How serious is the risk? Well, a company found to be in violation of the Digital Millennium Copyright Act (DMCA) could pay up to $150,000 per image in actual damages, plus legal fees. The DMCA has set a range for statutory damages of between $2,500 and $25,000 per violation.

Blue Interactive Agency’s CEO and author of its SEO blog, Peter Brooke, recently addressed this issue and discusses a couple of relevant lawsuits: 

1. A photographer tweeted images that were later found to be improperly disseminated by several large media outlets, including Getty Images and The Washington Post.
2. Copywriters used an Internet image in a client’s tourism blog, erroneously believing that images found online without copyright notices were free to use.

Read the entire article:  Using images and photos from Google and copyright laws (Blue Interactive Agency, SEO blog, May 2013)

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For instance, being able to identify the “real party in interest” does not prevent patent trolls from continuing to use “exclusive licensees” as the vehicle of choice to issue demand letters or initiate infringement proceedings. Similarly, the practical reality is that small- to mid-sized businesses do not have the financial resources for a patent infringement trial, so the proposed added incentive of obtaining a “prevailing party attorney’s fee award” rings hollow.

The upside is that attention is being directed to the patent troll problem. But until there is real reform at the source, i.e., addressing the issuance of these questionable patents or the standing rules for enforcing a patent, the effect of any reform will be minimal at best.

Related news stories:

• Obama orders regulators to root out ‘patent trolls’ (The New York Times, 6/5/13)
• Lawyers weigh in on Obama ‘patent troll’ initiatives (Law360, 6/5/13)

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We’ve identified 13 steps you and your attorney can take now to increase the probability your wishes will be honored, without significant inconvenience or expense.

For example:

Family meetings: Calling a family meeting to discuss the will or trust may help quell the inevitable surprise, shock, disappointment or anger common among beneficiaries when they first learn of the contents of a will or trust. It is more difficult to challenge an estate plan that was clearly communicated to the beneficiaries by the testator.

Medical and/or psychological evaluations: Having a doctor perform a capacity evaluation can provide strong evidence in the event of a “sound mind” challenge.

Documentation: It’s a good idea to clearly document estate planning decisions because will and trust contests often occur years after the documents are signed, when there is a greater chance the estate-planning attorney and key witnesses may be unable to recall details of client meetings or the execution ceremony.

Read about all 13 action items we discussed in an article for estate planners, published on WealthManagement.com: The best defense is a good offense (March 8, 2013)

Authors: Elaine Bucher, Alyse Reiser and Michael Simon

Overall, Senate President Don Gaetz and House Speaker Will Weatherford worked well together and the session went along fairly smoothly, minus a few bumps in the road here and there as is typical during the final week.

This year’s session focused on ethics and election reforms, Florida’s gaming laws, Medicaid, and the elimination of sales tax on manufacturing equipment for three years. Teachers and state workers received their first pay raises in the state budget in several years, the insurance industry managed to hold on to a decades-old tax break, Internet cafes were banned, and a texting-while-driving ban passed after many years of unsuccessful attempts to pass similar language. Lawmakers agreed to a $74.5 billion budget, which is now before Governor Rick Scott for his review. Legislative leaders and Gov. Scott were unable to come to an agreement on expanding Medicaid for 1 million Floridians as well as a stadium deal utilizing taxpayer dollars for the Miami Dolphins. Democratic leaders are calling for a special session to address Medicaid expansion, but it remains to be seen whether such a special session will be called.

Over 1,800 bills were filed for consideration by the Legislature this year. Of those 1,800, only 259 actually passed both the Senate and House.  And of those 259 bills that passed, below are some highlight.

Senate bills passed:

Mortgage Foreclosures (SB 1852): sets out the spending from the National Mortgage Foreclosure settlement.

Insurance (SB 1770): sets up a clearinghouse to push Citizens Property Insurance policies into other private companies, adds restrictions to some Citizens coverage, and assigns Citizens an Inspector General.

Energy (SB 1472): places review benchmarks for power companies that want to collect money from customers in advance of building nuclear power plants.

Alimony Reform (SB 718): reforms the state’s alimony laws, including the concept of permanent alimony. VETOED by Gov. Scott

Sales Tax Holiday (SB 406): sets the three-day sales tax holiday for back-to-school shopping in August.

Homestead Property and Rental Issues (SB 342): allows a person with homestead exemption to rent out their property for 30 days without losing their homestead exemption.

Texting While Driving (SB 52): bans texting while driving except when stopped.

Ethics (SB 2): changes state ethics laws by banning elected officials from taking advantage of their positions to get taxpayer-funded jobs and prevents legislators from lobbying state agencies for two years after they leave office.  SIGNED INTO LAW 

House bills passed:

Expert Testimony (HB 7015): tightens the standards for expert witnesses in lawsuits, adopting the same standards used in federal courts in deciding whether expert testimony should be admitted.

Taxes (HB 7007): eliminates the sales tax on manufacturing equipment for three years. SIGNED INTO LAW

Cancer Drugs (HB 1159): requires insurers who offer IV cancer drugs to also cover oral cancer medications.

Miami Children’s Hospital (HB 1159): allows Miami Children’s Hospital to have 10 obstetrics beds.

Nursing Home Beds (HB 1159): creates an expedited process for new nursing home bed in certain places, like The Villages in central Florida.

Environmental Permitting (HB 999): a wide-ranging permitting bill.

Sick Leave Preemption (HB 655): keeps local governments from setting their own policies on earned sick leave and other forms of compensation.

Wine (HB 623): allows the sale of wine in 5.16 gallon canisters that can be tapped like a keg.

Florida Election Code (HB 569): changes the campaign-finance system by eliminating committees of continuous existence (CCEs) and increases the limits on individual contributions to candidates.  SIGNED INTO LAW

Dyed Diesel Fuel (HB 423): creates a sales tax break on dyed diesel fuel used by commercial fishermen, shrimpers, oystermen and clammers.

Gaming (HB 155): outlaws the types of electronic games used in Internet cafes. SIGNED INTO LAW

Charitable Contributions (HB 95): prevents charities from surrendering monies received from a Ponzi schemer if the charity took the money in good faith.

Mortgage Foreclosures (HB 87): supposed to speed up the foreclosure process.

* * *

If you would like additional information on these or any other bills, please do not hesitate to contact Joanna Bonfanti.

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1. Revised Dissolved Oxygen criteria adopted

Revisions to the Florida Dissolved Oxygen (DO) criteria were adopted by the Environmental Regulation Commission (ERC) at its April 23 meeting. This is a very favorable development for business interests such as permittees and dischargers since it reflects natural Florida conditions where DO lower than the previous criteria are common, even in pristine water bodies. There will be less need to apply for Site-Specific Alternative Criteria, which will save time and money for permittees. Water bodies currently listed as impaired may be removed from the list of impaired waters. The revised DO criteria must be submitted by the Department of Environmental Protection (DEP) to the U.S. Environmental Protection Agency (EPA) for approval prior to becoming effective. These revised criteria are expected to be approved.

2. Numeric nutrient criteria manual adopted

The ERC also adopted a manual for implementation of numeric nutrient criteria (NNC) as a rule. The manual was previously submitted to the EPA to address a number of questions about Florida’s NNC rule. Environmental groups challenged the manual as an unadopted rule. It has been adopted as a rule to resolve the challenge and will be submitted to the EPA as part of the state’s NNC rule package.

Landowners with canals or ditches on their property need to be aware that the NNC applies to these water bodies (most of which cannot meet the criteria). The manual establishes a process to exempt canals and ditches from the rule if notice and required information is submitted to the DEP demonstrating that the water bodies were artificially created and are not used for navigation.

3. Human-health-based criteria not adopted

The ERC voted not to adopt stringent proposed revisions to the human-health-based water quality criteria, which the DEP had based, in part, on new EPA guidance that had previously been applied to no other state.

Instead, the ERC voted to continue the hearing until August or September. The ERC asked Florida’s DEP to review data and information raised at that hearing by business and environmental groups.

Issues raised by business interests included:

• Fish consumption data used in calculating the numerous new criteria were short-term data, although the rule was based on a lifetime of exposure from fish consumption. Testimony pointed out long-term exposure data was available and thus assumptions for exposure due to fish consumption should have been adjusted to reflect long-term exposure, making the criteria much less stringent.
• New EPA “guidance” required the DEP to use a new policy known as relative source contribution (RSC). The new policy has not been required of any other state and did not provide a basis for the criteria to be revised to appropriately set the criteria consistent with Florida’s risk target levels. The risk level can be determined by using a chemical specific analysis, which the ERC asked Florida’s DEP to explore after several chemical-specific examples of such a calculation were provided.
• In addition, the proposed criteria inappropriately utilized monthly averages for non-carcinogenic criteria although a chronic or long-term toxicity basis was available and should have been used.

The ERC and its chair did an excellent job in sorting through these very complex issues and data.

Durable Power of Attorney. Although this document is effective immediately, it is designed to be used in the event of your incapacity, when you cannot give prompt or intelligent consideration to financial matters by reason of illness, or mental or physical disability. It can also be used if you are otherwise unavailable, on extensive travel for instance. Under this document, you appoint an individual as your Attorney-in-Fact to perform a wide variety of business and financial transactions on your behalf such as establishing banking accounts, writing checks, and engaging in investment transactions. The Attorney- in-Fact may also be given the power to make gifts, make elections on tax returns, manage a deferred compensation plan such as an IRA, and even create or modify trusts. The Power of Attorney is only effective while you are living. Florida has relatively new laws that govern Durable Powers of Attorney, so even if you already have one, if it was executed prior to October 1, 2011, it is time to execute a new updated version.

Designation of Health Care Surrogate and Living Will. Under this document, you appoint an individual to make all health care decisions for you in the event of your incapacity. Your health care surrogate will make only health care decisions for you which they believe you would have made under the circumstance if you were able to do so. This document typically also contains a Living Will under which you declare and direct the withholding or the withdrawal of life-prolonging procedures if you have a terminal condition or an end stage condition.

HIPAA Release. Under this document, you authorize your health care providers to disclose all of your protected health information at the request of one or more of a list of individuals that you designate. Providing others with access to this information is useful if they need to determine your capacity or if they need to provide insurance companies or medical care providers with this information.

Will. A Will governs the distribution of assets held in your individual name at your death. Under your Will, you also select a Personal Representative (also known as an Executor or Executrix in many states) to administer your estate and also appoint a Guardian for any minor children. By executing a Will, you direct how your assets should be distributed rather than have Florida’s intestate laws govern. Absent a Will, your individual property will pass to your spouse unless either one of you has descendants that are not descendants of both of you. In that case, one-half of the property passes to the spouse and the balance passes to your descendants. If you do not have any descendants, but your spouse does, then in that event, one-half of your property passes to your family, i.e., your parents, as described below.

If you do not have spouse, your assets will be distributed to your parents who survive you, or if neither of them are living to your brothers and sisters in equal shares, with the share of any deceased sibling to be further divided among their descendants.

Revocable Trust. The final document you should consider is a Revocable Trust which is sometimes called a Living Trust. A Revocable Trust provides for the disposition of your assets both during your lifetime and at your death. The Revocable Trust provides a vehicle for the management of your assets in the event you become incapacitated where the assets can be managed by a Trustee. This avoids the expense and complication of having to appoint a Guardian in the event of your incapacity.

Similar to a Will, another purpose of a Revocable Trust is to provide for the ultimate distribution of your assets at your death. By transferring assets to your Revocable Trust you may avoid the need for your Personal Representative to transfer the assets into the name of your estate after your death.

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The U.S. Trade Representative (USTR) has requested interested Florida (and other U.S.) companies and trade groups to submit written comments by May 10, 2013 concerning the proposed EU Free Trade Agreement. See Request for comments concerning proposed transatlantic trade and investment agreement (USTR, April 1, 2013).

To promote Florida exports, the USTR is interested in suggestions on such matters as negotiating removal of EU tariffs and non-tariff barriers on specific exports from Florida to the EU, and negotiating removal of EU barriers on Florida firms performing professional or other services within the EU. Conversely, the USTR seeks suggestions on such matters as establishing rules of origin to be used to determine whether or not products with only partial EU content will qualify for U.S. duty-free importation to Florida under the proposed agreement, and any phase-ins needed to protect Florida firms if U.S. tariffs and non-tariff barriers on products and services imported from the EU are eventually eliminated.

Gunster is available to assist its clients in drafting such comment letters to the USTR.

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Florida has an outstanding regulatory model. Tracing its roots to 1887, Florida’s PSC has been recognized as one of the most advanced and effective utility regulators in America. Many of the regulatory practices advanced by Florida are considered effective best practices nationally; these are regulatory practices that protect the consumer and retain a company’s ability to make necessary system improvements to better serve that customer.

Consistent with this tried-and-true regulatory paradigm, Florida has recognized that financial health and service quality are not, by any means, mutually exclusive terms for regulated companies; neither should they be.

In the area of electricity, Florida has a regulated utility market whereby private utilities develop and operate power plants to meet the state’s growing energy needs. They do this under the watchful eye of state regulators charged with enforcing the state’s numerous rules and regulations.

The statutory structure also promotes long-term planning to ensure that Florida’s energy needs are met responsibly and that costs are carefully scrutinized by the PSC. The process of planning for Florida’s future energy needs is ongoing and focuses on a 10-year planning horizon, updated annually, which emphasizes a diversity of options for energy supply.

Rates and pass-through costs are thoroughly reviewed through formal public hearings before the PSC and are approved only if the utility proves that the pertinent costs and expenditures are reasonable and prudently incurred. These hearings involve many stakeholders, the public and Florida’s consumer advocates.

With that said, the Florida Legislature has recognized long delays in licensing and development of some large power plants. Additionally, legislators have recognized that consumers would be better serviced under a regulatory model taking a step-by-step approach. This type of process ensures costs are prudently incurred through an annual hearing that will make sure the project remains financially feasible.

If the hearings were delayed for either nuclear or integrated-gas plants until they are complete and operational, consumers would be responsible for enormous carrying charges in the form of interest that would substantially increase the overall cost of the plants.

The statutory approach in Florida (and other states) allows the hearings to proceed periodically as the expenditures are made to avoid ratepayers incurring additional cost from the interest. This applies only to the licensing and pre-construction development costs, not to the costs of the actual construction.

There are other protections. The utility company can only seek recovery of costs that have already been expended and only costs that it can prove were reasonable and prudently incurred. The company must report annually to the PSC actual costs as compared to estimated costs.

Specifically, before Oct. 1 of each year, the PSC conducts a hearing to determine the reasonableness of projected pre-construction expenditures and the prudence of actual expenditures by the utility.

By May 1 of each year, the utility must also submit for the PSC review and approval a detailed analysis of the long-term feasibility of completing the power plant. This is also subject to public review and input.

Of course, public debate on issues that impact consumers is healthy and appropriate. It is equally appropriate to discuss the importance of diversity in energy sources and the benefits of long-term reliability and viability.

Over the years, I appreciated the vast knowledge and expertise of the PSC staff and commissioners and their collective ability to ask tough questions and get the correct information, which allowed them to make the most informed decision. The PSC structure ensures transparency, accountability and a process by which consumers are heard and protected.
We should be cautious about accepting baseless claims that erode the dignity of our institutions — including the professionals who provide regulatory oversight of utilities.

Lila Jaber of Tallahassee is an attorney and former chair of the Florida Public Service Commission.

Thus far, the expansion of the state’s Medicaid program sought by the Patient Protection and Affordable Care Act (PPACA) has positioned leaders in Tallahassee on different sides of this important issue. The decision to be made in Florida has taken on increasing political meaning as many opponents of PPACA have urged state leaders to decline expanding Medicaid as contemplated by the new law. The federal government has offered states like Florida an incentive to do the expansion voluntarily with a promise to pay all costs associated with the state’s Medicaid expansion for three years.

Which brings us to Florida and the 2013 session. In February, Governor Rick Scott announced his support for expanding Medicaid to cover the uninsured, stating “I concluded that for three years the federal government is committed to paying 100 percent of the cost of new people in Medicaid; I cannot, in good conscience, deny the uninsured access to care.” This announcement alienated some of Governor Scott’s core supporters.

The Florida Legislature responded coolly to the governor’s position. House Speaker Will Weatherford publicly announced his opposition to the governor’s support and a House Committee followed the speaker’s lead by rejecting a Medicaid expansion proposal the night before the legislative session began. On Monday, March 11, a Senate select committee also rejected the expansion in a party-line vote, 7-4. However, this rejection does not spell defeat for uninsured Floridians. The committee chairman, Senator Joe Negron, signaled this was an opportunity for the state to move away from the federal Medicaid system and to create a basic health insurance plan for the Medicaid population.

How this issue is resolved during session will have far-reaching ramifications on a range of business issues, including allocation of the state’s $74+ billion budget, as well as how other legislative priorities are resolved.

Governor Scott has made teacher pay increases one of his top initiatives this year, while legislative leaders have prioritized higher education reform and changes to Florida’s ethics laws. Will the Legislature give deference to the governor’s proposed pay increases? Or will the Legislature reject the governor’s request on that issue as well and, instead, focus on passing its own priority items?

We will stay on top of these and other issues affecting Florida business as the 60-day legislative session continues. In the meantime, feel free to contact any member of Gunster’s Governmental Affairs practice team with any questions or items of concern to you and your business.

While many investors still believe the idea behind the JOBS Act is a good one, some are beginning to question the effectiveness of the Act. The SEC has delayed rule making for some major provisions, including crowdfunding and advertising. In addition, some provisions have been implemented but are not producing the intended results.

Read the Compliance Week article: Is the JOBS Act a bust? in which Gunster attorney David Scileppi discusses how the JOBS Act is faring one year after its enactment.

Find out more about the JOBS Act on Gunster’s Emerging Growth Companies Task Force Web page.