2016 FLORIDA LAW ALLIANCE TRUCKING AND TRANSPORTATION CLAIMS CONFERENCE TO BE HELD IN JACKSONVILLE

Marks Gray, P.A. Shareholder and Transportation Attorney L. Johnson Sarber, III.to host conference on behalf of the Florida Law Alliance

JACKSONVILLE, FL – Join members of the Florida Law Alliance on Thursday, November 10, 2016, at the Hyatt Regency Waterfront in Jacksonville, Florida, as they present the 2016 Trucking and Transportation Claims Conference.

Topics to be discussed include:

• Critical Aspects of Accident Investigation, First Response Teams, and Evidence Preservation
• Correctly Calculating Past and Future Medical Costs
• Federal Motor Carrier Safety Administration Regulations, including Distracted Drivers and Fatigue
• Ethical Considerations for Jury Pools and Jury Selection
• Settlement Strategies and ADR Selection

Online registration will begin in September 2016. In the interim, please click here to download the save-the-date flyer.

About Florida Law Alliance

FLA is a group of independent law firms practicing throughout Florida that has combined their knowledge, efforts, and resources. The goal is to increase efficiency, lower costs, expand the scope and improve the quality of legal services each firm provides to its own clients. The member firms of the Florida Law Alliance are better able to serve the interests of their clients because of the statewide geographical reach, cumulative expertise in both general and specialized practice areas, and local community knowledge and legal credibility before a specific court or another decision-making body. The Florida Law Alliance is not a partnership. Each member law firm is a separate entity that performs its own work independently for its clients and is solely responsible for the quality of its work. No member law firm accepts responsibility for another firm’s work.

About L. Johnson “Johnny” Sarber, III.

Johnny Sarber’s practice focuses on civil trial defense, primarily in areas of transportation law including tractor-trailer, heavy truck, passenger bus, school bus and other common carrier and commercial motor vehicle accidents, premises liability, and law enforcement defense. Mr. Sarber has been with Marks Gray since 1997 and now serves on the firm’s management committee. He is a member of the Florida Defense Lawyers Association (President 2011-2012), Federation of Defense & Corporate Counsel (current Board Director), Defense Research Institute, Trucking Industry Defense Association, and Transportation Lawyers Association, and is a founding member of the Florida Law Alliance. 

July 2016 Immigration Bulletin is Out!

DACA(+), DAPA, and Summer Fun - July 2016 Immigration Newsletter

by Giselle Carson

Marks Gray Immigration Attorney

Shareholder 

Original Newsletter and Archived Newsletter can be read here

SCOTUS 4-4 Decision on DACA and DAPA leaves many on hold 

In the United States v. Texas, the case challenging the expanded Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the U.S. Supreme Court (SCOTUS) affirmed the lower decision 4-4.

This means that the ruling by the Fifth Circuit’s decision stands and there will be no further movement in this proposal possibly until 2018.  This program expansion would have shielded up to 4 million immigrants from potential deportation and make them eligible for work permits.

To see the full story and learn how it may affect you, click here. 

To help you better understand the decision in its entirety we’ve published a list of FAQs. You can read the full list and download here.  

L-1A Manager Petition Approved in 12 Days

We are very proud to be able to assist U.S. employers and immigrants from all over the world achieve their goals.   Here, I share another success story involving an L-1A Operations Manager-Engineering and his family coming to the U.S. as an intra-company transfer. 

For the full story and learn more about how the Marks Gray Immigration team may assist you, click here. 

Employers Risk High Penalties for Hiring Unauthorized Workers 

The U.S. Department of Justice is planning to substantially increase the civil monetary penalties for employers who knowingly employ an unauthorized worker and for other immigration-related violations. The rule will take effect on August 1, 2016, and will apply to violations occurring after November 2, 2016.

Under the new rule, the minimum penalty for a first offense will increase from $375 to $539 per employee. The maximum penalty will increase from $3200 to $4313 per employee. The largest increase raises the maximum penalty for multiple violations from $16,000 to $21,563 per worker. Simple I-9 paperwork violations can now be assessed a maximum penalty of $2156 per individual, which is up from $1100. For unfair immigration-related employment practices, the maximum penalty will increase to $3563 per person, up from $3200.

To read about the new rule and stay up to date on potential changes, click here. 

FAQ: National Visa Center (NVC) Processing 

Many of our clients have to use the NVC to process their green cards.   Here, I answer questions to help you understand this process.  The NVC is a Department of State (DOS) facility that handles immigrant visa processing.  They act as a liaison between USCIS, the green card applicant(s) and the consular post abroad. After USCIS approves your immigrant petition (I-130 or I-140), USCIS will submit your approval to NVC. It is taking NVC 30 to 45 days after they receive the USCIS approval to provide instruction on the next steps.  You must wait to hear from NVC before proceeding. The next steps typically include payment of fees, submission of DS-260, collection, and submission of documents, review and communications from NVC.

Our blog post includes additional information and basic tips regarding this process.

To read and download the full list, click here.  

Is your degree on the STEM designated program list?

For many of our readers, especially foreign students on F-1 status, knowing and understanding if their degree is a STEM designated degree program is critical to plan for their immigration future. 

This designation can determine whether or not an F-1 student can benefit from the new 24-month STEM optional practical training (OPT) extension rule.  If so, the student can remain in the U.S. training and be gaining work experience for a much longer time and have a greater chance at applying for a potential H-1B petition, sometimes two to three times, under the lottery.

To read full blog post and review the list of the latest approved STEM designated program list, click here.

Connect with Giselle on LinkedIn for More Immigration Updates!

How to Prevent an IP Nightmare

Shareholder and Intellectual Property Attorney Crystal T. Broughan shares easy tips for your business to avoid IP confusion 

In the arena of buying and selling businesses, the tangible elements involved are often the first items that come to mind. Most brokers, agents, and business owners always remember the basics such as financial statements, deeds, and contracts. However, there are key elements of businesses and business structures that are often never taken into consideration during the selling process, specifically Intellectual Property.

Intellectual Property is often overlooked by the average buyer or seller because they fail to recognize the value of the intellectual property assets to the business.  Often sellers fail to properly identify intellectual property assets, buyers fail to perform a proper due diligence search and both parties fail to make sure proper assignments are filed with the appropriate government entity immediately after the sale of the business. For this reason, it can present the biggest nightmare after a sale due to the lack of accurate information and proper follow-up. Let me explain this process with a nightmare example from a previous case.

“A few years ago, I was contacted by a client and asked to prepare and file an assignment for some patents and trademarks.  The patents and trademarks had been included in the sale of the company a few years previous but no one had ever drafted the assignments and filed them with the United States Patent and Trademark Office (USPTO). The process took me much longer than normal because the official who had signed on behalf of the seller had suffered a stroke and was no longer competent to sign any documents.  I had to locate the guardian who had been appointed by the court and explain to him what I needed.  In the end, everything was properly signed and filed but I did not understand why no one had made sure all assignments were properly completed and filed at the time the sales agreement was completed.”

Prior to the sale of a business, the owner should identify all intellectual property assets that belong to the company. The owner should have a complete list of Intellectual Property items such as:

• trademarks (registered and not registered)

• copyright registrations

• patent registrations

• trade secrets

• domain names

The owner should be able to provide proof of ownership of all intellectual property assets.  

Trademarks, Copyrights, and Patents

The owners should reveal whether or not there are any licensing agreements for the trademarks and patents, and provide copies of the licensing agreements to the buyer. All royalty agreements for copyrighted material owned by the business should be included.  If there are any confidentiality agreements, non-compete agreements or invention assignment agreements with employees the buyer should be made aware of the agreements and receive copies of the agreements.

The buyer should understand what the trademarks, copyrights and patent registrations cover.  For instance, is the trademark registration just for the words but not include the logo? The buyer should have a clear understanding of what claims the patent registrations cover and if the patents pertain to the current products that are being sold by the company.  

The buyer should review all state and federal trademark and patent registrations the seller claims to own and verify ownership, validity and if the registrations are current or expired.  

Sometimes, small business owners register trademarks and patents in their individual names instead of the company name because they want to maintain individual ownership of the asset.  There should be a frank discussion as to whether or not the individual owner of the trademark or patent is going to include the asset with the sale of the company.

Trade Secrets

If the owner of the business has properly maintained trade secrets there should be confidentiality agreements in place with employees and vendors.  Trade secrets may include recipes, formulas, unique methods, designs, devices, engineering information and prototypes. The buyer should verify that the seller intends to turn over the trade secrets as part of the sale of the company. If the trade secrets are included in the sale of the business the buyer needs to know what steps were taken to maintain the confidentiality of the trade secret (i.e. locked in a safe, limited access by employees, labeled as confidential, training provided to employees).

Domain Names

All domain names and websites owned by the company or used by the company should be listed as part of the assets of the company. The buyer should verify that all domains names owned by the company are included in the sale. If this item is not included or covered you could be walking into a hairy situation…

“I was contacted by a person who purchased a hair salon. The sales agreement did not include the company website and domain name as an asset of the business. Getty Images accused the new owner of the business of copyright infringement because the website contained Getty Images that had not been properly obtained prior to the sale of the hair salon.  The buyer and seller of the business fought for months over who was responsible.”

If the sale or purchase of a business is done correctly, all of the intellectual property assets of the company are identified, verified as valid, inventoried, and included in the sales agreement. Assignments should be signed at the same time the sales agreement is signed and filed with the government entity that issued certificates of registration (i.e. USPTO, State of Florida Division of Corporations) and copies provided to all parties. 

A good intellectual property lawyer can help buyers and sellers’ save time and money by conducting a due diligence search and review of all intellectual property assets prior to the sale to ensure the process does not become an “IP Nightmare” for both parties.

Crystal Broughan is an intellectual property law attorney with Marks Gray, P.A.  If you would like to learn more about Marks Gray’s intellectual property law services please contact Ms. Broughan at cbroughan@marksgray.com or 904-807-2180.

Immigration FAQs: DACA, DAPA, and SCOTUS

What You Need to Know about the Supreme Court decision in U.S. v. Texas

by Giselle Carson, Esq. 
Marks Gray Shareholder 
Immigration Attorney 

Full Post on Ms. Carson's blog - U.S. and Global Immigration News 

About the Decision:

On June 23, 2016, the U.S. Supreme Court (SCOTUS) issued a one-sentence per curium ruling in U.S. v. Texas, simply stating “The judgment is affirmed by an equally divided court”. This 4-4 decision left in place the Fifth Circuit ruling blocking the expansion of the Deferred Action for Childhood Arrivals (DACA+) and Deferred Action for Parents of American and Lawful Permanent Residents (DAPA).  

How does the court ruling affect people who are waiting to apply for this benefit and what can they do about it?

They will need to continue to wait for other potential solutions and/or explore other potential immigration options.  Research shows that 14.3% of the DACA-eligible population may also be eligible for other types of immigration benefits.  For example, USCIS is expected to announce the expansion of the I-601A hardship waiver program.

What is the hardship provisional waiver and what are the expected changes?

The provisional waiver allows certain unlawfully present applicants who are immediate relatives (spouses, children, and parents) of U.S. citizens to apply for a provisional unlawful presence waiver before leaving the U.S. for their consular interview to apply for a green card. The waiver allows the applicant to remain in the U.S. waiting on the waiver decision. Among other factors, the applicant needs to establish extreme hardship to a qualifying relative. 

The new rule should clarify the process and standard of adjudication. Some factors that are expected to “strongly suggest and support a finding of ‘extreme hardship’” include: substantial displacement of care of applicant’s children, travel warnings against travel to country of residence, active military duty of qualifying relative, and prior grant of asylum or refugee status. 

The proposed rule would expand who may be considered a qualifying relative for purposes of the extreme hardship determination to include lawful permanent resident spouses and parents. USCIS reports that this expansion would benefit an estimated 10,000 foreign nationals per year.

Does the Court’s ruling impact DACA 2012?

No, the ruling does not directly impact the original program launched in 2012. The Obama Administration is expected to continue with their current policy of using our immigration enforcement resources on persons convicted of crimes, illegal border crossings, and persons who fail to appear at their removal hearings.

Could the benefits of current DACA beneficiaries change in the future?

Yes.  The next Administration can change those benefits including the value of applying for an Employment Authorization Document (EAD). 

Will DACA+ (the proposed enhanced program) and DAPA ever be implemented?

The Supreme Court is not likely to rehear this case or render a new decision until as late as 2018. Prospective applicants will have to wait at least two more years for any potential benefit from this proposal. The future of the program likely depends on who is elected President in November 2016 and whether that person would continue to pursue this strategy or not.

Does DHS still have the authority to grant deferred action?

Yes. Although DACA+ and DAPA are stopped from moving forward in the court system, the Supreme Court’s decision does not preclude DHS from the review and grant of individual requests for deferred action OR to establish a different deferred action initiative that applies to a category of individuals who are not enforcement priorities.

What can individuals who may be eligible for DACA+ or DAPA do in light of this decision?

They should seek advice from an experienced immigration lawyer on any other options for legal status and make a careful determination as to how to proceed. 

For more information about this ruling or to learn how the Marks Gray Immigration team led by Giselle Carson may assist you today, please email ImmigrationGroup@marksgray.com. 

"Stairway to Heaven" - A Case Study on Copyright Infringement

Intellectual Property Law Updates 

by Crystal T, Broughan, Intellectual Property Law Attorney 

Led Zeppelin fans were pleased to hear that a California jury in a copyright infringement case issued a verdict that the Defendants, members of the Led Zeppelin band and others, did not commit copyright infringement when they wrote and performed the musical composition “Stairway to Heaven”.  The exact question answered by the jury on the verdict form was, “Do you find by a preponderance of the evidence that original elements of the musical composition Taurus are extrinsically substantially similar to Stairway to Heaven?”  The jury marked “No” on the verdict form.

Robert Plant, former frontman for Led Zeppelin
Photo Courtesy of Big Stock 2016

                The Plaintiff in the case was the Trustee for the Randy Craig Wolfe Trust.  Randy Craig (a/k/a Randy California) was the founding member of the rock band, Spirit.  Randy California wrote a song entitled “Taurus” which was included on Spirit’s self-titled album in 1968 and performed throughout the country.  Randy California drowned off the coast of Hawaii in 1997.  The Trust was established after his death by his mother.  The Trustee of the Randy Craig Wolfe Trust is Michael Skidmore, the Plaintiff. 

                The Plaintiff alleged that the elements of copyright infringement were established because the Led Zeppelin band had access to the musical composition by having close interaction with the band Spirit and performing as an opening act for Spirit. Plaintiff claimed that to a reasonable observer, the iconic notes, melodies and chord progressions of “Stairway to Heaven” were almost identical to “Taurus” therefore there was a substantially similar element between the two compositions. 

                James Page and Robert Plant, members of Led Zeppelin, are listed as the writers of the song “Stairway to Heaven” which was released in 1971 and a copyright registration was issued by the US Copyright Office in 1972.  The Led Zeppelin band toured the country in 1968 and opened for the band Spirit.   The Defendants claimed many affirmative defenses in response to the Amended Complaint filed with the court including, “Stairway to Heaven” was an independent creation, de minimis infringement, fair use, unreasonable delay in the assertion of the claim and prejudice as a result of the delay, and statute of limitations. 

                According to the court record, the jury listened to recordings of both musical compositions and reviewed the original sheet music that was filed with the US Copyright Office.  Defendants James Page and Robert Plant both testified as to events that took place more than 40 years ago based on what they could remember.  Experts in musicology testified for the Plaintiff and the Defendants.  There were arguments over protected and unprotected elements of the composition.   Two years of attorney arguments, three days of witness testimony and presentation of evidence led to a Jury Verdict for the Defendants.  Now Plaintiff will have to battle in court when Defendants demand that the Plaintiff pay all of their attorneys’ fees.

                The case was filed in May 2014, forty-six years after the creation of “Taurus”, forty-three years after “Stairway to Heaven” was released and seventeen years after the death of Randy California.  The case went to a jury trial in June 2016 and lasted three days.  If Randy California considered “Stairway to Heaven” to be an infringement of his musical composition, “Taurus” why was a copyright infringement case filed sixteen years after he passed on?  

Special Assistance and Research from Marks Gray Summer Associate Austin K. Sherman

Crystal Broughan is an intellectual property law attorney with Marks Gray, P.A.  If you would like to learn more about Marks Gray’s intellectual property law services please contact Ms. Broughan at cbroughan@marksgray.com or 904-807-2180.