IRA and 401(k) retirement accounts are generally exempt from claims of creditors pursuant to Section 222.21, Florida Statutes and Section 522 of the Bankruptcy Code.  For this reason, these types of retirement accounts can be a useful asset protection tool.  However, as I have mentioned in previous blog posts, there are exceptions to every rule!

Beware – prohibited transactions can cause the assets in your IRA or 401(k) account to LOSE their exempt status!  Terms like “set it and forget it,” and “we are programmed to receive,” come to mind when I think of these types of accounts.  Playing around with IRA or 401(k) funds, especially self-directed accounts, is risky business!

By example, in a S.D. Fla. Bankruptcy Case, the Court concluded that the funds in the Debtor’s Merrill Lynch IRA were not exempt because the Debtor engaged in prohibited transactions pursuant to the Internal Revenue Code and the funds in his two other IRA accounts were not exempt because they constituted funds from the Merrill Lynch IRA which had lost its exempt status.


  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

In the US, it is almost universally established that BBB grades are opinion statements entitled to absolute privilege under the First Amendment of the Constitution. Some inroads on BBB liability have been made by attacking statements other than the rating. Specifically, in Caribbean Cruise Line, Inc. v. Better Business Bureau of Palm Beach County, Inc. d/b/a Better Business Bureau of Southeast Florida and the Caribbean, Case No. 4D13-3916, a trial court found that the BBB’s representations regarding systems and practices could be defamatory if the Plaintiff could prove the falsity of the statements.

On the other hand, in Canada, ratings seem to be the fair subject of a defamation suit. In Walsh Energy Inc. v. Better Business Bureau of Ottawa-Hull Incorporated, 2018 ONCA 383 (Hoy A.C.J.O., Huscroft and Paciocco JJ.A.), April 19, 2018, a Canadian appeals court found that the plain and ordinary meaning of a D- grade issued by the BBB to a business could be legqally defamatory. While the BBB ultimately prevailed on one of the defenses it asserted in the litigation, the Canadian court, unlike US courts, found that the plain and ordinary meaning of a D- rating was actionable.

While the Canadian model has no impact on the status of US consumer bureau defamation law, the distinction between Canadian law and US law is interesting especially for US plaintiffs that have been frustrated by the BBB’s opinion statement defense.


W Mason is an Partner with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W has previously written on several issues pertaining to litigation involving consumer bureau defamation. W focuses his practice on commercial litigation throughout Florida, with an emphasis on litigation involving consumer bureaus and various Better Business Bureau affiliates. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.

The 2017 revisions to the A201 improves the Contractor’s ability to request and obtain financial information from the owner throughout the project. On most projects, Owner’s typically create a single purpose legal entity, usually an LLC, that owns the real property where construction takes place. The legal entity typically enters into the construction contract with the Contractor. The A201 recognizes that the entity entering in to the construction Contract on behalf of the Owner most likely has little or no assets. As such, it provides the Contractor with the ability to request reasonable evidence of the Owner’s ability to pay.

The 2017 revisions of Section 2.2 continues to allow the Contractor to request reasonable evidence (1) prior to commencement, (2) after failure to make a timely payment, (3) after a material change in the work that materially affected the contract sum, or (4) after identification of a reasonable concern over the Owner’s ability to pay. While the 2007 A201 did not impose an express timeline on the Owner or a consequence for the Owner’s failure to provide the reasonable evidence, the 2017 revision requires the Owner to provide the reasonable evidence within 14 days after the Contractor’s request. If the Owner fails to provide reasonable evidence within 14 days, the Contractor may stop work. If the request is made due to a change materially affecting the Contract sum, the Contractor may only stop the work related to the change. Significantly, the 2017 A201 expressly provides that the contract time and sum shall be increased by the amount of the Contractor’s reasonable costs and delay, plus interest. Given that Section 2.2 of the 2017 A201 has more “teeth” in favor of the Contractor, practitioners representing owners may want to consider revisions to Section 2.2 accordingly.


W Mason is an partner with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W is Board Certified in Construction Law by the Florida Bar Association. W focuses his practice on construction and commercial litigation throughout Florida. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.

I’ve written a new post for Fox’s In the Weeds blog.  See my post which provided an update regarding Florida medical marijuana litigation.


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

An employer can be liable for the actions of its employees, even if committed outside the course and scope of the employment.  The two causes of action are negligent hiring and negligent retention.  The principle difference between a negligent hiring and a negligent retention claim is “the time at which the employer is charged with knowledge of the employee’s unfitness.”

In a negligent retention action, a plaintiff must show:

  1. The employer was required to make an appropriate investigation of the employee and failed to do so;
  2. An appropriate investigation would have revealed the unsuitability of the employee for the particular duty to be performed or for employment in general; and
  3. It was unreasonable for the employer to hire the employee in light of the information he knew or should have known.

In Florida, there is a presumption that an employer is not negligent in hiring an employee if the employer:

  1. Obtained a criminal background check from the Department of Law Enforcement;
  2. Made a reasonable effort to contact prior employers and references;
  3. Required the employee to complete a job application that included questions related to the employee’s criminal background and civil liability for intentional torts;
  4. Obtained a check of the driver license record of the employee if a check is relevant to the work the employee will perform; or
  5. Interviewed the employee.

In a negligent retention action, a plaintiff must show:

  1. During the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and
  2. The employer failed to take further action such as investigating, discharge, or reassignment.

However, in either a negligent hiring or negligent retention action, the tortious conduct of the employee must have been foreseeable to the employer to hold the employer liable.  An employee’s wrongful conduct that is unrelated to the conduct that ultimately harmed the plaintiff will not be enough.

To avoid liability, employers should have procedures in place to conduct an appropriate investigation before hiring an employee and to monitor an employee once retained.


Megan A. McNamara is an attorney with the law firm Fox Rothschild LLP.  Megan practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida.  Megan focuses her practice on commercial and business litigation throughout Florida. You can reach Megan at (561) 804-4445 or mmcnamara@foxrothschild.com

My November, December, and February posts, discussed details of homestead protection in Florida including requirements, benefits and pitfalls.  If you are married, another asset protection and estate planning tool available to you is Tenants by the Entirety (“TBE”) ownership.  In Florida, a married couple may own several types of property TBE, including, but not limited to, bank accounts, real property (including their homestead) and personal property.   In fact, Florida law presumes that property acquired by a married couple is TBE property if the “six unities” of TBE ownership are present.  The six unities required for TBE ownership are (1) unity of possession (joint ownership and control); (2) unity of interest (the interests in the account must be identical); (3) unity of title (the interests must have originated in the same instrument); (4) unity of time (the interests must have commenced simultaneously); (5) survivorship; and (6) unity of marriage (the parties must be married at the time the property became titled in their joint names).

Under Florida law, the benefit of owning property TBE is that it is exempt from process to satisfy debts owed to individual creditors of either spouse.  This is because an interest in TBE property is not equivalent to one half of the equity in the property, but rather, an inseverable interest in the whole owned by both spouses.

However, TBE is not a perfect asset protection tool as it can be broken, severed, and/or create unwanted liability.

  •  TBE property is not exempt from process to satisfy joint debts of both spouses;
  •  TBE protection dissolves if one of the spouses passes away;
  •  TBE protection is broken by divorce; and
  •  TBE ownership of cars, boats and/or other recreational vehicles could result in liability for both spouses under the dangerous instrumentality doctrine.

TBE ownership is not right for everyone or every situation, but it is worth considering if it is available to you.


  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

There has been a lot of press lately on animals (and humans) behaving badly on airplanes.  Some of the problems in the friendly skies relate to the huge increase in passengers bringing on animals they claim to be emotional support animals (“ESAs”).  See my prior post for details.

Congress is now considering changes to the Air Carrier Access Act of 1986 to deal with the problem of pets pretending to be ESAs.  Senator Richard Burr (R-N.C.) has proposed to tighten up the law so only “service animals,” as defined by the Americans with Disabilities Act (“ADA”), could fly uncaged in an airplane cabin.

The ADA’s definition of service animals is much narrower than the Air Carrier Access Act and restricts service animals to dogs (with one exception for miniature ponies) and the dog has to be individually trained to provide an actual service or perform tasks for the disabled person.

U.S. airlines flew 751,000 comfort pets last year, an 80 percent jump from the previous year, according to an informal survey by industry group Airlines for America. Those animals include dogs and cats, yes. But also rabbits, ducks, parakeets and monkeys.

All those animals on planes have created safety issues for other passengers which have included bites and attacks by the animals, increased allergic responses, and even simply creating risks by having unsecured cargo in the cabin.  Moreover, with no empty seats on flights these days having pets on laps (including large pets) has created conflict between passengers and between passengers and the crew.

The proposed legislation would also:

  • Create a criminal penalty for claiming that a pet is a service animal and for falsely claiming disability needs; and
  • Require federal agencies to establish a minimum standard of service-animal behavior training for the animals.

While some states have considered or passed legislation imposing criminal penalties for passing off a pet as a service animal, Congress has previously held back in doing so until now.

Additionally, imposing a standard of training for service dogs would be a major change to Federal law.


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Life moves pretty fast. If you don’t stop and look around once in a while, you could miss it.

That’s a quote from Ferris Bueller, but these days the sentiment is equally applicable to Americans with Disabilities Act (“ADA”) Title III litigation in Florida.  Just a few months ago, I was posting about ADA Title III web site accessibility lawsuits and making your web site accessible for the visually impaired.  Now, the Plaintiffs’ Bar has moved on to the next wave of ADA Title III litigation.

The latest trend is ADA Title III litigation focused on hotel web sites and this type of litigation combines elements of past ADA Title III litigation in that it deals with the physical space at the hotel (ADA accessible rooms) as well as how those rooms are described on the hotel’s reservation system (which often, if not always, includes a web site) and how the rooms are reserved and held for guests.

These cases are being brought pursuant to 28 CFR 36.302(e) which provides:

(1) Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party –

(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;

(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;

(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;

(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and

(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.

(2) Exception. The requirements in paragraphs (iii), (iv), and (v) of this section do not apply to reservations for individual guest rooms or other units not owned or substantially controlled by the entity that owns, leases, or operates the overall facility.

(3) Compliance date. The requirements in this section will apply to reservations made on or after March 15, 2012.

At present, even though these regulations went into effect in 2012, there is limited case law interpreting how these regulations will be applied to hotels and other vacation rental facilities that are considered public accommodations.   As such, best practices would require hotels to follow the regulations as written.

It should also be noted that Plaintiffs’ attorneys will likely eventually sue regarding individual units that are rented by owners on a VRBO or Air BnB type platform.  Individual units are not exempt from the obligations set forth in subsections (i) and (ii).


Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

"Welcome to Palm Beach, Florida" Retro PosterOn Fox’s Tax Controversy Sentinel blog, partner Charles Bender recently examined a Florida case involving the state’s Homestead Exemption. The Exemption allows for a reduction in local real estate taxes and also provides that the homestead is exempt from claims of creditors of Florida residents. In the Circuit Court for Palm Beach County case Ramos v. Motamed, a creditor sought to enforce a judgment against a debtor by challenging his change of domicile to Florida and his use of the Exemption to protect his luxury condominium from creditors. Though the debtor took the usual official steps to establish residency in Florida, at trial the plaintiff presented a crucial exhibit to the contrary.

To read Charles’ full piece and learn the case’s outcome, please visit the Tax Controversy Sentinel blog.

Because of advancements in the use of digital technology in the administration of construction contracts, the 2017 AIA documents now default to the AIA’s Digital Data Use and Transmission protocol established in 2013 as set forth in the E203. Section 1.8 of the A201 now provides that the contractor’s reliance on BIM modeling will be at its “sole risk and without liability of any other party” unless the parties use AIA E203 and G202 BIM Modeling documents. Clearly, this provision allocates significant risk to the contractor. Contractors’ and their attorneys should consider modifying this language if the AIA digital transmission documents are not agreed to and utilized by the parties.

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W Mason is an partner with the law firm Fox Rothschild LLP. W practices in Fox Rothschild’s Litigation department in West Palm Beach, Florida. W is Board Certified in Construction Law by the Florida Bar Association. W focuses his practice on construction and commercial litigation throughout Florida. You can reach W at (561) 804-4432 or wmason@foxrothschild.com.