Arnstein & Lehr Llp Fall 2009 Update Newsletter

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Florida Supreme Court throws out ‘false light’ invasion of privacy cause of action By Joel B. Rothman, Partner Board Certified in Intellectual Property Law In Rapp v. Jews for Jesus, the Florida Supreme Court ruled that the cause of action for false light invasion of privacy is not a valid cause of action in Florida. False light invasion of privacy occurs when information is published about a person that is false or places the person in a false light, is highly offensive to a reasonable person, and is published with knowledge or in reckless disregard of whether the information was false or would place the person in a false light. Although this tort is similar to defamation, it is not the same. The report need not be defamatory to be actionable as false light. False light includes embellishment (false material added to a story, which places someone in a false light), distortion (the arrangement of materials or photographs to give a false impression) and fictionalization (works of fiction containing disguised characters that represent real people or references to real people in fictitious articles). The plaintiff in Rapp filed suit against Jews for Jesus in response to the publication of the account by the stepson of the plaintiff about the stepson’s visit with the plaintiff and the stepson’s ailing father, the plaintiff’s husband. The newsletter account read: I had a chance to visit with my father in Southern Florida before my Passover tour. He has been ill for some time and False Light Continued on page 2

Firm hosts third annual Woman of Vision luncheon Arnstein & Lehr presented Anne R. Pramaggiore, the newly named president and chief operating officer of ComEd, with its 2009 Woman of Vision Award at a luncheon for women business Chicago Partner Cynde Hirschtick Munzer (center) leaders on July 23. wtih ComEd President Anne Pramaggiore the 2009 Arnstein & Lehr Woman of Vision recipient and More than 150 Monica Weed, vice president and general counsel, of Chicago’s top female business and Navigant Consulting. professional leaders were in attendance for this year’s event. The award, sponsored by the firm’s Diversity Committee, recognizes and honors groundbreaking, inspirational women who have made a difference in the professional world. “I am honored to be the recipient of Arnstein & Lehr’s Woman of Vision award,” Pramaggiore said. “The firm’s Diversity Committee supports, advocates and exemplifies commitment to a diverse and inclusive workplace, which is a core business value for ComEd and something I am very passionate about. I applaud the committee for their efforts and especially thank all of the women who attended the luncheon.” Pramaggiore joined ComEd’s legal team in 1998. In her current role as president and chief operating officer, Pramaggiore is responsible for overseeing the day-to-day operations of ComEd, which has 5,900 employees and revenues of approximately $6.1 billion. A r n s t e i n & L e h r U p d at e

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False Light Continued from page 1

Joel B. Rothman is a partner in the firm’s West Palm Beach office. Board certified in Intellecual Property Law, Mr. Rothman represents individual and corporate clients in intellectual property infringement litigation involving patents, trademarks, copyrights, trade secrets, trade libel and related commercial matters. His litigation practice also includes significant focus on electronic discovery issues such as e-discovery management and motion practice relating to e-discovery. Mr. Rothman also files applications for trademark and copyright registrations, represents companies in licensing and acquisitions, and advises clients on information security and privacy matters. Mr. Rothman has significant employment litigation experience as well, including defense of Fair Labor Standards Act, wrongful termination, and discrimination matters. A substantial portion of Mr. Rothman’s practice is devoted to representing dietary supplement companies in FDA and FTC regulatory matters, transactions and litigation. Mr. Rothman publishes the Nutritional and Dietary Supplement Law Blog at www.nutrisuplaw.com that provides information and resources on laws and regulations that apply to the manufacture and sale of supplements, functional foods, and cosmetics.

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I was afraid that I may not have another chance to be with him. I had been witnessing to him on the telephone for the past few months. He would listen and allow me to pray for him, but that was about all. On this visit, whenever I talked to my father, my stepmother, Edie (also Jewish), was always close by, listening quietly. Finally, one morning Edie began to ask me questions about Jesus. I explained how G-d [sic], gave us Y’Shua (Jesus) as the final sacrifice for our atonement, and showed her the parallels with the Passover Lamb. She began to cry, and when I asked her if she would like to ask G-d for forgiveness for her sins and receive Y’Shua she said yes! My stepmother repeated the sinner’s prayer with me-praise G-d! Pray for Edie’s faith to grow and be strengthened. And please pray for my father Marty’s salvation. Based upon this publication, which the plaintiff claimed placed her in a false light regarding her religious beliefs, the plaintiff filed suit against Jews for Jesus. The plaintiff also asserted claims for defamation and intentional infliction of emotional distress. The trial court dismissed the initial complaint. An amended and second amended complaint were also dismissed, and the plaintiff appealed. On appeal the Fourth District Court of Appeal rejected the defamation claim but certified the question of whether Florida recognized a claim for false light invasion of privacy to the Supreme Court of Florida. The Supreme Court discussed two concerns raised by other courts that have rejected the tort of false light: (1) it is largely duplicative of defamation, both in the conduct alleged and the interests protected, and creates the potential for confusion because many of its parameters, in contrast to defamation, have yet to be defined; and (2) without many of the First Amendment protections attendant to defamation, it has the potential to chill

speech without any appreciable benefit to society. With regard to the first point, the Court noted that defamation law already encompasses claims that would fall under the definition of false light, such as “the concept that literally true statements can be defamatory where they create a false impression.” The Court referred to this as “defamation by implication” and cited several Florida DCA opinions that have discussed the tort. As to the second point, the Court discussed the different standards applicable to the tort of false light versus defamation. As the Restatement explains, it is “not . . . necessary to the action for invasion of privacy that the plaintiff be defamed. It is enough that he is given unreasonable and highly objectionable publicity that attributes to him characteristics, conduct or beliefs that are false, and so is placed before the public in a false position.” See Restatement (Second) of Torts § 652E cmt. b. For the tort of false light, the standard is whether the statement is highly offensive to a reasonable person. Id. § 652E(a). Conversely, a defamatory statement is one that tends to harm the reputation of another by lowering him or her in the estimation of the community or, more broadly stated, one that exposes a plaintiff to hatred, ridicule, or contempt or injures his business or reputation or occupation. For the court the critical issue boiled down to the fact that false light is defined in subjective terms versus defamation which is defined more objectively. The court also raised First Amendment concerns. According to the Court, the false light “highly offensive to the reasonable person standard” raised a potential chilling effect on free speech because liability depended too much on subjective concerns of the plaintiff. The Court rejected the suggestion that it False Light Continued on page 3

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Firm co-sponsors event on water technology in Israel

Kedrowski was originally scheduled to speak at the recent POWER: Opening Doors for Women Corporate Leadership Dinner, but was unable to attend. The firm arranged this special networking opportunity exclusively for the women of Arnstein & Lehr and their guests.

On July 22 the firm co-sponsored Water, the Israeli Experience in the Chicago office. The speaker for the event was Assaf Barnea, CEO of Kinrot Ventures, a water technology incubator. Mr. Kinrot Ventures’ Assaf Barnea talks to attendees Barnea discussed of the water technology in Israel seminar held the development of recently at Arnstein & Lehr LLP. new water technology and the role of Israeli water innovation and overcoming challenges.

LGBT domestic violence topic of discussion at firm hosted CLE seminar The Chicago office of Arnstein & Lehr hosted a continuing legal education seminar on May 29 on domestic violence issues facing the lesbian, gay, bisexual and transgender (LGBT) community. Entitled The Last Thing Hanging in the Closet: Domestic Violence in LGBT Relationships (Legal Issues and Remedies), the seminar was presented by the Chicago Lesbian and Gay Bar Association.

More than 60 professionals involved in water treatment and technology attended the seminar. The event was co-sponsored by the Israel Midwest Economic Mission, America-Israel Chamber of Commerce, Ben-Gurion University and the Consulate General of Israel to the Midwest.

Firm hosts women’s networking luncheon Chicago Partner Cynde Hirschstick Munzer and Arnstein & Lehr hosted a women’s corporate leadership networking luncheon on July 15 in the Chicago office. Speakers were Kathleen Kedrowski, managing director of Navigant Consulting, and Monica Weed, vice president, secretary and general counsel of Navigant Consulting. They told their stories of struggle and triumph as they climbed the corporate ladder to their current positions. Ms.

Florida Supreme Court throws out ‘false light’ Continued from page 2

could extend defamation protections to false light as other jurisdictions have done, but determined that this should be left to the legislature. The Court also noted in a parting shot that no case has been identified where a claim based solely on false light was upheld, which signaled to the Court that the tort was irrelevant. Finally, the Court held that the applicable standard in defamation cases is the Restatement standard that the defamatory statement prejudices the plaintiff in the eyes of a “substantial and respectable minority” of the community. Thus, in the future, plaintiffs who would normally claim false light must plead a claim for implied defamation and meet the applicable standard for the communication at issue.

Attorneys featured in this issue

William Anaya

Bruce Balonick

Dale Bergman

Howard Berrington

Mary Cannon-Veed

A r n s t e i n & L e h r U p d at e

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Firm co-hosts Corporate Leadership dinner

Chicago office. Prior to joining Arnstein & Lehr, Berrington was a partner in the Corporate Practice Group at Levenfeld Pearlstein, LLC.

Arnstein & Lehr LLP recently served as co-host for a Corporate Leadership dinner along with the International Lawyers Network (ILN) as part of the 2009 POWER: Opening Doors for Women event in Chicago. The dinner took place May 14. Arnstein & Lehr, a member of ILN, broadcast the dinner live over the internet to ILN’s female attorneys within its 91 fullservice member firms.

John Turner joins West Palm Beach office

The event, billed as a networking program for women, began with a networking reception with several hundred women Wynona Redmond, Dominick’s (left); Deidre Brekke, at Chicago’s Swis- Pactive Corporation (center); and, Cynde Hirschtick sôtel, followed Munzer, Arnstein & Lehr LLP(right). by simultaneous breakout dinners at different venues throughout the city focused on specific industries and themes.

John Turner recently joined the West Palm Beach office as a partner in the Business Organizations, Litigation and Intellectual Property practice groups. Turner also represents clients in corporate transactional matters including trademark registration and the negotiation of licensing agreements, franchise agreements, and lease and terminal operating agreements. Prior to joining Arnstein & Lehr, Turner was a partner with Buckingham, Doolittle & Burroughs, LLP.

Dale Bergman joins Fort Lauderdale office

Dale Bergman has joined the Fort Lauderdale office as a partner in the Corporate Securities and Business Organizations & Transactions Practice Groups. Prior to joining Arnstein & Lehr, Bergman was an equity member in the Miami law firm of Kluger, Peretz, Kaplan & Berlin, P.L.

Three associates join firm in Chicago, Miami offices

Three associates also joined Arnstein & Lehr this fall. They are Julie Meyer and Katelyn Rose Letizia who reside in our Chicago office and Steven Appelbaum who joins our Miami office. Meyer and Letizia served as summer associates with the firm and will work in the area of litigation. Appelbaum also served as a summer associate in our Miami office.

Providing a broad range of services in situations involving financially troubled businesses and individuals.

The Corporate Leadership dinner was co-hosted and moderated by Arnstein & Lehr Partner Cynde Hirschtick Munzer and Wynona Redmond, director of public affairs & government relations at Dominick’s, which was also a co-sponsor of the event.

Firm welcomes three partners and three associates

Barry Chatz moderates business seminar

Howard Berrington joins Chicago office

Howard Berrington recently joined the firm as a partner in the Business Organizations & Transactions, Bankruptcy & Creditors’ Rights and Banks & Financial Institutions practice groups in the

Bankruptcy Partner Barry A. Chatz moderated a seminar entitled “Workouts & Turnarounds: Non-Bankruptcy or Pre-Bankruptcy for the distressed business.” Attendees worked out strategies for business counsel, the role of the lender’s counsel and pre-bankruptcy planning. The seminar was held at Chicago’s UBS Tower. Arnstein & Lehr hosted the seminar and networking lunch.

Attorneys featured in this issue

Jenifer Caracciolo

www . a r n s t e i n . c o m

Barry Chatz

Vanessa Cohn

Andrea Cox

Toby Eveland

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David Golin speaks to auto dealers on manufacturer bankruptcies

Bankruptcy Partner David A. Golin spoke to members of the Illinois Automobile Dealers Association (IADA) on May 12 in Springfield, Illinois, during the IADA’s Survival & Legal Bankruptcy Seminar. Golin’s presentation discussed Chapter 11 bankruptcy issues and the effects and ramifications of the Chrysler bankruptcy and the then-potential General Motors bankruptcy on their dealerships.

Barry Chatz addresses economic crisis in Financier Worldwide magazine

Bankruptcy Partner Barry Chatz was recently invited to participate in a roundtable discussion with other U.S. financial experts with their responses forming the basis of an article in the September issue of Financier Worldwide magazine. Panelists were asked to provide their thoughts on topics such as the recent U.S. bankruptcy market, macroeconomic trends affecting businesses, the effectiveness of reorganization and restructuring. Financier Worldwide magazine is a leading publisher of news and analysis on the global corporate finance market place. Providing services for both privately and publicly held businesses in a diverse range of industries, as well as municipalities and notfor-profit organizations.

Arnstein & Lehr completes large stock sale despite economy

Partners Barry Chatz, Mark Miller and Erik Kantz completed a $23 million sale of stock involving installment payment and multi-tiered subordination arrangements involving institutional and private lenders.

Howard Swibel retained as expert witness on issue concerning Uniform Foreign Money Claims Act

Chicago Partner Howard Swibel was retained as an expert witness in a multi-million dollar divorce case pending in the Court of Com-

Adam Fayne

Scott Frank

mon Pleas in Hamilton County (Cincinnati), Ohio. He testified on June 9 before the presiding Magistrate concerning the issue of whether the Uniform Foreign Money Claims Act (UFMCA) applied to the luxury London-based manor house owned by the couple. The UFMCA allows any claimant to assert a claim in foreign money. It also allows any opposing party to contest such a claim, and to assert and prove that a different money should be the basis for the claim. The issue concerning the manor house was when the Euros should be converted to dollars, and the difference in valuation dates amounted to nearly half a million dollars. Swibel, who had helped draft the statute 20 years ago, testified that the UFMCA was not applicable and on August 5 the Magistrate so ruled.

Bruce Balonick to speak at Financial Service Centers of America 2009 Conference

Chicago Partner Bruce Balonick is presenting a workshop entitled “Legal and Tax issues in buying and selling off a financial service business” at the Financial Service Centers of America 2009 Conference in Colorado Springs on October 22-25.

Mark Miller has busy year representing International Archery Federation

Business Partner Mark Miller made several trips this spring and summer as chair of the International Archery Federation’s (FITA) Constitution and Rules Committee, of which he has been a committee member since 2005. As committee chair, he also serves as an ex officio member of FITA’s governing council. In addition, he currently serves as a member of FITA’s Youth Development Committee. He attended the 2009 Youth World Championships held in Ogden, Utah, and presented medals and flowers as a Council member along with members of the International Olympic Committee and other dignitaries. A past president of USA Archery, Miller attended FITA Constitution and Rules Committee meetings in Regensburg, Germany, and Ulsan, Korea. In November he will travel to FITA meetings in Rome and Germany.

Bergman quoted in Hedge Fund Law Report

Fort Lauderdale Partner Dale Bergman was quoted in a September 2 article appearing in the Hedge Fund Law Report entitled, “Hedge

David Golin

Judy Grubner

Richard Hellerman

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Funds are Purchasing or Launching Mortgage Servicers to Take Advantage of Increased Opportunities in Distressed Residential Mortgages.” In the article, Bergman was quoted discussing how banks are being compelled to increase lending as the economy begins to recover.

Howard Swibel interviewed on Uniform Partnership Act for upcoming book

Chicago Partner Howard Swibel was interviewed by a researcher at the University of Memphis School of Law in connection with an upcoming course book entitled “Cases and Exercises on Corporations and Business Entities: A Practical Approach,” to be published next year by Aspen Publishing. Swibel was asked to comment on the Uniform Partnership Act which he helped draft in 1997.

Dale Bergman provides thoughts on solutions for condo developers struggling to sell units

Fort Lauderdale Partner Dale Bergman was asked for his thoughts in the South Florida Business Journal on Miami-based Yale Mortgage qualifying condominium unit buyers for five-year balloon mortgages as a way to cut the balance of a construction loan to secure mortgage notes that can generate cash flow. His comments appear in an article entitled Slice-and-dice time for condo loans. Assisting clients in navigating the current economic climate through a multi-disciplinary approach that serves to shield them from financial distress.

Representing private, public, local and international clients in a variety of construction-related transactions and litigation matters.

Samuel Levine authors article on contractor protections through mechanics liens

Construction Partner Samuel Levine recently authored an article that appeared in both the June issue of Colorado Construction magazine and the July issue of Modern Contractor Solutions magazine. The article, entitled Punchlist Commentary: Protection for Contractors through Mechanics Liens addresses the recent trend of contractors asserting their rights through mechanics lien claims as a vehicle for payment. Levine examines lien claims, owner and lender notification, claim recording and bankruptcy in the article.

Justin Weisberg speaks on risks, obligations of construction shop drawings On September 16 Chicago Construction Partner Justin Weisberg presented a Webinar entitled “Understanding the Risks and Obligations Involved in the Preparation and Review of Shop Drawings.” The Webinar was hosted by WPL Publishing Co., Inc. and had 140 companies on the line with an estimated 600 participants.

A leader in the defense of consumer finance litigation both individually and as class action cases.

Alan Kipnis discusses South Florida foreclosure purchases on Comcast Newsmakers

Fort Lauderdale Commercial Solutions Group Partner Alan Kipnis was interviewed recently for Comcast’s Newsmakers South Florida news program to discuss his views as an authority on area foreclosure purchases. Newsmakers South Florida keeps viewers informed about important local issues and events directly impacting Miami-Dade and Broward County residents. It regularly features community leaders, opinion makers, and elected officials. Kipnis’ five-minute segment aired several times during the months of May and June.

John Ropiequet and Chris Naveja publish article on lending litigation

Chicago Partners Chris Naveja and John Ropiequet have written an article entitled “Fair Lending Litigation Following the Subprime Meltdown” that will be published in the September issue of Banking & Financial Services Policy Report. The article traces the history of government enforcement actions and class action cases that have alleged racial discrimination in mortgage lending and auto finance and surveys recent actions against mortgage lenders.

Attorneys featured in this issue

Cynde Hirschtick Munzer

www . a r n s t e i n . c o m

Arthur Janura

Martin Kalish

Erik Kantz

Jonathan Knisley

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Assisting clients to deal with their environmental concerns in a cost-effective manner in the litigation, administration, and transactional contexts.

Samuel Levine, Bill Anaya speak at ISBA CLE Fest 2009

On June 18 Partners Samuel Levine and William Anaya spoke at the Illinois State Bar Association CLE Fest 2009. Levine and Anaya presented a 2009 real estate update focusing on "Practical Environmental Concerns for Illinois Lawyers." The seminar included an analysis of the environmental risks associated with real estate property and analyzed several of these risks, including the Real Property Disclosure Form, mold, radon, and reading/interpreting an environmental report.

Assisting clients in formulating and implementing complex estate planning matters in a tax-efficient manner.

Tarshis and Vitek write on the responsibilities and obligations of trustees

Estate Planning Partners Jay P. Tarshis’ and Joseph Vitek’s article “Current Trends in Fiduciary Litigation: The Evolving Responsibility of the Trustee to Diversify its Portfolio” recently appeared in the summer issue of The Journal, a publication of Stout Risius Ross (SRR), a financial advisory firm. The article discusses the changing responsibilities of trustees and their obligations for the assets they are entrusted to manage. It specifically focuses on the trustee’s duty to diversity investments and whether a “retention clause” in the trust instrument provides the trustee with protection against claims by beneficiaries. SRR’s clients include Fortune 50 corporations to closely-held private companies in numerous industries around the globe. It specializes in investment banking, valuation & financial opinions, and dispute advisory & forensic services.

Alan Kipnis

Kathleen Lach

Serving as attorneys for a number of municipalities and in the representation of both public and private clients in a multitude of governmental matters.

Morris, Caracciolo and Logothetis secure appellate victory for municipality

Partner Hal Morris, assisted by Associates Jenifer Caracciolo and Georgia Logothetis secured a significant victory in the Illinois Appellate Court, Second District, for one of the firm's municipal clients. In that case, a resident of the municipality sought leave to intervene in a concluded court proceeding where the court had confirmed the public vote in favor of forming the municipality. The reason for the request was to file a motion challenging the very existence of the municipality and to seek its complete dissolution. The Arnstein & Lehr team argued that the trial court was correct to deny the request for intervention. The Appellate Court agreed with the position and reaffirmed the analysis that the trial court must first determine if intervention is appropriate before it can assess the merits of the motion which the intervening party wants to bring. Here, the Appellate Court agreed that the intervention was untimely as the intervenor waited months before bringing his request and in the interim the municipality had undertaken many actions which could not easily be undone. Thus, the Appellate Court ruled in Arnstein & Lehr's client's favor in all respects, including agreeing with the position that the intervenor failed to meet all of the procedural requirements in both the trial and appellate courts.

Municipal Law Group secures notable victory

Chicago Partner Hal Morris, Chicago Associate Jenifer Caracciolo, and Hoffman Estates Partner Art Janura, received a significant success for one of firm's municipal clients where the client had denied Public Safety Employee Benefits to a firefighter. The firefighter had claimed to be entitled to Public Safety Employee Benefits Act (PSEBA) benefits because he was injured on the job. Under PSEBA, a public safety worker and his spouse are entitled to lifetime benefits if catastrophically injured while responding to what is believed to be an emergency. Although the firefighter was catastrophically injured,

Robert Lasky

Laura Lau Marinelli

Louis Lehr

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that injury occurred while reloading fresh hoses on a returning out of service fire vehicle. The team successfully defended the Village's denial of benefits on administrative review and also defeated the request for attorney’s fees. This result is significant in terms of the monetary savings to our client and the impact it has on Illinois state wide requests for such benefits. The case extended existing case law and made it clear that the injured worker's belief must be objectively reasonable.

Art Janura speaks at bar association

Partner Art Janura spoke at the Northwest Suburban Bar Association on May 21 in Arlington Heights. The seminar was entitled “The Tag-Along Torts – Defamation, Intentional Infliction of Emotional Distress, and Invasion of Privacy.” Janura spoke on the topics of litigation strategies, counseling employers, proving damages and preemption.

Janura reappointed to chair NWSBA's Local Government Committee

Partner Art Janura was reappointed committee chair of the Local Government Committee of the Northwest Suburban Bar Association for the 2009-2010.

Janura appears on "I Didn't Know That" Legal Hour

Partner Art Janura appeared on the September 13 broadcast of "I Didn't Know That" Legal Hour on Chicago’s WIND AM 560. Janura was interviewed by radio personality Dave Schlueter. The one hour program reviews topics of note concerning the legal system. Representing hospitals, managed care entities, multispecialty provider groups, single specialty groups and individual physicians, as well as clinical laboratories and physical therapy providers.

David Waxman and Sharilee Smentek obtain important pharmaceutical victory

Healthcare Partners David Waxman and Sharilee Smentek obtained an important victory for a nationally prominent manu-

facturer of generic pharmaceuticals. Judge Frederick Kapala of the Northern District of Illinois granted the manufacturer’s Motion for Summary Judgment and dismissed plaintiff’s claims against it. This result is one of the few recent victories for pharmaceutical manufacturers across the country in the wake of the U.S. Supreme Court’s decision in Wyeth v. Levine which significantly weakened the defense of federal pre-emption of state law claims regarding pharmaceutical safety warnings, making it considerably more difficult for manufacturers to prevail on such claims. Here, the plaintiff alleged that the firm’s client failed to appropriately warn of dangers associated with its product, a generic form of the widely prescribed antibiotic, Bactrim. The plaintiff incurred Stevens-Johnson syndrome, a serious disorder which attacks the skin and mucus membranes and which resulted in permanent injuries. Stevens-Johnson syndrome is included in the product warnings issued by the manufacturer and was known to the prescribing physician. It is on this basis that the manufacturer sought dismissal of the claims, as the defense contended that the prescription for the generic Bactrim had been issued by a learned intermediary who had all necessary information provided to her regarding the risks and benefits of the medication. Judge Kapala agreed, and in his opinion he concluded that the plaintiff’s claims failed to survive the learned intermediary doctrine and he entered judgment on behalf of the firm’s client.

Marty Kalish, Tracey Salinski speak at AHIMA Legal Forum on electronic health records

Miami Partner Marty Kalish and Chicago Associate Tracey Salinski recently spoke at the American Health Information Management Association (AHIMA) conference held at the Chicago Marriott Downtown on August 17-18. Their presentation was titled “The EHR Exception – Practical Approaches to Gain Acceptance and Deflect Inertia.” Their Power Point presentation is available for those interested. AHIMA is the premier association of health information management professionals with more than 53,000 members dedicated to the effective management of personal health information required to deliver quality healthcare to the public.

Attorneys featured in this issue

Neville Leslie

www . a r n s t e i n . c o m

Katelyn Letizia

Samuel Levine

Steven Malitz

Robert A. McKenzie

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Representing insureds, risk pools, insurance and reinsurance companies, exquidaters, insurance agencies and brokers, third-party administrators, and other insurance-related entities.

Mary Cannon-Veed wins case against insolvent insurance company

In 1998 a clothing store in Florida sued one of its competitors, claiming that the a rogue employee of the competitor had orchestrated a scheme involving fraudulent which misled the public into confusing the two stores; the net effect was that the first store went out of business. The competitor had insurance for that suit, but the insurance company refused to defend it and left its insured high and dry. The policyholder had to hire its own lawyers and attempt to defend the case. Eventually, the two clothing stores settled the lawsuit with an agreed judgment for $1.5 million, which could only be collected from the insurance policy. In the meantime, the insurance company, based in Illinois, went broke. Arnstein & Lehr’s client specializes in buying and prosecuting claims against insolvent and otherwise deadbeat insurance companies. They went into a partnership with the plaintiff in the Florida lawsuit, and on their joint behalf the firm prosecuted the claim against the insurer. The liquidator tried to argue that the policy (which had limits of $1 million) didn’t cover the claim. They also tried to argue that the settlement didn’t bind the insurance company and was unreasonable and unfair. Insurance Partner Mary Cannon-Veed obtained a judgment against the insolvent insurance company for more than $1.5 million for the client. Eleven years later the judge ruled in the firm’s favor on both counts and approved our clients’ claim in its entirety.

Cannon-Veed appointed executive editor of ABA TIPS standing committee

Insurance Partner Mary Cannon-Veed was recently appointed executive editor of the American Bar Association’s Brief Editorial Board Special Standing Committee within the Tort Trial & Insurance Practice Section (TIPS) for the 2009-2010 fiscal year. CannonVeed is both an ABA and TIPS practice section member.

Robert E. McKenzie

Ronald Menaker

Counseling clients on matters related to the protection of copyrights, trademarks, and trade secrets.

Joel Rothman joins West Palm Beach office

Joel Rothman recently joined the West Palm Beach office as a partner in the intellectual Property and Commercial Litigation and Transactions practice groups. Rothman’s litigation practice includes a significant focus on electronic discovery issues, such as e-discovery management and motion practice relating to e-discovery.

Rothman earns Florida Bar Board certification in Intellectual Property

West Palm Beach Partner Joel Rothman was recently certified by The Florida Bar as a legal specialist in Intellectual Property. Board Certified attorneys are the only Florida lawyers allowed to identify or advertise themselves as specialists or experts. Florida’s board certification program is one of the leaders in the nation in maintaining the highest standards for excellence and professionalism while adding practice areas.

Rothman launches blog focused on iPhone applications law

Partner Joel Rothman recently launched Appslawblog.com which focuses on iPhone applications and the law. Rothman launched the blog with attorney Kevin Houchin. They gained notoriety by filing the now infamous iFart v. Pull My Finger trademark infringement lawsuit in early 2009 in the District of Colorado.

Judy Grubner published in IP Strategist

The May issue of Law Journal Newsletters The Intellectual Property Strategist, featured an article written by Partner Judy Grubner. The article, entitled “Lanham Act addresses a corporation's claim that a product infringing patent is 'innovative' is not a false designation of origin.” Grubner's article reviews the overlap of copyright and trademark/

Mark Miller

Hal Morris

Christopher Naveja

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unfair competition laws addressed in Dastar Corp. v. Twentieth Century Fox Film Corp., as being similarly applicable to Baden Sports, Inc. v. Molten USA, Inc. where an accused patent infringer makes false claims that it originated a third party's patented technology in the promotion of its manufactured basketballs.

Representing both private and public sector employers including union and nonunion companies - from large, publicly held corporations to small, closely held and notfor-profit businesses.

Rothman published in Nutritional Outlook magazine on recall protection

West Palm Beach Partner Joel Rothman wrote an article for Nutritional Outlook magazine entitled “Playing It Safe: Marketers can protect themselves against product adulteration and recalls.” The article examines what a company can do to protect themselves from adulterated ingredients and what role the FDA plays.

Employment Law Group hosts Executive Terminations seminar

Rothman appointed to Florida Bar IP Committee West Palm Beach Partner Joel Rothman was recently appointed chair of the Intellectual Property Committee of the Business Law Section of The Florida Bar. The position is for a two-year term.

On September 30 the firm hosted “Terminating High-Level Executives in Tough Economic Times.” Chicago Partner Paul Starkman, along with Bob Wilson of High Potential, Inc., Tom Carroll of RR Donnelley and Laurel Bellows of The Bellows Law Group, P.C. addressed issues resulting from terminating senior executives, including litigation, bad publicity, business disruptions and poor morale among remaining managers. The seminar also offered real-world solutions to solve the problems associated with these terminations.

Rothman discusses buying patents with online publications

Paul Starkman interviewed on legal issues of furloughs

On September 9 Partner Joel Rothman discussed the purchase of Linux patents by Operation Invention Network (OIN), which consists of a group of companies including IBM, Sony, Red Hat and Google. The companies are currently getting ready for a legal fight over Linux. Rothman discussed the advantages of purchasing the patents and open source technology with LinuxInsider and E Commerce Times.

Rothman publishes article in IP Strategist

West Palm Beach Partner Joel Rothman has an article appearing in the October issue of IP Strategist “Negative Light, False Light Invasion of Privacy Falls out of Favor.” Rothman reviews cases that have moved away from invasion of privacy tort, a growing trend in Florida. In particular he reviews the case, Rapp v. Jews for Jesus, which arose when Jews for Jesus published a newsletter account by a man who had visited his ailing father and stepmother.

Partner Paul Starkman was interviewed by Mary Swanton, Senior Editor for Inside Counsel about the legal issues and business benefits involved in companies using furloughs instead of layoffs in tough economic times. The article appeared in the August issue of Inside Counsel.

Jason Tremblay authors article on avoiding employment litigation for HR Advisor

Chicago Partner Jason Tremblay wrote an article for the May-June issue of HR Advisor entitled “Avoiding Employment-Related Litigation in 2009 and Beyond: 14 Preventative Measures Every Employer Should Complete.”

Mark Spognardi interviewed on the use of social media for recruiting

Chicago Partner Mark Spognardi was recently interviewed by HR Wire for a September 2 article entitled, "The Pros and Cons of Recruiting Via Social Media." In the article Spognardi warned readers not to replace face-to-face interviews with social media and to beware of the possible legal pitfalls presented by such a new phenomenon.

Attorneys featured in this issue

John Ropiequet

www . a r n s t e i n . c o m

Joel Rothman

Tracey Salinski

Jeffrey Shapiro

Sharilee Smentek

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Paul Starkman interviewed on liability problems of ex-convicts in the workplace

Chicago Partner Paul Starkman discussed EEOC and liability issues that may arise when companies hire ex-convicts with Business Insurance for their September 14 issue. California is currently releasing more than 40,000 inmates from prisons, prompting many companies to review their policies on criminal background checks. Handling all types of commercial and tort litigation in federal and state courts at the trial and appellate levels with expertise in arbitration, mediation, and other forms of ADR and administrative law proceedings.

Arnstein & Lehr lawyers are golden for their currency exchange clients

Chicago Partners Bruce Balonick and Steven Malitz, together with Associate Laura Lau Marinelli, achieved a significant victory in the first of a number of such actions against rogue businesses acting as currency exchanges without licensure by the Illinois Department of Financial Institutions. Arnstein & Lehr represents many Illinois-licensed community currency exchanges. On behalf of one such community currency exchange, the attorneys sought to bar a competitor from operating as a currency exchange because it was doing so without a license. They also sought damages for unfair competition. The unlicensed business was cashing checks for a fee in violation of the Currency Exchange Act. The business claimed that it was exempt under the Act because it was engaged in the business of selling tangible personal property at retail--the so called "merchant’s exemption." Notwithstanding the claimed exemption, Arnstein & Lehr attorneys argued that the business had admitted under oath that it was principally engaged in the business of wiring funds for a fee and, therefore, could not meet the statutory definition of a merchant. The judge agreed and, restrained the business from cashing checks for a fee or otherwise rendering any services requiring licensure under the Currency Exchange Act.

During the discovery phase of the damages aspect of the case, Messrs. Balonick and Malitz, along with Associate Jason Hirsh, learned that the defendant business and its principal had profited considerably from their illicit practice of cashing checks for a fee without a license. Taking the extra step of reviewing often-overlooked "metadata" (electronically stored information underlying all computer-generated documents), the attorneys learned that the defendants had intentionally attempted to delete computerized information which would prove even larger ill-gotten gains. Confronting defendants with this damning evidence in conjunction with disclosing an expert who could link defendants' illegal profits to our currency exchange client's decreasing revenues, Malitz and Hirsh were able to extract a very large monetary settlement and a permanent injunction as trial neared.

Attorneys obtain unique victory for entrepreneurial client

Partners Steven Malitz, Richard Hellerman and Ronald Menaker obtained a unique and valuable victory for one of the firm's entrepreneurial clients. Our client is in the business of purchasing excess inventory from various businesses at large discounts, usually for cash. In order to raise the capital for these transactions, the client solicits investors who receive interest and a reasonable return on the invested sums. Although the client may have substantial funds on deposit with one or more banks, banks are slow or otherwise unable to immediately convert such deposits to cash. Such cash is necessary to expeditiously close on these purchases before the opportunity vanishes. Our client engaged the services of a licensed private security firm and attorney who represented that they had strong relationships with various banks which would allow the speedy conversion of bank funds to cash to facilitate the inventory purchases the client planned to make, that their bank accounts were “escrow” accounts such that our client's funds would be protected, that as owner of a private security firm, one of the defendants had the ability to safely and quickly transport the cash to closing and, that after they completed the cash conversion, the attorney defendant could handle the purchase transaction. After wiring substantial funds into defendants' escrow account, the

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defendants contended that a large portion of our client's funds had been seized by the government and that the remaining funds had been frozen by the bank. The defendants failed to furnish any documentation supporting these claims. Having no luck recovering the funds through negotiation, the client turned to Malitz and Hellerman who instantly obtained a temporary restraining order freezing the bank accounts. What was extraordinary about this result was that in order to freeze assets of a defendant at the beginning of litigation and before entry of judgment, the plaintiff generally must seek a "pre-judgment attachment." Such an attachment requires sworn, detailed proof of fraud and a bond in twice the amount of the assets to be attached. Therefore, in order to attach assets before judgment, the claimant would be required to post cash in twice the amount to be seized. In order to avoid the inflexible bond requirement which, given the sums at issue, could prevent the client from obtaining effective and fast legal relief, Malitz and Hellerman instead sought a temporary restraining order. In the context of a temporary restraining order, the judge has discretion on whether or not to require a bond. In presenting the motion for a temporary restraining order (TRO), the judge agreed that no bond was required and entered the TRO freezing the accounts. Yet another unique aspect of the case was that the attorneys obtained the injunction without first notifying the defendants, for fear that they would deplete the accounts if notified of the motion for injunction. The experienced chancellor presiding over the case entered the TRO without notice despite having only entered such an ex parte TRO once before in his long legal career. After Malitz and Hellerman obtained the ex parte TRO, they expeditiously notified all defendants at which time the defendants engaged an attorney who appeared in court for the second hearing on entry of the temporary injunction. At the second hearing, Malitz and Hellerman persuaded the judge to preserve the injunction freezing the accounts and also convinced the judge to allow them to take expedited discovery on the bank to determine if the funds were still on deposit. The case is currently pending as Malitz and Hellerman attempt to trace the assets.

Arnstein & Lehr secures victory in product liability suit

In the first decision to arise out of dozens of similar lawsuits nation-

wide, Arnstein & Lehr LLP helped secure a victory in favor of a medical device manufacturer. This product liability suit involved a continuous infusion pain pump, a device employed for the post operative management of pain following surgery. The federal district court in Key West, Florida entered summary judgment in favor of the device maker, finding that the Plaintiff could not present sufficient evidence to prove that the use of the infusion pump was the general or specific cause of his injury. Attorneys Jeffrey Shapiro, Neville M. Leslie, and Andrea Cox from our Miami office acted as co-counsel to secure this important win on behalf of the medical device manufacturer.

Lou Lehr authors supplement to three volume work on premises liability

Chicago Partner Emeritus Lou Lehr authored a new chapter, Injuries at Amusement Parks, as a part of the 2009 Supplement to his three volume work, Premises Liability Third, published by West. Chicago Associate Jonathan Knisley contributed to the preparation of the chapter. The book takes the practitioner step by step through the preparation and trial of a premises liability case and includes a disc of all of the forms found in the book.

Robin Trupp serves as panelist at Legal Marketing Association conference

Robin Trupp, a partner in the firm’s Tampa office, served as a panelist for the 2009 Southeast Legal Marketing Association's Mini Conference. The one day event, held in Orlando at the Orange County Bar Association, brought together dozens of legal marketers from Florida, Georgia, Alabama, and South Carolina. His panel addressed the topic Taking the Association for Corporation Counsel Value Challenge A Step Further: Creating the Ultimate Client Experience. As a panelist, Trupp was asked to take part in discussing what client value means to both him as an attorney and Arnstein & Lehr, what the firm does to gather client feedback, what the firm’s client intake process is, how the firm shows its appreciation to clients, how we communicate with clients, and what types of alternative fee arrangements the firm provides clients.

Steven Malitz publishes article on documenting statements

Partner Steven Malitz recently published an article entitled, "Best Practices for Taking and Documenting a Statement." The article

Attorneys featured in this issue

Jason Tremblay

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Robin Trupp

John Turner

Joseph Vitek

David Waxman

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covers how to document a statement or admission by a suspect, the various types of statements, how to maintain control of the interrogation and suspect and how to protect the statement. The article appears in CFInsider, (2009, Issue 2), The Journal for the Certified Forensic Interviewer. For the journal, Malitz authors the standing article, "Ask the CFI Attorney," in which he tackles questions posed by investigative and loss prevention professionals for major retailers and local, state and federal governments. Malitz's article also appears on Arnstein & Lehr’s Labor and Employment Group blog, General-Counselor.com.

Malitz published in CRM Magazine

Partner Steven Malitz published an article entitled, "Crafting a Strong Sales Contract." The article discusses the importance of sellers protecting themselves with a strong, well-written sales contract. The article focuses on four key provisions which should be included in all sales contracts. The article appears in the May issue of CRM Magazine, the trade publication for customer relationship management, a company-wide business strategy designed to reduce costs and increase profitability by solidifying customer loyalty.

Toby Eveland appointed to ISBA committees and leadership council

Jason Weiss elected to a second term of Florida Bar section

Fort Lauderdale Associate Jason Weiss was recently elected to a second term as the treasurer for the Entertainment, Arts & Sports Law Section of The Florida Bar.

Chicago associate publishes article on red light camera laws

Chicago Associate Katelyn Letizia recently published an article in Chicago-Kent College of Law's Seventh Circuit Review entitled “The Seventh Circuit Gives the Green Light to Red Light Cameras: An Analysis of the Court's Application of the Rational-Basis Test to Red Light Camera Laws.” The article is a scholarly review and analysis of the Seventh Circuit Court of Appeals decision regarding the constitutionality of red light cameras as a traffic enforcement and revenue generating mechanism. The article is one of the first to closely examine this burgeoning technology and the constitutional implications arising out of its use. It can be found at 4 Seventh Circuit Review 338 (2009) and at www.kentlaw.edu/7cr. The Seventh Circuit Review is a law review published by Chicago-Kent College of Law under the direction of Chicago Partner Hal Morris who is also a professor at the school.

On June 27 Chicago Associate Toby Eveland was appointed to serve as vice chair of the Illinois State Bar Association's (ISBA) Committee on Sexual Orientation and Gender Identity. He was also appointed by ISBA President John O'Brien to serve on the Illinois State Bar Association's Diversity Leadership Council.

Franklin Zemel re-appointed to term on Florida Bar ethics committee

Partner Franklin Zemel was recently reappointed to another twoyear term on The Florida Bar Professional Ethics Committee. The Professional Ethics Committee is charged with the duty of answering ethics inquiries from members of The Florida Bar concerning the inquirer’s own proposed conduct. The committee reviews informal advisory opinions issues by Florida Bar ethics department attorneys. Additionally, the committee publishes formal advisory opinions to guide bar members in interpreting and applying the ethics rules.

Assisting corporations, partnerships, municipalities, developers, lenders, borrowers, condo and common interest communities, landlords, tenants, and those involved in all aspects of real estate development, ownership, and management.

Ray Werner serves as ABA meeting panelist

Managing Partner Ray Werner spoke at the American Bar Association meeting in Chicago on August 1 as a panelist in a session entitled “Bucking the Trend: Tales of Successful Law Firms in Turbulent Times.” Werner discussed how the firm has continued to be successful during the current economic downturn. The session was moderated by law firm consultant John Remsen.

Scott Frank authors article on condo construction rights

West Palm Beach Partner Scott Frank recently authored an article

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for Affluent Magazine entitled “Know Your Rights When Your Dream Condo Doesn't Get Built." The article examines what owners can do when condo construction is delayed and a down payment on the property is tied up in an escrow account.

Vanessa Cohn appointed to assisted living facility board

Tampa Partner Vanessa Negron Cohn was recently appointed to the board of managers for Weinberg Village, a senior living community and 501(c)(3) organization that is part of the Tampa Bay Jewish Federation. The board of managers is responsible for the day-to-day operations and fundraising efforts to maintain the quality of living of Weinberg Village’s residents. Assisting businesses in minimizing their tax risk and maximizing their business and financial goals.

Adam Fayne and Bob McKenzie secure $6 million victory for client against IRS

Chicago Partners Adam Fayne and Robert E. McKenzie successfully litigated this multi-million dollar proposed tax deficiency in the case Beard v. Commissioner, T.C. Memo 2009-184 (2009). The IRS asserted that the six year extended statute of limitations period applied to the taxpayer's alleged overstatement of basis in his partnership interest. The liability at issue was in excess of $6 Million. Fayne filed a Motion for Summary Judgment arguing that the extended statute of limitations period did not apply based on an earlier Supreme Court case. The IRS alleged that an inflated basis of stock was the same as an omission of gross income. The Tax Court agreed with Fayne that an overstatement of basis in partnership stock is not the same as an omission of gross income and issued summary judgment in favor of his client and against the IRS.

Lach and Fayne secure win for client in Tax Court Chicago Partners Kathleen Lach and Adam Fayne won a victory for their client before the US Tax Court. The client brought a discrimination suit against her former employer, and hired a contingent fee attorney to represent her. She was offered a settlement, which she declined. Her contingent fee lawyer then sued

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her for recovery of 1/3 of the proposed settlement for his fee, and won. The client deducted the payment she made to this lawyer as a business expense. The IRS denied her deduction, taking the position that her payment to the contingent fee lawyer was the result of her breach of contract with the lawyer, and not in connection with the discrimination suit. Lach and Fayne took the case to Tax Court, and IRS counsel conceded the client's position, agreeing to allow the deduction as shown on our client's tax return.

McKenzie and Lach secure win for client against IRS

Partners Kathleen Lach and Robert E. McKenzie recently won a Summary Judgment motion in Federal District Court for their client. The IRS brought a suit against the firm’s client to reduce his federal tax liabilities to judgment. The firm’s motion argued that the statute of limitations to collect the liability had expired due to a technicality contained within the code section on extension of the statute while settlement offers (Offers in Compromise) are pending. Arnstein & Lehr’s position was that for offers filed during a specific period of time, the statute could not be extended beyond 2002 under this section of the code. The IRS, in order to avoid a written opinion on this issue, did not respond to the motion, and agreed to dismiss the case with prejudice and abate the assessments against the firm’s client.

Edward Snyder hosts CBA TV program

Chicago Partner Edward Snyder recently hosted You and The Law, a program on "Starting a Business.” The program covered business and tax laws relevant to the formation of a new small business. The show appeared on Comcast channel 19 in the western suburbs.

Bob McKenzie recognized by CPA Magazine

Partner Robert E. McKenzie was recognized in an article in the April/May edition of CPA Magazine entitled the "Top 40 Tax Advisors to Know During a Recession." State society and national association of CPAs and accountants nominated the candidates. Each candidate was then asked to submit words of advice about tax planning during a recession.

Bob McKenzie continues to serve as media source on IRS efforts to track account holders

Chicago Partner Robert E. McKenzie's IRS expertise continues to

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be source for media outlets around the country seeking comment on its efforts to track offshore bank account holders who have not disclosed their assets. On August 23, The Baltimore Sun published an article quoting Bob entitled, "Pay back taxes before the IRS finds you." In the article, McKenzie discusses the importance of those who have unpaid taxes to come forward before they are discovered by the IRS. The article was subsequently published in the Omaha World-Herald, Boston Globe, Pittsburgh Tribune Review, Dallas Morning News and Seattle Times. He was also a source for the September 7 issue of Tax Notes and a September 22 article in the Chicago Tribune’s Chicago Law column “IRS targets taxpayers with secret Swiss bank accounts.”

Attorneys complete jet aircraft transactions

Partners Edward Snyder, Theresia Wolf-McKenzie, Robert Lasky and Associate Robert A. McKenzie, all with the Chicago office, recently represented clients in a series of tax free, like kind exchanges of jet aircraft. The aggregate sale price for the three aircraft involved in the transactions exceeded $11 million. Use of the like kind exchange structure allowed the clients to avoid current taxation on substantial profits and accelerated depreciation recapture that they would otherwise have to recognize on the aircraft sales.

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In this issue Firm hosts third annual Woman of Vision Luncheon

Arnstein & Lehr presented Anne R. Pramaggiore, the newly named president and chief operating officer of ComEd, with its 2009 Woman of Vision Award at a luncheon for women business leaders on July 23. (Cover Story)

Florida Supreme Court throws out ‘false light’ invasion of privacy cause of action

West Palm Beach Partner Joel Rothman provides his insight into a recent ruling by the Florida Supreme Court in Rapp v. Jews for Jesus in which the Court rules that the cause of action for false light invasion of privacy is not a valid cause of action in Florida. (Cover Story)

Firm co-sponsors event on water technology in Israel

On July 22 Arnstein & Lehr co-sponsored Water, the Israeli Experience in the Chicago office. The speaker for the event was Assaf Barnea, CEO of Kinrot Ventures, a water technology incubator. Mr. Barnea discussed the development of new water technology and the role of Israeli water innovation and overcoming challenges. (Page 3) www . a r n s t e i n . c o m

Arnstein & Lehr co-hosts Corporate Leadership dinner

Arnstein & Lehr recently served as co-host for the 2009 Corporate Leadership dinner along with the International Lawyers Network (ILN) as part of the 2009 POWER: Opening Doors for Women event in Chicago. (Page 4)

Other top news • In the News: A continuing legal education seminar on domestic violence issues facing the lesbian, gay, bisexual and transgender community was hosted by Arnstein & Lehr’s Chicago office. (Page 3) • Notable Cases & Victories: Arnstein & Lehr’s Municipal Law Group secures two significant victories for our municipal clients. (Page 7) • New Additions: Chicago Partner Howard M. Berrington, Fort Lauderdale Partner Dale S. Bergman, and West Palm Beach Partner Joel B. Rothman, join the firm along with Associates Julie Meyer and Katelyn Rose Letizia in our Chicago office and Steven Appelbaum in our Miami office (Page 4) • Books, Journals & Articles: Partner Emeritus Lou Lehr authors supplement to three volume work on premises liability. (Page 12)