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Citizens raised insurance based on false report, lawsuit claims

A Palm Beach County homeowner filed a lawsuit Tuesday alleging the state's property insurer of last resort revoked her insurance discounts — and raised her premium — based on a false report.

In the ongoing controversy over how Citizens Property Insurance Corp. handles its home reinspection program, Stephanie Ritchie accuses Mueller Services of improperly flagging problems with her roof and garage door, among other issues.

"I was very upset," said Ritchie 43, of Tequesta, who saw a premium increase of $1,771. "It was a big burden. What makes me so upset is that I had everything to get the discounts."

Ritchie's suit, which seeks class-action status, claims that Mueller did not pay inspectors until they determined that a homeowner did not qualify for the discounts "despite the inspector's independent judgement that the homeowner was entitiled" to them.

Citizens was not listed as a defendant, though a Pembroke Pinesman filed a similar suit against the state insurer earlier this year.

Officials from Mueller and Citizens could not be reached for comment Tuesday. Citizens issued a brief statement, saying it is not a defendant in the Ritchie lawsuit, which was filed in U.S District Court in West Palm Beach.

Both suits say Citizens is trying to make up for lost revenue because of state-mandated discounts and capped insurance rates.

Citizens has a surplus of more than $6 billion but says it may not have enough money to pay claims after a major hurricane. The insurer has raised rates and reduced coverage, hoping to push some of its 1.4 million policyholders into the private market.

But many customers say they have no other options for insurance.

"Citizens is only focused on numbers and raising rates, not real people," Sean Shaw, founder of Policyholders of Florida, said in a statement. "One year they tell policyholders to harden their homes to reduce rates, now they want to change the rules in the middle of the game."

Citizens' reinspection program, started in 2010, was designed to reward homeowners for bolstering their homes against storm damage by upgrading roofs, doors and windows. But it has faced increasing scrutiny because customers have lost discounts as a result of a reinspection and saw their premiums rise sharply.

A few local homeowners have disputed claims made on Mueller Services' inspection reports.

Sandy Teich said the company reinspected her Coconut Creek home in late 2011, just two years after the original inspection. She said Citizens raised her premiium from $3,700 to $4,565.

Tech said the report misstated the way her roof is attached to her home and said that her front door was not hurricane safe because painters had painted over a sticker saying it was. She had documents proving it, but said the inspector didn't want to see them.

"What they were telling me, the reasons they were giving me for raising my rates, were not justified," Teich said. "I'm not an insurance agent, but I have a pretty hurricane-safe house, and it does not make sense for me to have to pay $4,500 a month."

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Woman killed during parasail ride was 'excited' about adventure, her father says

POMPANO BEACH With just three days of Florida vacation left before their scheduled return home, Kathleen and Stephen Miskell decided to try something daring and new: parasailing.

“She was all excited about it because she had never done it before,” said James Mulcahy, Kathleen’s father,  from his home in Manchester, Conn., on Thursday. “She said they thought about being towed on a banana boat, but she thought this would be safer.

Flying about 150 feet above the Atlantic Ocean Wednesday in a tandem harness with her husband, Miskell, 28, somehow broke free of her safety restraint about 3:30 p.m. and plummeted into the sea.

Two crew members aboard the tow boat reeled in Stephen Miskell, 31, and circled back to pick up Kathleen, but she could not be revived, said Pompano Fire Rescue spokeswoman Sandra King said.

Stephen Miskell, who remained in Florida on Thursday, was “very distraught, as is the extended family,” said Jorge Pino, spokesman for the Florida Fish and Wildlife Conservation Commission, one of four agencies looking into what happened.

The parasailing company was identified as Wave Blast Water Sports, located in the 1300 block of South Ocean Boulevard inPompano Beach.

Pino said the investigation was focusing on the equipment. “It was a potential malfunction of the harness,” he said, although there were no immediate signs that it had broken. “We are going to do a methodical check of each part of the harness, parachute and ropes.”

Pino said investigators from the FWC, the Coast Guard and the Broward Sheriff’s Office would look at the operating company “to see if there is a history of violations, but at present that does not seem to be the case.”

The National Transportation Safety Board would also play a role, said Pino.

Parasailing operations are common in South Florida, with costs ranging from $50 to $100 for a ride that usually lasts about 20 minutes. An estimated 70 to 120 commercial parasailing companies operate in Florida, according to the FWC.

It is not for everyone, said Pino. “It is up to each individual to make a decision, weighing the risks and rewards. Some people would like to be 200 feet in the air, seeing the sights, and others would not.”

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Google Joins Copyright Police Force

Google on Friday said that websites accused of copyright infringement may soon appear lower in search results lists. As a result, such websites are less likely to be seen by searchers and less likely to be visited.

"Starting next week, we will begin taking into account a new signal in our rankings: the number of valid copyright removal notices we receive for any given site," said Google SVP of engineering Amit Singhal in a blog post. "Sites with high numbers of removal notices may appear lower in our results.

This is a bad idea. It is the very evil that Google in its unofficial motto says it will try not to do.

Google for years has made changes in the name of its users. Now, it's making changes at the expense of its users. People use Google because it continues to provide the highly relevant results for submitted search terms. Reducing the relevance of links associated with a copyright complaint may please aggrieved copyright holders but it's a betrayal of Google's bargain with its users. What's next, distorting Google Maps when users seek the location of flea markets, where all manner of unlicensed content may be sold?

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CBS going forward with ‘Glass House’ copyright lawsuit

CBS still wants to evict “The Glass House” from the airwaves. 

The network moved ahead with its lawsuit against ABC last week by amending its filing that alleges ABC copied elements of “Big Brother” for its new reality TV competition series “The Glass House.” 

CBS attorneys added several more objections to the show now that ABC has aired several episodes, arguing that “ ‘Glass House’ employs the same plot, themes, mood, setting, pace, characters, dialogue, sequence of events and other concrete elements making up ‘Big Brother.’ ” 

CBS originally sought to stop “Glass House” from premiering in June, but a federal judge refused. U.S. District Judge Gary Feess agreed with ABC attorneys who argued that many of the filming techniques employed on “Glass House” are not unique to “Big Brother” and are used in other reality TV shows. 

Both shows employ dozens of cameras to monitor a houseful of contestants vying for a cash prize, but Feess ruled the shows are likely to play out very differently. 

Among the similarities that CBS added to its lawsuit were that both shows feature an “obligatory older” and “openly gay” player, “showmances” as a plot element and “generally comfortable, cloistered house” environments. 

CBS says “Glass House” violates copyrights and trade secrets from “Big Brother” and alleges that dozens of former “Big Brother” staffers and producers now working with ABC on “Glass House” may have violated non-disclosure agreements. 

“Glass House” airs Mondays on ABC. 

The 14th season of “Big Brother” is currently airing three nights a week on CBS. 

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Florida Tomato Grower Settles Harassment Lawsuit

One of the Florida’s major tomato growers will pay two women $150,000 and change the way it deals with harassment complaints to settle a federal lawsuit.

According to the Fort Myers News-Press the women worked in DiMare Ruskin’s Immokalee fields for three months and were sexually harassed by supervisors then fired when they complained.

The U.S. Equal Employment Opportunity Commission brought the lawsuit. According to records, DiMare agreed to establish a nationwide anti-harassment policy and train employees about anti-discrimination laws. For the next three years, DiMare must report to the EEOC how it handles any discrimination complaints.

EEOC officials say sexual harassment against women in the agricultural industry is a problem.

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Delays easing from crashes on I-95

Delays were easing late Monday morning following two crashes that snarled Interstate 95 in both directions through Broward County.

One of the crashes, reported just before 10:15 a.m.,  just after the Atlantic Boulevard exit was initially blocking three left lanes, according to Florida's Department of Transportation.

By shortly after 10:30 a.m. there were only residual delays through the scene.

Earlier, a crash in the northbound lanes of I-95 near Broward Boulevard was blocking a lane and had the exit ramp to Broward Boulevard closed.

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Surveillance released of possible hit-and-run vehicle

Police have released surveillance video of the possible vehicle that struck a man and left him in critical condition.

Police are asking the public for any information regarding the driver that struck 70-year-old Charlie Kimball,

The surveillance footage was released Wednesday. It features a vehicle driving north on Northwest Seventh Avenue, at 9:17 p.m. on July, 16t, the night Kimball was hit and left for dead. "You're looking at Seventh Avenue, looking northbound and what's gonna come in the frame now is a vehicle of interest that we believe might have struck the pedestrian," said Miami Police Sergeant Luis Taborda.

The black sedan seen on video might be the possible getaway car seen from two different angles on surveillance. Police believe it could be the driver that hit Kimball. "They originally told us that is was a black four-door vehicle with a pointy front-end," said Taborda. "From this angle, you can't really see it too much of the vehicle other then the doors. The color matched the description that they gave us."

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Turbulence injures 12 on American Airlines flight

Tuesday turned into a turbulent day in the skies around the country, as three flights were met by emergency crews immediately upon landing.

In Miami, American Airlines Flight 1780, landed with 12 injured people - five of them were rushed to the hospital. Two of the five people taken to the hospital were crew members on that flight. Passengers with minor injuries were treated at the gate.

One man aboard told CBS News, "I thought we were going to die. It was scary."

The Miami-bound Boeing 757 took off from Aruba just after 3:30 p.m. local time with 185 passengers. About 30 minutes from landing, severe turbulence jolted the aircraft for a full 15 seconds, launching people from their seats and even slamming one woman into the ceiling after she got up to secure her son.

The boy said, "I was in the bathroom...I hit myself in the knee. The bathroom went crazy and I just ran to my seat."

The two other flights were actually diverted off-course. The first, a Delta flight headed from Minneapolis to St. Louis, made an emergency landing in Cedar Rapids, Iowa, after it lost one of its engines. All 150 people on board landed safely. Across the country, however, five crew members were taken to the hospital in Philadelphia. US Airways Flight 720 out of Charlotte, N.C., was forced from its destination to Rome, when fumes on board caused several passengers to become nauseous.

None of the injuries sustained in either of the Philadelphia or Miami incidents appear to be life-threatening. American Flight 1780 even arrived on-time at Miami International Airport at 6:00 p.m.

One woman on that flight said, "That's my first experience and I don't want it to happen again. But everything is fine now."

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The 4th DCA has Spoken: Public Adjusters Can Attend EUOs

While I have always believed PAs can be in attendance at EUOs, many public adjusters have been forced out or threatened by defense counsel, to prevent their attendance.  The 4th DCA has spoken and it is in agreement that you may attend.  Although this opinion in out of the 4th and no other jurisdictions have weighed in, it is pretty clear that you, as the PA, can likely attend in any jurisdiction (assuming, of course, the policy language is the same as it is in this opinion).  Of course, should you receive opposition, present a copy of this opinion to defense counsel.  As is obvious, do not provide legal advice/opinion and always advise your client that he/she has a right (and in many, if not all, cases) to be represented by legal counsel at an EUO. 


It is nice to see an opinion going in favor of the insur ed for a change!  Now, I bet we can expect that the insurance companies will change the language in their policy to exclude you – so be careful.


Best regards, 

David S. Farber

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Two workers hurt in MIA scaffolding collapse

Two employees of a Coral Gables glass company were hospitalized after scaffolding they were using fell as they worked at a Miami International Airport gate.

Juan Alvarez, believed to be in his 40s, and Anibal Amador, thought to be in his 60s, were working at gate D-9 on Concourse D in an area closed to passengers.

According to the owner of Coral Gables Glass and Mirror, Alvarez and Amador were attempting to repair a glass panel when the glass fell. That caused the scaffolding to collapse, and both men plummeted to the ground.

Both men were airlifted by Miami-Dade Fire Rescue to Jackson Memorial Hospital for treatment.

The hospital will not release the workers’ condition because Alvarez’s family has requested privacy. However, the victims appeared to be conscious, according to passengers who witnessed the accident.

“Someone came with a stretcher,” said passenger Hannah Blum, who said she and other passengers were caught completely off-guard.

“I got off the plane, and I saw this crash on the moving stairwell, and I was like, ‘Wow. What just happened?’” said Blum.

“There were a lot of people who were panicking, talking to police, saying something had fallen from the sky,” said Passenger Alex Davenport.

The cause of the accident is under investigation.

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Reality Television and the Limitations of Copyright

Recent weeks have seen much entertainment industry and legal attention to an aggressive dispute between two networks over a pair of "reality" television shows. CBS has broadcast Big Brother in the United States since 2000, and it got wind of a prospective but as-yet uncompleted show entitledThe Glass House it believed ABC was developing for a June 18, 2012 debut. In general, both shows involve a group of people living together in a house, sequestered from the outside world, continuously monitored by numerous television cameras, and on both shows contestants are eliminated over a respective season until there is a prize winner. In May, after warning ABC not to proceed, CBS filed a lawsuit in federal court, alleging copyright infringement, trade secret misappropriation, unfair competition, and various other breaches and wrongdoing. CBS vested particular ire in the claim that several former Big Brother employees had been engaged to work on ABC's show, though the conflation of that part of the complaint with the copyright count underplayed the separable nature of the alleged breach of employment obligations and any potential infringement by the ABC show as it might be finally produced.

On June 15, the presiding judge announced that, in accordance with relevant precedent, he was inclined to deny CBS' request for a temporary restraining order to halt ABC's airing of its show, which, in fact, proceeded as scheduled. CBS appeared so frustrated at the foregoing that it issued a press release sarcastically announcing two imaginary shows, Dancing On the Stars andPostmodern Family, both mocking current ABC properties. On June 21, the matter interimly culminated when the judge issued a detailed civil minute opinion finding that CBS was unlikely to prevail on the merits, that it had failed to demonstrate entitlement to the relief it sought, and denying an order to show cause for a preliminary injunction. My instinct, however, is that CBS is too astute and is too well-represented not to have expected the court's reasoning and these results. If so, what motivates the relentless attempts by reality TV plaintiffs to seek injunctive and damage relief that courts are simply not granting?

There can be no doubt that, in the mind of the public, the industry press and blogosphere, and, often, even in the words of plaintiff's learned counsel in this kind of case, the second and subsequent shows in what is a typical cycle of seriatim reality programs with a similar premise -- without any aspersions cast, think of American IdolAmerica's Got Talent, and The Voice, orPawn Stars and Hardcore Pawn, or any reality show about finding, buying, selling, or remodeling a house -- inevitably provoke pejorative rubrics such as "copycat" and "knock-off" despite the absence of meaningful judicial concurrence. The simple problem faced by irked plaintiffs searching for a way to prohibit subsequent reality TV shows of similar content, however, is that American copyright law was neither Constitutionally conceived nor legislatively drafted to prohibit that sort of "copying." Indeed, it was designed to permit it. The operative principle is that copyright law does not protect basic ideas -- that is, say, a show featuring a talent competition or the activities in a pawn shop -- but, rather, only the original and concrete expression of such ideas. The difference is embodied in a doctrine called the "idea-expression dichotomy," and while a precise, one-size-fits-all definition of the idea-expression boundary has always been elusive, for our purposes a progression from abstraction to concreteness in detail is helpful and illustrative. To violate an author's valid copyright, it is thus not enough that another work comprises merely similar ideas, or even that its ideas were, as commonly understood, "copied." The standard instead is one the courts call substantial similarity, which evidences a significantly higher coincidence of shared expressive content.

The dimensions of comparison in substantial similarity analysis may include plot, characters, dialogue, sequence of events, setting, tone, and theme, which the works in question must be demonstrated to share as concrete expression to a high degree. Some plaintiffs, seemingly aware that they can adduce only scant similarities among the above touchstones, also rely on a stopgap claim of "compilation," alleging that facts or ideas are collated or ordered in a similar way. The Supreme Court has ruled, however, that a compilation- based copyright is on narrow grounds, or "thin," such that the infringement must be virtually identical, a level beyond substantial similarity. Moreover, there are certain classes of similarities, however, even if present, that cannot form the basis for a finding of substantial similarity between two works if they constitute one or more of the following: a mere inexpressive idea, fact, or concept; predictable stock content common to a genre; material found in third-party works extant prior to the plaintiff's creation; a taking considered a "fair use" for legal and policy reasons; or material already in the public domain. Applying the above generally, while copyright law would not protect the bare idea for a movie with an abstract, archetype lawman, a bad guy, and a shootout, it would much more likely protect the aggregate, concretely described and expressive lawman, bad guy, and shootout elements of, say,High Noon or Die Hard.

The courts have extended to reality television the same copyright principles and standards as were developed primarily in the fictional or dramatic context. In a line of cases dating back to -- guess what? -- the 2003 prior match where CBS lost its claim that ABC's I'm a Celebrity, Get Me Out of Here! infringed Survivor, courts that decided the matter have declined relief to reality TV plaintiffs, largely on the basis that the defendants' shows simply shared ideas or stock elements. The actual progression of incident, the concrete specifics of the "characters" (the hosts, announcers, contestants, coaches, and other participants), the words they uttered, and the expressive content, design, and detail of the setting, all taken together, were quite different where the law demands that they be quite -- or "substantially" -- similar, and even where they shared certain similar ideas.

Were the governing copyright principles to be otherwise, then, for example, the first talk show featuring an announcer, a live band, a stand-up comedian host, a raised stage arranged with a guest couch and the host's desk, silly games played with audience participation, two celebrity guests, and a concluding musical act could purport to secure an exclusive copyright to the above as against subsequent talk shows with the listed similarities, an intuitively absurd result, and one contrary to sound policy. The same could be said of two classic situation comedies, I Love Lucy and The Dick Van Dyke Show, where both shows feature a family which includes a father in show business, a housewife mother, a son named Ricky or Ritchie, set principally in the family's living room and the father's workplace, where the family closely interacts with its immediate neighbors who often drop in unannounced, and where the mother's antics often get her in trouble with her husband. Once again, the two shows are not substantially similar because they only share the commonality of the above abstract ideas, not their expression, which lies in the concrete realization of those ideas, and which, compared show-to-show and episode-to-episode, differed fundamentally as to story, more specific character details, and so on. Had the above or comparable lists of idea similarities been exclusively protected at the dawn of talk shows or situation comedies, the development of entire genres of television and those who work in them might have been impermissibly curtailed.

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Hebrew National hot dogs not kosher, lawsuit claims

ConAgra Foods Inc has been sued by consumers who contend that hot dogs and other products sold under its Hebrew National brand are not kosher.

The lawsuit alleges that meat processing services provided to ConAgra by privately held AER Services Inc fell short of the standards necessary to label Hebrew National products as kosher. As a result, they said, ConAgra misled consumers and was able to charge premium prices.

Eleven individual consumers filed their complaint in May in Minnesota state court. ConAgra moved the case this month to a federal court in St. Paul. The lawsuit was reported last week by American Jewish World, a publication based in Minnesota.

According to the complaint, Omaha, Nebraska-based ConAgra marks Hebrew National packages with a "Triangle K" symbol, and represents that the contents are kosher "as defined by the most stringent Jews who follow Orthodox Jewish law."

But the plaintiffs said in the complaint that AER supervisors "did little or nothing" to address employee complaints that the meat processed for ConAgra was non-kosher. They also said Skokie, Illinois-based AER fired or threatened retaliation against those who complained.

ConAgra spokeswoman Teresa Paulsen said in a statement on Monday: "While we can't comment on pending litigation, we stand behind the quality of Hebrew National and its kosher status."

AER is not a defendant in the lawsuit. "The allegations in the complaint regarding AER are completely and utterly false," Shlomoh Ben-David, AER's president, said in a telephone interview. "There is no basis for them, and they are without any merit."

ConAgra has long used the slogan "we answer to a higher authority" to promote Hebrew National products.

The plaintiffs are seeking unspecified damages and an injunction against further mislabeling. Their lawsuit seeks class-action status for U.S. purchasers of Hebrew National products over the last four years, and alleges negligence and violations of state consumer fraud laws.

"This is an invisible fraud," Hart Robinovitch, a lawyer for the plaintiffs, said in a phone interview. "How does a consumer who thinks he is buying kosher meat really know he is buying kosher meat? It's a very, very difficult thing for a consumer to detect, unless someone investigates."

Other ConAgra brands include Chef Boyardee, Healthy Choice, Peter Pan and Reddi-wip, and are not part of the lawsuit.


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David Farber Named to Top 100 Florida Super Lawyers List for 2012

David Farber, a Miami area attorney specializing in personal injury, copyrights/trademarks and insurance disputes has been named as one of the Top 100 Florida Super Lawyers again for 2012. The Top 100 Florida Super Lawyers list, published by Super Lawyers magazine, recognizes only five percent of Florida attorneys. 

The Florida Super Lawyers list is a professional listing of attorneys from numerous areas of litigation who have been selected for their personal and professional achievements in the legal profession by their peers and independent evaluation. 

Mr. Farber began his legal career representing defendants, through insurance companies, in complex civil and commercial litigation matters, which included insurance coverage disputes, doctors/hospitals for claims of medical malpractice, nursing home/assisted living facilities for claims of abuse as well as the defense of personal injury, wrongful death, auto accidents, premises liability, negligence claims, and business disputes. During his tenure at this state-wide defense firm, Mr. Farber supervised a team of attorneys and was instrumental in the firm's growth from 17 attorneys to over 80 attorneys in less than six years. 

David Farber was also named to Florida's Legal Elite list for 2012. The Farber Law Firm offers legal counsel relating to intellectual property, personal injury and insurance disputes. The firm is located in Coral Gables, Florida. More information can be found at

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Whistleblower Cases Are on the Rise

Around the country, whistle blower cases are becoming more prevalent.  Most of these cases arise out of different disciplines within the health care industry and studies have shown that a significant amount of Medicaid and Medicare charges are in fact, fraudulent.  As a result, consumer litigators are bringing lawsuits alleging fraud in varying different degrees, to include, but not be limited to,: 

Billing for services not performed; 

Charging services for individuals who have passed on; 

Charging twice for the same service; 

Providing fee items or benefits in exchange for a Medicare/Medicaid number which can then be used to process fraudulent services; 

Someone other than a licensed medical doctor completing the form indicating that the service required is medically necessary; and Charging for expensive equipment, services, or drugs while only providing cheaper alternatives. 

Many of these whistleblower cases are investigated and prosecuted with a partnership between a private law firm and the Department of Justice. These cases are generally filed under seal to protect the whistleblower and the identity of the company.  If the DOJ decides to intervene, the government can recover treble damages against the offending company under the law, and private plaintiffs and their counsel can, in some cases, recover as much as 30% of the amount recovered by the government. 

If you are aware of Medicare/Medicaid fraud or want to know your rights as to an illegal practice occurring at your work place, contact The Farber Law Firm, we may be able to help!

By David Farber

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It's Never Too Early to Start Protecting Trade Secrets and IP

Who owns a company’s best ideas? When employees and companies part ways, complicated ownership disputes can arise over rights with respect to IP, trade secrets, and other confidential company information. It’s a topic that came up as a discussion on the LinkedIn page of In The House—a web-based professional networking community for in-house counsel—so we asked a few ITH lawyers with in-house experience how companies can ensure that when employees leave, they don’t take valuable information or intellectual property with them.

All of the lawyers who posted to the discussion thread agreed that the best time to formally define trade secret and intellectual property parameters is when the employee first walks through the door, not when they’re headed for the exit.

William Wilson, former in-house counsel at Motorola Inc. and Siemens Corporation, says that the beginning of employment is “the one golden opportunity you have to make the relationship clear.” This can be especially important under certain state employment statutes—some states make it more difficult to keep trade secrets and other confidential information under wraps if agreements aren’t solidified during the hiring process. 

The Uniform Trade Secrets Act provides a federal framework for protection of trade secrets. A handful of states—including New York—have not adopted the UTSA, but those states do have their own version of the federal law. All of which means there can be some confusion about what needs to be done at the time of hiring. “If there are any ambiguities in terms of what’s going to constitute a trade secret,” says Wilson, “clarify in the employment agreement.”

Depending on whether the company is located in a state that allows them, Wilson says the employer might also consider the value of adding a non-compete agreement to the employment contract in order to protect confidential information from traveling into a competitor’s office with an ex-employee.

When it comes to IP, not all states have codified invention statutes. Wilson urges employers to make it very clear in the initial employment agreement that ownership of anything worked on in the line of business is assigned to the company—and not to the individual.

Deirdre O’Callaghan, most recently general counsel of Gas Turbine Energy, says she has required individuals to sign non-disclosure agreements during pre-employment negotiations. “Sometimes you have to divulge confidential information at a time they’re not yet an employee,” she notes. 

O’Callaghan says there are different risk levels to consider, depending on how IP-centered the company is and how exposed to confidential information the employee will be. Even companies with little intellectual property have trade secrets, O’Callaghan points out. An employer can cover its bases with respect to non-disclosure through a company-wide policy contained in its employee handbook. Even if the company doesn’t use employment agreements, it should have an employee handbook, she says: “For a lot of companies, that’s all you really need.”

But for those employers with higher levels of IP at the core of their business, O’Callaghan recommends having employees sign an IP terms and conditions agreement, which establishes company ownership of anything the employee develops while working for the company. 

She stresses the importance of having not just product developers sign these agreements, but also paralegals, finance officers, and anyone else who might come in contact with sensitive information.

Wilson agrees, adding that even outsiders can be exposed to sensitive material. “Some companies do a good job of papering employee agreements,” he notes, but they aren’t as careful with vendors and other outside partners.

For employees working in development, O’Callaghan says it’s crucial to “establish what’s the company’s and what’s the employee’s.” Often employees bring base patents with them to a new job. If the patent has been filed with the U.S. Patent and Trademark Association, she says it’s easy to define what the employee owns. “But if it’s just an idea, it’s much harder.”

Cathy Duclos specializes in employment law as an associate general counsel at Technicolor USA Inc. She says that standard confidentiality and assignment of inventions agreements allow employees to list prior inventions. “They have the chance to say, ‘I own this and I’m not giving it to you,’ ” says Duclos. But she has seen disputes arise because managers made the mistake of not carefully reading the list. 

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Consumer group: Claims software helps insurers 'low-ball' customers

Claims software used by many large auto and homeowners insurance vendors in the U.S. has allowed the companies to manipulate claim payments and "low-ball" customers, according to a new report from the Consumer Federation of America.

Injury evaluation software, including CSC's Colossus package, allows insurance companies to "tune" payment perimeters and reclassify injuries as less serious than the diagnosis from a doctor, said the report, by Mark Romano, a former Colossus expert at Allstate Insurance, and Robert Hunter, a former insurance commissioner for Texas.

The claims software, adopted by many U.S. insurance companies in the past 15 years, "has enabled many insurers to increase profits by reducing the amount paid to consumers who filed bodily injury liability claims," the report said.

Some insurance vendors have touted savings of about 20% after moving to claims software from using human adjusters, the report said.

The American Insurance Association, a trade group, questioned the results of the study, saying that most insurers use other methods, in addition to claims software, to determine payouts.

"While these useful tools help to apply fairness and consistency to the claims handling process, generally, trained claims adjusters are involved throughout the process," Willem Rijksen, vice president of public affairs at the trade group, said in an email. "Insurers are in the business of fairly and equitably paying claims as overseen by a well regulated insurance marketplace."

CSC said Colossus helps insurers assess the severity of injuries, but does not make payments.

"Because the Colossus application helps insurance adjusters bring fairness and consistency to the claims process, we do not believe that consumers should be concerned about the potential for 'low-ball' claims," Ed Charlton, a vice president in CSC's property and casualty insurance division, said in an email. "Payments are negotiated between the insurance company and its claimants."

The software contains a large knowledge base of medical and insurance-adjusting information, he said. The software brings consistency to claims, "while still allowing the claims professional to consider and factor in unique claim attributes before determining the fair value for any individual claim," he added.

More than half of the 20 largest auto and property insurance companies in the U.S. use CSC's Colossus, and many others use similar products from competitors, Hunter said. The claims software market is largely unregulated by state insurance agencies, and "I'm convinced there are millions of Americans still at risk," he said.

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Are You Getting All You Should From Your Miami Florida Insurance Claims?

Don’t settle for low-ball offers from your insurance company.  You have another option with The Farber Law Firm, your Coral Gables Insurance Dispute Attorney.

If you, a client, friend, or colleague had a property or other insurance loss that was either denied by an insurance company or you were not fully compensated to cover the damages, or the insurance company is acting in bad faith, The Farber Law Firm can help you. 

An important report in the Huffington Post outlines how insurance companies have dramatically increased their profits by employing a model for handling claims popularized in the mid-1990s, often to the detriment of the policyholder. 

CNN’s 360 With Anderson Cooper recently presented an in-depth report about Miami questionable insurance practices at the nation’s two largest auto carriers – Allstate and State Farm. The story showed that many times consumers with Miami liability claims covered by South Florida insurance medical claims were challenged in court and given a fraction of what they needed to cover expenses. 

McKinsey & Company, a global management-consulting firm, is credited for starting the trend when it presented Allstate and others with a new system for increasing profits in the early 1990s. The new computer-driven method for adjusting claims would intentionally produce low offers to claimants, with the expectation that most would be accepted. Those that weren’t would be significantly delayed and likely lead to lengthy and costly Coral Gables insurance litigation. 

McKinsey reportedly presented its plan to Allstate via 12,500 PowerPoint slides, one of which summarized the impact of the new system: “Improving Allstate’s casualty economics will have a negative economic impact on some medical providers,  Coral Gables plaintiff attorneys, and claimants. … Allstate gains — others must lose.” 

The proof was in the pudding. Allstate doubled its earnings in the 1990s, characterized as a “stunning increase” that reduced paid claims to around 30 percent below the market cost. 

The Huffington Post report asserts that Allstate is “the best-known use of the McKinsey model” while it also sits at the top of the American Association of Justice’s Ten Worst Insurance Companies in America list. But they are far from alone. A management consultant and former business professor who has studied the insurance industry’s evolution into a profit-driven machine told the Post that “the companies that take in 70 percent of total insurance profits in the United States now abuse their obligations to their policyholder.” 

Attorney David J. Berardinelli, author of the book that details Allstate’s claims strategies, “From Good Hands to Boxing Gloves,” and I appeared simultaneously as policyholder advocates on a talk radio show where we discussed the treatment of policyholders by the insurance industry and provided practical advice to those who have suffered an Miami Florida insurance loss. 

Don’t be a victim of this abuse. We can help. The Farber Law Firm takes care of the hassle of dealing with insurance companies, on your behalf.  In order to obtain the benefit of your hard-earned premium, you can access our considerable experience litigating against insurance companies to meet their obligations. 

For our Public Adjuster allies who fight tirelessly on behalf of policyholders, The Farber Law Firm is adept at working with you in your continued fight against misbehaving insurance companies on behalf of our mutual clients. 

If you, a client, friend, or colleague had a property or other insurance loss that was either denied by an insurance company or you were not fully compensated to cover the damages, or the insurance company is acting in bad faith, The Farber Law Firm can help you. 

The Farber Law Firm handles a wide range of commercial and Miami residential Insurance Disputes including: 

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If you, a client, friend, or colleague had a property or other insurance loss that was either denied by an insurance company or you were not fully compensated to cover the damages, or the insurance company is acting in bad faith, The Farber Law Firm can help you.

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All pain, no gain for Citizens insurance customers

Paying more and getting less is the new motto for homeowners stuck with state-run Citizens Property Insurance. Old and new customers alike are getting socked with rate hikes, higher deductibles, more exclusions…and no place else to turn for hurricane coverage.

"I was just so happy to get a renewal notice and not a cancellation notice, I didn't really pay attention to the other stuff," said Ira Goldstein, 55, of Delray Beach.

Goldstein's private insurer dropped him in 2010, when his home developed problems with Chinese drywall. In two years with the state-run insurer of last resort, Goldstein's premium has jumped from $1,667 to $2,106, a 26 percent increase.

Higher rates and diluted coverage are going to be recurring themes in coming years for Citizens policyholders, as company executives and state politicians try to shrink the customer base from its current 1.45 million. Citizens, which had only 1 million policies a few years ago, keeps growing as private insurers flee the state or go bankrupt.

The problem: Citizens is a virtual monopoly in many areas, including large swaths of South Florida, so there is no consumer choice. For many of the 337,000 Citizens customers in Broward and Palm Beach counties (myself included), there is no private insurance alternative. And if private insurers won't come back until rates are allowed to climb to the stratosphere and Citizens bleeds us dry getting there, then a competitive market seems pretty meaningless.

When longtime Fort Lauderdale resident Sherry Friedlander got her Citizens policy renewal earlier this year, she balked at the $4,000 windstorm premium and $38,000 deductible.

"It means I have to pay $42,000 out of pocket before I see one dime after a storm," said Friedlander, who lives east of Federal Highway. "I called my agent and asked who else is writing hurricane policies. He said, 'Nobody.'

So she did something dramatic. She dropped her windstorm policy.

"A lot of my neighbors have done the same thing," Friedlander said. "I'm not happy about it."

Because she owns her home outright and doesn't have a mortgage, she has the option of "going naked" when it comes to property insurance. But homeowners with mortgages are required to carry insurance by their lenders. If homeowners can't find insurance on their own, exorbitant "lender-placed" insurance is imposed.

Property insurance rates might not be high enough to be "actuarially sound" for private insurers spooked by Hurricane Andrew and the freak 2004-2005 storm years, but they're plenty high enough for homeowners battered by the housing meltdown, flat wages and high unemployment.

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ICANN targets May 22 to resume name expansion

The organization overseeing a major expansion of Internet address suffixes hopes to resume taking proposals on May 22 following a technical glitch that shut down its computer system for weeks.

Last month, the Internet Corporation for Assigned Names and Numbers abruptly shut down a system for letting companies and organizations propose new suffixes, after it discovered a software glitch that exposed some private data. The data in some cases offered clues about which companies were proposing what suffixes - details that were supposed to be confidential. ICANN said it had no evidence that anyone intentionally viewed the data.

If it can accept proposals again as planned, the application window will run until May 30.

The original deadline was April 12, but ICANN shut down the system just hours before it was to close. At the time, ICANN planned to reopen the system within four business days. Instead, it found it needed more time  to figure out why the software had failed and how to fix it. It also had to notify affected applicants.

Up to 1,000 domain name suffixes - the ".com" part of an Internet address - could be added each year in the most sweeping change to the domain name system since its creation in the 1980s.

From a technical standpoint, the names let Internet-connected computers know where to send email and locate websites. But they've come to mean much more.

The idea behind the expansion is to let Las Vegas hotels, casinos and other attractions congregate around ".Vegas," or a company such as Canon Inc. draw customers to "cameras.Canon" or "printers.Canon." The new system would also make Chinese, Japanese and Swahili versions of ".com" possible.

The delay shouldn't have a major effect on the availability of new suffixes, as the new names won't appear in general use until at least next spring anyway - in many cases, much later.

Before ICANN suspended applications, it had received 2,091 submissions - fully completed or in progress - and another 214 for which it was still awaiting or processing application fees. That means applications will be divided into at least four batches of about 500 each, potentially stretching the review process over a few years.

Each application costs $185,000. Applicants had been allowed to withdraw bids for a partial refund, but ICANN said this week that they could get all their money back because of the glitch if desired.

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Coupon, You’re On: 3 Opinions Say Lawyers May Participate in Daily-Deal Websites

Ethics opinions issued recently by three state bar associations suggest that it’s OK for lawyers to jump on the deal-of-the-day coupon bandwagon. The concept is straightforward. A number of websites—Groupon is probably the best known—send subscribers emails offering discounts on various products and services, which the subscribers can purchase online. The deals include meals, spa treatments, fitness plans and home repair services. There is growing interest in offering legal services through these sites, as well.

But lawyers have been scared off by concerns about how website operators collect their fees from vendors. Typically, an operator receives a percentage of each coupon or daily deal at the time it is sold, regardless of whether a purchaser actually claims the service or whether a participating lawyer ever receives his or her fee. Any fee the lawyer does receive is reduced by the amount that goes to the website operator.


The ethics question for lawyers is whether that kind of payment arrangement amounts to fee splitting with nonlawyers, which is prohibited by Rule 5.4 of the ABA Model Rules of Professional Conduct, as well as the ethics rules of all the states. (The Model Rules are the direct basis for professional conduct codes in every state except California.)

But opinions issued late last year by the South Carolina Bar, the North Carolina State Bar and the New York State Bar Association all concluded that the fee arrangements pass muster under their versions of Model Rule 5.4. Accordingly, they gave lawyers in those states the green light to participate in deal-based websites.

“If you had a literal reading of the rule, you might think daily-deal sites are a division of fees. But if you look at the purpose of the rule prohibiting fee sharing, you come to the conclusion this is not problematic,” says Will Hornsby Jr., staff counsel for the ABA Standing Committee on Delivery of Legal Services and an authority on ethics rules relating to lawyer advertising and marketing. And all three opinions “peeled the onion,” he says, to closely examine how daily-deal arrangements differ from fee sharing between lawyers and nonlawyers that is prohibited by the ethics rules.

The South Carolina Bar’s opinion, for instance, analyzed the fee-splitting question two ways to reach the same conclusion.

Under one analysis, the fee charged by the website operator amounts to payment of the reasonable cost of permitted advertising by a lawyer rather than sharing the lawyer’s fee, states South Carolina Advisory Opinion 11-05. “The fact that the charge for this form of advertising service is deducted up front by the company rather than invoiced and then paid from the lawyer’s operating account does not transform the transaction from the payment of advertising costs into an improper fee split,” the opinion states.

The alternate analysis takes the approach that the transaction does constitute fee splitting. But the arrangement still is permissible, states the opinion, “provided the website does not have the ability to exercise any control over the services which are to be subsequently rendered by the attorney.” Sharing fees with a nonlawyer “may be permitted where the circumstances do not suggest any encroachment on the lawyer’s independent judgment,” the opinion notes.

“I’m confident that kind of arrangement is not an improper sharing of fees with a nonlawyer,” says Michael J. Virzi, a legal writing instructor at the University of South Carolina in Columbia who chairs the state bar’s ethics advisory committee. “Say I recommend a lawyer because he will give me a kickback; then the consumer is not getting an honest recommendation. These websites aren’t really recommending anyone. They will take as many advertisements as there are lawyers who want to advertise.”

While the opinions agree that it is permissible for lawyers to participate in daily-deal websites, they all caution lawyers to use the sites carefully to avoid other potential ethics pitfalls.

One problem to avoid is the premature or improper formation of a lawyer-client relationship. A lawyer should run a conflicts check before under taking the representation and determine that he or she is competent to represent the client in the matter. If the lawyer determines that the relationship should not go forward for either of those reasons, the lawyer should give the coupon holder a full refund.

Lawyer communications related to coupon offers also must meet lawyer advertising requirements set forth in the state versions of Model Rules 7.1 and 7.2, the opinions state. “The offered discount must not be illusionary, but must represent an actual discount from an established fee for the named service. Otherwise the advertisement would be misleading,” states Opinion 897, issued by the New York bar on Dec. 13.


The opinions may be helping to carve out some new thinking about how law firms communicate their fee information to potential clients, says Ronald C. Minkoff, a partner at Frankfurt Kurnit Klein & Selz in New York City.

Traditionally, he notes, some in the profession have frowned on attorneys advertising discounted legal services. “There have been people who say that’s not appropriate,” says Minkoff, who heads up his firm’s professional responsibility group. “It makes us look like we’re in the bazaar, not practicing law. But courts say you’re allowed to do that. You’re letting people know what your prices are.”

Some ethics experts say deal-based advertising is appropriate for flat fees, but not retainers or legal services provided on an hourly basis. Minkoff disagrees. A lawyer could, he says, offer a $3,000 retainer for $1,500. “As long as the advertising is not misleading, it’s understood what the $1,500 will buy and you’re competent to do the work, I don’t see where it would be more of a problem than anything else.”

The opinions differ a bit on what should happen if the purchaser of a discount coupon for legal services doesn’t use it.

The North Carolina bar’s Formal Ethics Opinion 10 (issued Oct. 21) states that if a coupon purchaser fails to claim the legal service before the coupon’s expiration date, the lawyer must refund the payment. If the purchaser still wants to hire the lawyer after the coupon expires, the lawyer may charge his or her actual rate, crediting the client’s coupon payment toward the bill.

Alternatively, the New York opinion concludes that a lawyer “is entitled to treat the advance payment received as an earned retainer for being available to perform the offered service in a given time frame.” (The South Carolina opinion doesn’t address the issue specifically.)

Minkoff is surprised that the New York opinion doesn’t address the question of whether coupons should have expiration dates. “The notion of putting some kind of time pressure on a person to make a decision,” he says, “is not something that people would be happy with, with our rules.”


The practical question is whether online coupon advertising will catch on with lawyers.

Robin Iori, a marketing director based in Chicago, notes that using such services might be limited to one-time hits, rather than the repeat business most lawyers want. “I don’t necessarily think it would build a really great practice because you’re going in with the idea of discounting it from day one,” she says. But, she notes, younger legal consumers—who grew up with the Internet—might find coupon sites a desirable way to seek out legal services.

In Minkoff’s view, coupon sites might be one more marketing approach worth trying. “There are plenty of lawyers who advertise and get strange people coming off the streets based on ads. That’s their business model,” he says.

“I couldn’t really see doing it myself personally. But in my view, if people think it can work and it makes legal services more accessible, then it’s a good thing.”

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