Editor: Please describe the practice areas of Proskauer’s Boca Raton office. Is most of the work local?
Triggs: What began more than 30 years ago as an office focused on personal planning work for high-net-worth clients has expanded into a full-service platform with significant litigation, employment, real estate, corporate, transactional and healthcare capabilities. It really is a best-of-both-worlds scenario. We have an established, vibrant practice here in Florida, with an excellent mix of both local and national clients.
Gold: I practice in both Florida and New York. Our securities litigation practice group has clients throughout the world, and the cases are staffed with lawyers from our different offices throughout the country, depending on the matter. Cases venued in the area have included defense of class actions, breach of fiduciary duty cases, and criminal and regulatory inquiries, investigations and actions. In the past five years in particular, we have handled many securities matters centered in Florida, so having a full-service Boca office is very important.
Editor: Matt, as head of Proskauer’s Florida litigation practice, where do you concentrate your litigation activity?
Triggs: We have quite a broad base of litigation experience, but our practice is primarily concentrated in three areas: probate and trust litigation, complex commercial litigation and securities litigation. We also have a fair blend of both state court and federal work, and we are comfortable in either setting. And being a firm of Proskauer's size, we have the added benefit of extraordinary bench strength, so for us, no matter is too large.
Editor: The office has recently won a victory for its client, the Keith Haring Foundation, a case involving intellectual property. Would you describe the background of the controversy?
Gold: Beginning around January 2013, the organizers of Haring Miami began to advertise a very large exhibition of Keith Haring art, which it advertised as one of the largest exhibitions of his art ever mounted, with a promise of 200 original Haring works of art to be displayed. However, the advertisements for the exhibition displayed fake works of art in the style of Keith Haring, but not by Keith Haring. Therefore, the Foundation’s general counsel sought information about the artwork to be displayed, and, while the information was repeatedly promised, it was never forthcoming. It was not until the opening of the exhibition that an expert in Keith Haring's art, who is also a board member of the Foundation, was able to inspect the works and confirm that almost none were actual Keith Haring works, but rather were fakes and frauds, which violated the intellectual property rights of the Foundation. Since the exhibition was only scheduled to be open for four days, we had to work through the night to present the federal court with a complaint, motion for emergency relief, and a brief with four affidavits. After filing, counsel for the exhibitors contacted us, and a consent order was negotiated and entered by the court, which required the removal of all but 10 works being displayed and the destruction of all copies of the exhibition catalogues. The case will continue with the copyright and trademark infringement claims.
Editor: What specific violations of intellectual property rights are involved in the case?
Gold: The Haring Foundation owns virtually all the intellectual property rights relating to Keith Haring. These rights include trademark registrations of his name, his signature and a variety of his most well-known figures for use in connection with numerous goods and services. In addition, the Haring Foundation owns the copyright registrations for a large amount of Haring's artwork. It is very important to protect these rights because the Foundation uses the Haring intellectual property to raise money for the charities that were important to Keith Haring, and putting such poor copies into the market devalues Haring's artwork to the serious detriment of the Foundation. In addition to the trademark and copyright infringement claims, the complaint has claims for false advertising and cybersquatting by virtue of the wrongful registration and use of the domain name used for the exhibition: "www.haringmiami.com."
Editor: Through the years, there appears to be a trend towards greater protection of the rights of personalities as well as works of art by the courts. Do you expect this trend to continue?
Gold: Over the past decade, the Internet and the ease with which it enables infringement has brought greater attention to the issues of intellectual property protection. The ease and proliferation of piracy and counterfeiting have also brought greater attention to these issues, so we are seeing more cases brought and more brought successfully. In cases where First Amendment issues are involved, unlike the current Haring case where those issues are not involved, we also see courts being extremely mindful of First Amendment issues and permissible parodies. Thus, although we do expect the trend of seriously protecting intellectual property rights and punishing infringers to continue, whenever a case involves potential First Amendment issues, there is no safe way to predict the outcome.
Editor: Litigation among trust beneficiaries, trustees, executives and others has been on the rise. To what do you attribute this change?
Triggs: My sense is that, certainly at least in Florida, it has been an established practice area for years. Given the significant wealth within our state and the family dynamics that sometimes come into play in probate disputes, I do not see any decrease in activity on the horizon. If there is an upswing, it could very well be due to the fact that there are more lawyers entering the field and simply more advertising reaching out to potential clients. That and, I'm sure, the recent change in estate tax laws have added to the visibility of the practice area.
Editor: Are there any Florida cases or legal trends that you are watching?
Triggs: Under the heading of complex commercial litigation, the Florida Supreme Court just came out with a game-changing decision regarding Florida's economic loss rule. The case, Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc., handed down in March of this year, held that the economic loss rule — a judicially created doctrine that sets forth the circumstances under which a tort action is prohibited if the only damages suffered are economic losses — is now expressly limited to products liability cases. The decision receded from a litany of cases that had applied the doctrine in other contexts, in what the Supreme Court described as an "unprincipled extension of the rule." The idea behind the doctrine was that it was thought best to prevent parties in contractual privity from circumventing the allocation of losses set forth in the parties' contract by bringing related tort actions. The long-term effect of the decision remains to be seen, but it is almost certain to expand the claims typically pled in what would otherwise be limited to a breach of contract case.
Editor: Aside from the sunny weather, what are the benefits of litigating in Florida, and how does it differ from what’s happening in the rest of the country?
Gold: South Florida sees a lot of securities fraud. So, while our securities litigation group handles matters worldwide, we have many civil, criminal and regulatory securities matters in Florida, and these are the types of matters that initially brought me to the region.
Triggs: We are fortunate to have an exceptional judiciary at both the state and federal levels. And, I'm pleased to see that there appears to be an emerging emphasis on civility — something that can be lost in the heat of battle. While we can and should be zealous advocates for our clients, that doesn't diminish the need for civility.
Published March 23, 2013.
