Friday, June 22, 2018

United States Supreme Court state internet sales tax ruling

On June 21, 2018, the Supreme Court  issued  an opinion reversing prior precedent  allowing states  to require online retailers to collect and remit sales tax to the state where goods and services are provided regardless of whether the retailer has a "physical presence" in that state. Justice Kennedy wrote the opinion of the Court, joined by Justices Thomas, Ginsburg, Alito, and Gorsuch.
In South Dakota v. Wayfair, the Court overturned  a quarter-century  precedent and declared the prior “physical presence” test archaic .  Online sellers of goods and services may be required to collect sales and use tax in a number of new states as a result of the ruling.
In Wayfair, the Court considered South Dakota’s new sales tax statute which requires sellers to collect and remit sales tax in South Dakota if the seller (1) annually delivers more than $100,000 of goods or services into South Dakota or (2) engages in 200 or more  that the law was not retroactive.
It is anticipated that states across he country will follow suit with South Dakota creating billions of dollars in state revenue

Monday, June 4, 2018

2019 Super Lawyer Selection

John P. Kelly has again been named a Florida "Super Lawyer" for 2018-1019.

Tuesday, August 8, 2017

Florida Medical Marijuana Bill

Florida Gov. Rick Scott  has signed into law a medical marijuana use bill following an over 70 per cent  in favor of amending the Florida Constitution to allow medical marijuana use as prescribed by a licensed Florida physician. Florida joins 27 other states that recognize some form of marijuana use. A qualifying patient must have a “debilitating medical condition,” defined as: cancer, epilepsy, glaucoma, HIV/AIDS, PTSD, ALS, Crohn’s disease, Parkinson’s disease, multiple sclerosis and other debilitating medical conditions of the same kind or class or comparable to those enumerated. What constitutes “other debilitating medical conditions” remains to be seen. Florida still bans marijuana smoking. Legal marijuana may only be consumed in oil or edible form.  Meanwhile, the Federal Controlled Substance Act, marijuana is still a Schedule I hallucinogen and its use is still illegal despite the legalization of its use in many states. Unlike some state laws, the Florida statute does not require an employer to accommodate on-site medical use of marijuana. Florida employers thus have no legal duty under this new law to allow employees to consume medical marijuana at the workplace. 

Saturday, August 5, 2017


      Fort Lauderdale attorney John P. Kelly, has been named a Senior Fellow of the Litigation Counsel of America (LCA). Kelly is a trial lawyer in the firm’s business litigation section. A 1974 graduate of the College of the Holy Cross, Kelly received his Juris Doctor degree from Vanderbilt University School of Law in 1978. He has represented numerous clients in both federal and state courts throughout the United States. Kelly regularly represents domestic and international companies in the enforcement of their intellectual property rights and in complex commercial litigation.

     The LCA is a trial lawyer honorary society composed of less than one-half of one percent of American lawyers. Fellowship in the LCA is highly selective and by invitation only. Fellows are selected based upon excellence and accomplishment in litigation, both at the trial and appellate levels, and superior ethical reputation. Senior Fellow status in the society is reserved for advanced commitment to and support of the LCA, Diversity Law Institute and Trial Law Institute. The LCA is aggressively diverse in its composition. Established as a trial and appellate lawyer honorary society reflecting the American bar in the twenty-first century, the LCA represents the best in law among its membership. The number of Fellowships has been kept at an exclusive limit by design, allowing qualifications, diversity and inclusion to align effectively, with recognition of excellence in litigation across all segments of the bar. Fellows are generally at the partner or shareholder level, or are independent practitioners with recognized experience and accomplishment. In addition, the LCA is dedicated to promoting superior advocacy, professionalism and ethical standards among its Fellows. 

Tuesday, March 28, 2017

US Supreme Court copyright ruling on cheerleader uniforms

United States Supreme Court  held on March 22, 2017 that the “pictorial, graphic or sculptural features” of the “design of a useful article” may  be protected by copyright registration.
In Star Athletica, L.L.C. v. Varsity Brands, Inc., the Court ruled in a case  brought by Varsity Brands claiming  infringement by Star Athletica of five two-dimensional designs consisting of various lines, chevrons, and colorful shapes on cheerleading uniforms.  The federal district court granted summary judgment in favor of Star Athletica that the copyrights were invalid, holding that the designs could not be separated from the useful article on which they were applied—the uniforms—and under copyright law, useful articles could  not awarded have copyright protection.  Varsity Brands appealed to the  Sixth Circuit Court of Appeals, which  reversed the district court decision, but in doing so acknowledged that U.S. courts did not have  a clear, consistent “separability” test to guide them.
Justice Thomas set forth the appropriate “separability” test to be applied to when a pictorial, graphic or sculptural features of the design of a useful article is copyrightable.  Under the Court’s announced  separability test, a feature incorporated into the design of a useful article is eligible for copyright protection “only if the feature: (1) can be perceived as a two- or three-dimensional work of art separate from the useful article, and (2) would qualify as a protectable pictorial, graphic, or sculptural work—either on its own or fixed in some other tangible medium of expression—if it were imagined separately from the useful article into which it is incorporated.”  Because  the designs on the cheerleader uniforms could be imagined separately from the uniforms, the Court held they were protected by copyright.

Thus, the fashion industry will likely maintain  greater design infringement claims and advocate that such designs (e.g. patterns, shapes, etc.) can be imagined separately from the useful article (e.g., the dress itself).

Tuesday, November 15, 2016

A fine imposed by a homeowners’ association (“HOA”) for violating the HOA’s governing documents is a debt for purposes of the Florida Consumer Collection Practices Act

In Agrelo v. Affinity Management Services, LLC,  Case No. 15-14136, the Eleventh Circuit on November 9, 2016 overruled a Florida  district court decision and held that a fine imposed by a homeowners’ association (“HOA”) for violating the HOA’s governing documents is a debt for purposes of the Florida Consumer Collection Practices Act. The Court also held that it was a question of fact under Florida law as to whether the homeowner's association was libale for the acts of debt collector law firm. The Court found, " Unlike the FDCPA, the FCCPA’s proscriptions are “not limited to debt collectors.” Schauer v. Gen. Motors Acceptance Corp., 819 So.2d 809, 812 n.1 (Fla. Dist. Ct. App. 2002). Compare 15 U.S.C. § 1692e (prohibiting “[a] debt collector” from engaging in “any false, deceptive, or misleading representation or means in connection with the collection of any debt”), and id. § 1692f (prohibiting “[a] debt collector” from employing “unfair or unconscionable means to collect or attempt to collect any debt”), with Fla. Stat. § 559.72 (regulating the conduct of any “person” collecting debts).[The homeowner's association] is not exempt from the FCCPA simply because it is not a statutorily defined debt collector."

Tuesday, November 8, 2016

Predictive Scheduling Laws

New laws are being touted at federal, state, and local levels to alter the ways employers schedule workers. Proposed bills  suggest the need to  provide increased predictability to workers' schedules by requiring employers to give employees advance notice of work schedules, pay employees for rescheduling by the employer and so forth.  So far, such proposals have focused on the food service, hospitality, and retail sectors who have fluctuating work schedules.Unions in particular have been pushing for  such legislation.On the other hand, retail and hospitality employers and industry groups, take an inapposite view due in part to the variation in their customer demand. Such employers argue that predictive scheduling  would hamper their businesses by eliminating flexibility 

In January 2015, San Francisco became the first city to pass predictive scheduling laws implementing the Predictable Scheduling and Fair Treatment for Formula Retail Employees Ordinance as part of the city's larger Retail Workers' Bill of Rights aimed at chain stores and restaurants. The ordinance among other things, that employers pay employees for cancelled on-call shifts, provide notice to workers of their biweekly schedules, give new hires written estimates of expected hours and schedules, and offer extra hours to current part-time employees before hiring new workers or utilizing a staffing agency. In September 2016, Seattle  followed with a unanimous vote on its Secure Scheduling Ordinance, which  imposes additional requirements on employers. 

The U.S. Department of Labor has voiced that  it is considering  whether employees should be legally entitled to predictive scheduling under the Fair Labor Standards Act.Predictive scheduling legislation currently is pending at the federal level as well as a the state level in California, Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon and Rhode Island.