ruling, the Florida Legislature, after heavy lobbying by condominium developers, amended Florida Statute § 718.202 with the intention of undermining the Double AA decision and to clarify the statute so that the two escrow account requirement was not mandatory under the law.

The Third District Court of Appeals ruled that this amendment could not be applied retroactively to impair a purchaser's statutory right to void the contract if the statute was not complied with. The Third District Court of Appeals specifically concluded that if it were applied retroactively it "would impermissibly impair each buyer's pre-amendment contract rights."

Resnick notes that the developer in the case can still move for a rehearing of the decision and could attempt to appeal it to the Supreme Court of Florida. However, in the interim, Resnick articulated the law has shifted clearly in the favor of consumers on this issue and the doors may have been opened for persons who thought they had lost everything to seek full recovery of their deposits. As Resnick noted, "the Third District has ruled conclusively that buyers, pre the 2010 amendment, were entitled to have their first 10% deposit in an escrow account separate and distinct from the special escrow account for that buyer's 'in excess of 10 percent'".

Visit www.thefirmmiami.com or www.recovermydeposit.com today to receive information on the Law Offices of Aaron Resnick, P.A. and Recover My Deposit.
For more questions about this release please contact info@thefirmmiami.com or call 305.672.-7495.

CATACLYSMIC RULING IN FAVOR OF PURCHASERS OF NEW CONSTRUCTION CONDOMINIUM DEPOSITS ISSUED BY THIRD DCA ENTITLING CERTAIN BUYERS TO FULL REFUND OF THEIR ESCROW DEPOSITS

Miami, Florida - September 7, 2011 - Florida's Third District Court of Appeals rendered an opinion today in one of the most significant legal decisions in Florida related preconstruction condominium deposit recovery cases. Attorney Aaron Resnick, one of the first condominium deposit recovery attorneys in Florida, has referred to the ruling as "potentially cataclysmic" for developers. According to Resnick, the Third District Court of Appeals ruled that if a developer did not strictly comply with Florida Statute § 718.202 by failing to use two separate escrow accounts for a buyer's purchase deposits, then a buyer could recover their entire deposit as well as their attorneys' fees and costs from the developer. The decision involved two consolidated condominium deposit cases against North Carillon, LLC and First American Title Insurance Company.

The Court held that the title insurance company did not have liability to the purchasers even if they funds were held in violation of the statute. The United States District Court for the Southern District of Florida rendered a similar ruling in 2009, Double AA International Investment Group, Inc. v. Swire Pacific Holdings, Inc., 674 F. Supp. 2d. 1344 (S.D. Fla. 2009), aff'd in part, vacated in part, 637 F.3d 1169 (11th Cir. 2011). That ruling was adopted by the Third District Court of Appeals. After the Double AA ruling, the Florida Legislature, after heavy lobbying by condominium developers, amended Florida Statute § 718.202 with the intention of undermining the Double AA decision and to clarify the statute so that the two escrow account requirement was not mandatory under the law.

The Third District Court of Appeals ruled that this amendment could not be applied retroactively to impair a purchaser's statutory right to void the contract if the statute was not complied with. The Third District Court of Appeals specifically concluded that if it were applied retroactively it "would impermissibly impair each buyer's pre-amendment contract rights."

Resnick notes that the developer in the case can still move for a rehearing of the decision and could attempt to appeal it to the Supreme Court of Florida. However, in the interim, Resnick articulated the law has shifted clearly in the favor of consumers on this issue and the doors may have been opened for persons who thought they had lost everything to seek full recovery of their deposits. As Resnick noted, "the Third District has ruled conclusively that buyers, pre the 2010 amendment, were entitled to have their first 10% deposit in an escrow account separate and distinct from the special escrow account for that buyer's 'in excess of 10 percent'".

Visit www.thefirmmiami.com or www.recovermydeposit.com today to receive information on the Law Offices of Aaron Resnick, P.A. and Recover My Deposit.
For more questions about this release please contact info@thefirmmiami.com or call 305.672.-7495.

The following is an analysis of three high-profile lawsuits involving members of the hospitality industry from Jason Freed at HotelNewsNow.com.

Case: M Waikiki v. Marriott Hotel Services and Ian Schrager
Filed: May 26, 2011
Status: Open; deposition deadline 18 October 2013
Summary: The owner of Edition Waikiki claims in a lawsuit that Marriott International and partner Ian Schrager haven't put enough resources toward the launch of the Edition brand and backed out of promises to help the hotel succeed.

Commentary: With the lawsuit, M Waikiki, the owner of the 353-room oceanfront hotel, is seeking to remove Marriott from management. Disputes between a hotel owner and a brand are fairly common, said Jim Butler, attorney with Jeffer, Mangels, Butler & Mitchell, but usually disagreements enter arbitration out of the public eye. The fact that a suit was filed "represents a real rupture in the agreement," Butler said.

"In this case, the owner says he was pursued aggressively and that Marriott made personal promises about the success of the hotel and the brand," Butler said, while cautioning that the public has only heard M Waikiki's side of the story. "Marriott gave them some rosy projections."

M Waikiki claims in the lawsuit that Edition Waikiki is performing at 37% of its competitive set, a staggeringly low number for a new hotel that has been completely renovated. Poor performance could be attributed to the economic downturn, but with relation to the hotel's comp set, new hotels tend to outperform.

Butler said scale of a brand is "extremely important" because travelers become familiar with brands they see more often. Brands also imply a quality control program and a points program, he said. With only two Edition properties open since the brand was launched four years ago, the size of the brand lends no assistance to the marketing.

Also, M Waikiki claims in its initial lawsuit that two high-profile hotel names--Marriott and Ian Schrager--were to provide personal involvement and guidance to the hotel but failed to do so. The onus will be on the plaintiff to prove Schrager's initial promise of involvement.

"We believe that promises made in connection with the launch of Edition were broken, leaving our client with significant damages which have been further compounded by Marriott's inability to effectively manage this property," William A. Brewer III, partner at Bickel & Brewer and lead counsel for M Waikiki, said in a statement to HotelNewsNow.com.

Butler said M Waikiki can't simply point to the slow pipeline growth as proof the brand is responsible for poor performance at this single hotel.

"There were a lot of people who thought they had projects virtually done or committed," he said. "But when Lehman Brothers filed bankruptcy nothing gone done and we've been in a gridlock on new development ever since ... No one can guarantee hotels in a pipeline will open."

Butler said in the past he has negotiated and written franchising contracts with termination agreements that declare if there is material change in the strength of brand, usually based on a percentage of decline in performance, the franchisee has the right to terminate the contract.

"Certainly (the franchisor) can resist that. But, especially in a new brand, I would want all kinds of provisions and would be very specific about all kinds of support," he said.

Case: Host Hotels & Resorts v. Molinaro Koger, Scioto Partners and Dearborn Hotel
Filed: June 3, 2011
Status: Open; pretrial hearing set for 15 June, 2012
Summary: Host Hotels & Resorts filed a lawsuit against brokerage firm Molinaro Koger, accusing president Rob Koger and the firm of fraud in misrepresenting sales it handled for Host. Host alleges that Molinaro Koger set up companies led by internal employees to buy three hotels from Host and resell them for a profit. In one case, the initial buyer of one Host hotel was actually dead, the lawsuit states.

Commentary: Molinaro Koger, a hospitality brokerage firm that has brokered more than US$1.1 billion in hotel transactions in the past two years, has served as exclusive broker for Host Hotels & Resorts, the largest hotel real-estate investment trust in the U.S., since 2001.

Lawsuits involving real-estate sellers and brokers are common in the residential industry, Butler said, but the high profiles of the two organizations involved make this an unusual case.

Although the statements in the initial lawsuit must be taken with the consideration that they are only allegations, Butler said they must be taken seriously. Oftentimes, he said, lawsuits will be an initial step into depositions and investigations. But, in this case, it appears the plaintiffs have done their homework.

"These are serious allegations," Butler said. "A lot of facts were put into the complaint, such as who called who and who did what. You have very specific, detailed, factual allegations--it's not fishing."

For example, in two separate incidents, the lawsuit claims Molinaro Koger set up companies led by internal employees to purchase hotels at prices lower than what was being offered on the market. In turn, Molinaro Koger is accused of flipping those hotels on the same day, through affiliated third-parties, at profits in the millions. Host paid brokerage fees to Molinaro Koger in both instances.

In a separate incident, Host claims that Molinaro Koger, acting as a brokerage firm on the sale of tranches of subordinate debt notes, flipped the debt notes through an unnecessary third party before selling them to Host in order to collect brokerage fees.

Days after the lawsuit was filed, Molinaro Koger released a statement saying they were "taken aback" by the lawsuit and said Host had knowledge of the transactions and the parties involved.

"This whole event seems like the plot of a John Grisham novel, where we are the victims. I am puzzled and disappointed by Host's baseless accusations," president Rob Koger said. "Among the various false accusations is the suggestion that Host had no knowledge of the transactions of which they now complain because it is belied by the fact that senior management at Host had complete knowledge of the transactions. That their suit professes ignorance of Scioto Partners and falsely alleges some affiliation between Scioto and Molinaro Koger is inexplicable."

In addition, Molinaro Koger claimed a series of crimes had been committed against the company, including pretexting the company's accounts to illegally obtain financial records from the firm's banks, breaking and entering Molinaro Koger's office and stealing files and sending false and malicious correspondence to MK's clients.

Butler said it is uncommon for a pretrial hearing to be set before the defendant has filed an answer to the initial compliant.

Case: Family Suites Resorts v. Viacom International d/b/a MTV Networks
Filed: June 1, 2010
Status: Open; answer filed and deposition deadline 2 September, 2012
Summary: Family Suites, which operates a Nickelodeon-themed hotel in Orlando, Florida, is suing Nickelodeon's parent company Viacom claiming licensing rights were breached when Viacom entered into an agreement with Marriott to franchise the Nickelodeon brand.

Commentary: A motion to dismiss filed by defendant Viacom was denied in early June, meaning the Family Suites Resorts v. Viacom International case will proceed. The agreement between Nickelodeon and Marriott to partner on a Nickelodeon-themed venture was announced in May 2007, and Family Suites, by way of Bickel & Brewer law firm, claim Viacom breached its contract by licensing the Nickelodeon cable brand to a rival hotel chain. At the time of the filing, a Nickelodeon spokesperson said, "Their claims are without merit."

"Plaintiffs would not have invested over US$168 million to purchase, remodel, retheme and operate the hotel as a Nickelodeon hotel if they had known that Viacom would frustrate the purpose of the license agreement by offering, promoting and producing similar Nickelodeon-themed experiences at other hotels nationwide," the complaint stated.

Family Suites initially entered into the license agreement in 2003, under which Viacom granted the hotel operator the exclusive right to operate a Holiday Inn hotel in Orlando as the Nickelodeon-themed resort, the company claims. The hotel was renovated and opened in May 2005.

Butler said cases involving intellectual property aren't common in the hotel industry but are important. He pointed to the high-profile Starwood Hotels & Resorts Worldwide v. Hilton Worldwide case--accusing Hilton and at least two of its employees of pilfering massive amounts of electronic files after being recruited--that was settled earlier this year.

"This is an industry that relies on intellectual property--that's what brands are," Butler said. Butler said the license agreement between Viacom and Family Suites will most likely spell out in black and white the preciseness of the exclusivity.

In an answer filed last week, Viacom admits factual claims about the license agreement between itself and Family Suites, and also admits the partnership with Marriott, but denies any breach in contract. Viacom asked that the court dismiss all claims against them.

It goes without saying that for many hotel owners the past few years have been tough financially. The general economic downturn, or recession as some economists have suggested, has caused hotel vacancy rates to skyrocket. Unfortunately for many hotel owners surrounding the Gulf of Mexico, the BP Oil Spill has exacerbated the vacancy rates which, in turn, have drastically hastened the financial downturn. At the end of the day, most hotel owners affected by the BP Oil Spill have experienced a substantial loss in revenues which, in turn, has caused the owners to default on their mortgage loans. If the hotel owners have personally guaranteed the mortgage loans, financial disaster for the hotel owners could be looming on the horizon.

Whether or not affected by the BP Oil Spill, it is critical for hotel owners to consider some form of personal wealth preservation planning (also known as asset protection planning). The planning is designed to protect the accumulated, personal assets of the hotel owner, including, in some cases, the hotel owner's ownership of the hotel. Without proper planning, the assets of the hotel owner are exposed to creditor judgments including in many cases a deficiency judgment from the lender of the hotel mortgage loan. With proper planning, the assets of the hotel owner would be insulated from creditor judgments. Of course, every hotel owner's situation is different, so the foregoing is subject to the facts and circumstances of the hotel owner's specific situation. Additionally, the effectiveness of proper planning is, in part, dictated by the timing of the establishment of the planning and the jurisdiction of the hotel owner. It is important the hotel owners act now. At some point, it will simply be too late to protect the hotel owner's assets.

The Law Offices of Aaron Resnick, P.A. offers all hotel owners a complimentary initial analysis of the hotel owner's specific situation and to determine whether wealth preservation planning is something to consider. If you are interested in such an analysis, please contact the Law Offices of Aaron Resnick, P.A. From this analysis, we will be in a position to suggest whether you should engage our legal services to educate you on your planning options and to devise a plan to protect your assets. If you decide to engage our services, we will then establish and implement the planning.

Derek A. Schwartz leads the Firm's Wealth Preservation practice group. He concentrates his practice in areas of wealth preservation, estate planning, wills and trusts, asset protection, probate and the tax and business legal needs of professionals, business owners and current and former professional athletes. Mr. Schwartz earned his bachelor degree in accounting from Emory University and his law degree from the University of Florida Levin College of Law. At the University of Florida, he served as a tax editor to the Florida Tax Review and was a member of the Florida Law Review. Formerly associated with the law firms of Holland & Knight, LLP and Greenberg Traurig, Mr. Schwartz has now provided Wealth Preservation planning to over 1000 clients nationally.

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Miami Attorney Brittany Rawlings, an associate at the Law Offices of Aaron Resnick, P.A., was named Miami's Power 30 Under 30.

The Power 30 Under 30™ Awards honors thirty outstanding individuals under the age of thirty around the United States that have achieved extraordinary success. Young leaders are recognized from the following categories: 1) Arts, Entertainment, & Media 2) Business 3) Community Service 4) Politics 5) Science & Technology 6) Sports.

Rawlings specializes in the field of entertainment, corporate and fashion law. Rawlings is a member of Young Women Lawyers, Women Who Launch, Florida Association of Women Lawyers, and the Florida Bar Entertainment, Arts and Sports Law.

She is a graduate of Nova Southeastern University, Shepard Broad Law Center, Cum Laude (2010) and University of Florida, with a Bachelor of Science in Business Administration & Entrepreneurship Cum Laude (2007).

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Super Lawyer Magazine named Miami Attorney Aaron Resnick one of its 2011 Rising Stars.

Super Lawyers is a listing of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The magazine names exceptional attorneys annually in all 50 states and Washington, D.C. Super Lawyers uses a rigorous selection process that begins with peer nomination. Once attorneys are nominated they are then evaluated on 12 indicators of peer recognition and professional achievement through a third-party researcher.

The 'Super Lawyers' and 'Rising Stars' lists will appear in Florida Super Lawyers magazine which will be mailed to attorneys in Florida and the ABA-accredited law school libraries. The Florida Super Lawyers supplement will appear in The Wall Street Journal (Florida distribution) on Thursday, June 16, 2011. 'Super Lawyers' and 'Rising Stars' also appear on the Web at superlawyers.com.

Mr. Resnick's law practice concentrates on business and commercial matters, real estate law and litigation and sports and entertainment law. He has successfully represented a number of clients in commercial foreclosure matters and has a company that specializes in working with lenders on distressed assets.

His current practice also includes the personal representation of a number of current and former professional athletes in the National Football League, the National Basketball League and Major League Baseball, as well as members of the arts, fashion and entertainment world.

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Miami attorney, Aaron Resnick, managing partner of the boutique law firm, the Law Offices of Aaron Resnick, P.A. and founder of Faction Capital, www.factioncapital.com, was named one of the South Florida Business Journal's "40 under 40," the annual listing of South Florida's best and brightest leaders under the age of 40 based on professional success and community involvement. "I am incredibly flattered to have been recognized and included among such an impressive list of South Florida leaders," said Resnick. "Young leaders are a vital asset to our region and it's important to recognize and acknowledge those who are making great strides in shaping our society's future," said Melanie Dickinson, Publisher & President of the South Florida Business Journal.

Resnick's law practice concentrates on business and commercial matters, and sports and entertainment law. He has successfully represented a number of clients in commercial foreclosure matters and has a company that specializes in working with lenders on distressed assets. His current practice also includes the personal representation of a number of current and former professional athletes in the National Football League, the National Basketball League and Major League Baseball, as well as members of the arts, fashion and entertainment world.

Resnick, a graduate of Leadership Miami, is a leader in the Miami's legal and cultural arts scene. Resnick was awarded the "Shining Star" Award by the Arts & Business Council of Miami, Inc. This award each year honors the top Miami business professional supporting the arts and cultural community. Resnick was the founding chairperson of the Friends of the New World Symphony, and now serves permanently on its Executive Committee. He served on the executive committee for numerous young patron groups in South Florida including, but not limited to: Best Buddies of South Florida, Big Brothers Big Sister's Impact Circle, Art Crowd of the Bass Museum, the Green Room Society for the Center for Performing Arts, the Tropees of the Historical Museum of Southern Florida, the Jewish Legal Society of Miami, and the MOCA Shakers amongst others. He is a Regional Board Member of the Maccabi World Union and a member of the Ben Gurion Society of the Greater Miami Jewish Federation.

Currently, he is a member of the Silver Director's Circle for the Bass Museum, the Maestro's Circle for the Friends of the New World Symphony, and a Supporting Member of the Adrienne Arsht Center for the Performing Arts (and a member of the Green Room Society). Resnick is a board member of the Little Lighthouse Foundation, www.littlelighthouse.org, which is a Miami based charity that seeks, identifies and provides support to children and their families with health, educational, and financial challenges. Mr. Resnick received his Bachelors of Arts in Political Science with honors from Emory University and a Juris Doctor with honors from the University of Florida.

About the Law Offices of Aaron Resnick, P.A.

The Law Offices of Aaron Resnick, P.A. is a full service boutique law firm with offices in Miami, Boca Raton, Gainesville/Ocala, Jacksonville and New York City. For additional information, please go to www.thefirmmiami.com, or call 305.672.7495.

About Faction Capital

Faction Capital, LLC, www.factioncapital.com, is a private real estate consulting firm that deals with distressed assets and related products and properties. Faction Capital works with some of the most prominent real estate owners and developers from the private and public sectors, REITs and REOCs, leading financial institutions, foremost private equity funds, elite hedge funds, as well as insurance and pension funds.

About South Florida Business Journal 40 Under 40 Awards

The South Florida Business Journal each year selects its 40 Under 40 Award winners. These business leaders have all achieved impressive career success and contributed to their community before reaching age 40. This year's honorees were selected from hundreds of nominations. The judging criteria comprised nominees' positions within their companies, responsibilities, career accomplishments and community service. In addition to the SFBJ June issue print feature, the 2010 Class of 40 Under 40 will be honored with a luncheon Thursday, July 28 at Hyatt Regency Pier Sixty-Six, 2301 S.E. 17th Street, Ft. Lauderdale, FL 33316. The reception will be from 11:30 a.m. to 1:30 p.m. Individual tickets are $85 each and a table sponsorship (seats 10) is $950.

A new bill that was recently proposed by Florida lawmakers and is set to go to the Governors desk could change how developers in Florida will apply for permits to build. Supporters of the bill insist Florida has placed far to difficult requirements on contractors trying to develop the state.

House Bill 993 will change the way new developments proceed by putting new, harsher requirements on groups who challenge proposed developments. Environmentalists are worried the bill will make it more difficult to protect the environment from detrimental building. Previously, contractors were required to prove why their proposed building would not harm the proposed building area, but if the proposed bill passes that will change drastically. Instead, groups who oppose developers' plans will be required to prove how the proposed development is harmful. This change in the burden of proof could make it far easier for builders to get approval for their plans.

The proposed law could make it very difficult to challenge contractors and developers, which has local environmentalists worried about the effect on Florida's water supplies. Most are appalled by the bill. Supporters of the bill insist the bill is not about damaging the environment, but increasing building in Florida and making it easier for developers to bring much needed constructions jobs back to the State. They insist that out of state developers avoid Florida because they have grown weary of spending long periods of time locked in court battles with environmentalists who do not live any where near the proposed developments. Developers welcome the bill, saying the previous laws were set up in a way that put them at a disadvantage in court.

Critics and Florida conservationist and environmentalists see the bill as a free for all attack on the environment and already fragile water quality in the state. Local leaders who oppose the bill cite concerns over the nearly 85,000 acres located in Lee county that are at risk of being developed. In fact, a southern Florida judge is already so critical of the current water quality of the state he said he is considering asking the federal government to step in and enforce water quality laws that are already in place.

If you are concerned with the legality of this bill or any other commercial law issue, contact a Miami commercial lawyer. Commercial law covers a wide range of issues involving business processes and the buying and selling of goods. If your company is being sued or if you believe your rights have been infringed upon, a Miami commercial lawyer can tell you if you have a viable case. Most Miami commercial lawyers will offer a free consultation to help you decide if you have a case.

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Builders hail late legislation change, by MARY WOZNIAK, May 6th 2011

Miami is a hotbed of entertainment. Miami has been host to many television shows, movies, theater, and much more. When you think about Miami and the entertainment venue it offers, you do not immediately think about all of the legal leg work that goes into the entertainment business. Here is a quick overview of how entertainment law in Miami breaks down.

The Idea:

Do you have a great idea for entertainment? It comes in the form of a script or poem, a book or piece of software. If so, you have a right to keep that idea and use it for monetary purposes. You must take measures to assure it is protected by copyright laws and that if your idea is stolen from you that you have the information needed in order to take action against those who stole that idea. That is where you will see the very first need for an entertainment law attorney in Miami.

The Production:

When acting on the idea you may have and for this topic lets use the example, Movie Script, you will have a need to form business contracts with all who will be working with you in order to make your idea a reality. An entertainment lawyer in Miami can assure that your contracts represent your best interests and are free from mistakes that could cost you a lot of money. You will need to employ those who will help your idea become a reality and an entertainment lawyer in Miami can assure that you know and understand employee rights so that you do not face any possible legal actions that may occur with disgruntled employees.

Finalization:

An entertainment attorney in Miami will not only oversee the contracts, but also any financial transactions and business negotiations that will need to take place. It is essential that you have an entertainment attorney in Miami present when conducting business as important as payment, production and the like.

When it comes to Miami, entertainment is one of the most popular venues and because of that, it is imperative that you understand your rights. An entertainment attorney in Miami can assure that you not only understand those rights but also that you are properly represented when the need arises.