Sep
26

MIAMI, FLORIDA PERSONAL INJURY- TROY AND SCHWARTZ, LLC ATTORNEYS- 305-279-4740

UNDERSTANDING TOW TRUCK ACCIDENTS AND INJURIES

Most of us never think about a tow truck unless our car is broken down and we need to have it hauled to a repair shop.  Many drivers on the roadway are familiar with the “move over” rules which pertain to ambulances, fire trucks, and police vehicles, but many are unfamiliar with the fat that tow trucks are considered first responders and are extended the same courtesy.  Naturally, while we depend on a tow truck to assist us at the scene of an accident if our vehicle is damaged, what we forget about is that sometimes, tow trucks are the source of an accident.

Any type of vehicle may be involved in an accident as a result of negligent operation.  Tow trucks are no exception.  Tow truck drivers may not be paying attention to the traffic around them, could be operating under the influence of alcohol or prescription drugs, and may disobey traffic rules. The fact remains, tow truck drivers are not different than any other driver, and while they are first responders, they are still required to follow the rules of the road when not responding to an accident scene.  Anyone who is a victim of a tow truck accident can sustain serious injuries, primarily because tow trucks are typically much large than a passenger vehicle.

Tow truck maintenance is a serious concern, because these vehicles have several mechanisms which can result in another person being injured should they fail.  Mechanical failures can occur in the engine, in tow truck cables or hydraulic systems, or because of faulty brakes.  Regular inspection of the various parts of a tow truck is imperative to keep all drivers safe on Florida roadways.

Tow truck drivers must be properly trained to ensure they have properly secured disabled or junk vehicles on the tow truck. If the vehicle being towed has been attached incorrectly, the vehicle could come loose and cause an accident; which can lead to serious injury, or even death.  Another concern with tow trucks is their brake lights could be obstructed from view to other drivers when they are towing another car.

INJURIES SUSTAINED IN TOW TRUCK ACCIDENTS

The types of injury a victim of a tow truck accident may sustain depends largely on the reason for the accident.  Someone who is a victim of a tow truck accident because of brake failure can sustain serious back, head and neck injuries as well as have their car totaled.  The victim is not only facing the weight of a tow truck, but also of the vehicle being towed.  These types of injuries can cause victims to miss long periods of time from work, suffer debilitating pain, and may need repeated surgical procedures before they begin their recovery period.

STEPS TO TAKE AFTER TOW TRUCK ACCIDENTS

Seek medical attention after any type of an accident, especially after an accident involving a tow truck. The sheer size of the vehicle involved makes it unlikely you will escape the accident unscathed, even if you feel fine.

IF YOU, OR A LOVED ONE, HAS BEEN INVOLVED IN AN ACCIDENT ON FLORIDA ROADWAYS INVOLVING A TOW TRUCK, AN EXPERIENCED PERSONAL INJURY LAWYER CAN HELP ENSURE YOU KNOW YOUR RIGHTS AND WHAT TO EXPECT AFTER AN ACCIDENT.

TROY & SCHWARTZ, LLC

9415 SW 72nd Street, Suite 110

Miami, FL 33173

305-279-4740

We are standing by for your phone call!  305-279-4740.  or 1-800-559-4320

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Posted in Uncategorized on September 26,2019 02:09 PM

OTHER RECENT POSTS

Aug
16

Back to School Safety: Law Offices of Troy & Schwartz, LLC- MIAMI- LAW FIRM 305-279-4740

LAW OFFICE OF TROY & SCHWARTZ, LLC

For the citizens of Florida, school is back in session.  This means buses are back on the roads and students will be meeting and making new friends.  The start of a new school year is an exciting time, but with it comes an increased exposure to risks that are easily avoidable if approached properly.

SPEEDING IN A SCHOOL ZONE

In Florida, speeding fines vary by county, if you are caught speeding in a school zone, your fine will be doubled.

PASSING A SCHOOL BUS

Stopping for a school bus may seem like common sense.  According to the Florida Department of Highway Safety and Motor Vehicles, over 2300 people were ticketed in 2016 for ignoring school bus top signals.  Under Florida law, all drivers are required to come to a complete stop upon approaching any school bus which displays a stop signal.  The driver is required to remain stopped while the bus is stopped and may not begin moving until the stop signal has been completely withdrawn.  A driver who violates this law and passes the bus on the left side could receive a minimum fine of $165.00.

WHEN DO I HAVE TO STOP OF A SCHOOL BUS?

If you are behind or beside a school bus traveling in the same direction, it goes without saying that you must stop and follow the traffic rules.

IF YOU HAVE RECEIVED A TICKET FOR ANY REASON IN FLORIDA, PLEASE GIVE US A CALL FOR A FREE CONSULTATION.

1-800-559-4320- LAW OFFICES OF TROY & SCHWARTZ, LLC- OFFICES IN MIAMI

305-279-4740.  CALL US NOW!  WE ARE STANDING BY!

 

 

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Posted in Uncategorized on August 16,2019 01:08 PM
Jul
21

A REGISTERED TRADEMARK APPLICANT MUST BE THE OWNER OF THE MARK UNDER SECTION 5 OF THE LANHAM ACT.

On July 2, 2019, the Trademark Trial and Appeal Board (“TTAB”) sustained the opposition to the mark HOLLYWOOD HOTEL by finding that the mark was void ab initio because the Applicant was not the owner of the mark.   Hollywood Casino, LLC v. Chateau Celeste, Inc., Opposition No. 91203686.

An application is void if it is filed by a person or entity that is not the owner of the mark.  By definition, the owner of the mark is the one that controls the nature and quality of the goods and services under the mark.  This requirement is consistent with trademark law’s focus on preventing consumer confusion over who is providing the goods/services under the mark.

Here, the opposer had the burden to prove that the Applicant was not the owner at the time of filing of the opposed application.  HOLLYWOOD HOTEL was owned as a common law mark starting in 1994 by Zarco Hotels.   Applicant Chateau Celeste, Inc. filed the application for the HOLLYWOOD HOTEL mark in 2011.  The application was subsequently opposed by Hollywood Casino, LLC on likelihood of confusion grounds.  During the course of discovery, the opposer ascertained from the testimony of the Applicant’s president that Chateau Celeste was not the actual owner of the HOLLYWOOD HOTEL mark under the law.  The TTAB granted the opposer the right to amend the complaint to include a count that the mark was not registerable because the Applicant was not the true owner of the mark.

The opinion is instructive because it emphasizes the importance of ensuring that the applicant and the mark owner are one and the same.  First, as the Hollywood Casino decision establishes, an application filed by a non-owner is void from the start.  Second, even if the application somehow makes it through the registration process without an opposition proceeding, ownership issues may arise in any future trademark infringement litigation proceedings; it is the owner of the mark who generally has standing to bring such lawsuits.  Third, ownership issues may also arise in a later cancellation proceeding brought by another party before the TTAB.

The ownership in a mark, whether registered or common law, may pass to another through a formal assignment of rights.  The USPTO encourages recordation of “registered mark” assignments to establish a public chain of title.  Trademark assignments often arise when a business is purchased where registered or common law or state trademark rights are acquired as part of an asset purchase or stock purchase. Additionally, ownership may pass without a formal assignment if one company becomes the owner of mark by controlling its use by a related company, e.g., by a subsidiary.

Importantly, licensees are not the owners of trademarks.  Indeed, any licensor of trademarks has the obligation to ensure that the licensee is maintaining the nature and the quality of the goods and services associated with the licensed mark.

At the time the HOLLYWOOD HOTEL mark was filed, there were two separate companies in existence where one individual was an officer and controlling shareholder in both and both of the companies had the same address.  This is the same individual whose deposition resulted in the opposer’s amended complaint.   The TTAB deemed this commonality as being insufficient to make the companies related for ownership purposes under Section 5 of the Lanham Act.  The Applicant, Chateau Celeste, Inc., would have to establish that it, not the individual officer/shareholder, controlled the nature and quality of the services rendered by Zarco Hotels, the corporation actually using the mark.  Because Zarco Hotels and Chateau Celeste constituted separate legal entities and Zarco Hotels was the owner of the physical property itself, the TTAB concluded the application was filed by the wrong legal entity and hence void.

Take Home Points

  1. It is important to ensure that applicant in any trademark application is the owner of the mark – i.e., the one who is using or will be using the proposed mark in commerce.
  2. Assignments of marks should be memorialized in a formal writing. Assignments involving registered marks should be recorded with the USPTO.
  3. Assignment during the prosecution of a trademark application may be allowed but only under certain circumstances.
  4. Acquiring licensing rights in a trademark is not equal to ownership of the licensed mark.   A licensor has an on-going obligation to monitor the licensee’s usage of the mark.

 

THANK YOU FOR READING THIS BLOG.  PLEASE SHARE IT WITH ANYONE WHO MIGHT BENEFIT. AS ALWAYS, THE CONTENT IS NOT LEGAL ADVICE AND IS PRESENTED FOR INFORMATIONAL PURPOSES ONLY.

 

© Troy & Schwartz, LLC

Where Legal Meets Entrepreneurship™

 

 

 

 

 

 

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Jul
05

ANOTHER TRADEMARK APPLICATION BITES THE DUST BECAUSE OF UNACCEPTABLE SPECIMENS!

Imagine having a proposed mark meet the requirements for overcoming a finding of likelihood of confusion or mere descriptiveness only to have the mark rejected for registration as the result of insufficient specimens. As this post discusses, specimens can make or break a trademark application.

THANK YOU FOR READING THIS BLOG.  PLEASE SHARE IT WITH ANYONE WHO MIGHT BENEFIT.  AS ALWAYS, THE CONTENT IS NOT LEGAL ADVICE AND IS PRESENTED FOR INFORMATIONAL PURPOSES ONLY.

Perhaps no other area of trademark application prosecution is more misunderstood by applicants than the requirement that specimens must show use of the proposed mark with the applicant’s specified goods or services. The commentator, Susan D. Troy, who is in charge of the business and intellectual property law practice areas for the law firm, has previously posted blogs on this important topic. Today’s post relates to the Trademark Trial and Appeal Board’s (“Board”) recent affirmance of the refusal to register the mark THE CARDIO GROUP & Design for the Applicant’s failure to submit specimens reflective of the Applicant’s services.  In re The Cardio Group, LLC  (TTAB June 20, 2019) [precedential] (Application SN 86840860).

The application’s specified services under international class 35 were for “retail store services featuring medical devices.” The Board found that the Applicant is clearly engaged in selling products. Nevertheless, the inclusion of the words “retail services” suggests that the Applicant’s products were either being sold being sold in a brick-and-mortar location, on-line, or via catalogues. The Applicant, however, did not provide specimens showing how the mark was being used in the “retail services” arena. This commentator notes that maybe the original description of services incorrectly used the word retail.

In reaching its conclusion, the Board focused on “whether the evidence of Applicant’s use of its mark creates an association between the mark and the Applicant’s retail store services.” Importantly, the specimens must show a direct association between the mark and the service activity [or goods] and the source of the services [or goods]. To create such a “direct association,” the specimens must contain a reference to the service and identify the service and its source (generally the applicant which may be an entity or an individual).

Here, the Applicant submitted a website screenshot, a confidential sales agreement, and an invoice, all displaying the proposed mark. The website specimen merely presented the results of an analysis from a medical device and no information that the Applicant was making the device available for sale on-line, by personal sales calls, or otherwise. The invoice likewise did not refer to any activity that might be considered a retail store service. The commentator notes that invoices are generally not acceptable specimens for goods or services but can serve as a proof that the mark was in in commerce as of the invoice’s date. Additionally, why the Applicant, would have provided a confidential sales agreement as a specimen that becomes available to the public at www.USPTO.gov is indeed puzzling.

The Board concluded that the Applicant’s specimens of use were unacceptable because they failed to show the mark used in connection with the specified “retail services.” Although the Applicant is engaged in selling products, “nothing in the documents submitted by Applicant … refer to a retail store (of either on-line or brick-and-mortar variety) or create an association of any kind between THE CARDIO GROUP and design and a retail store service.”

In assessing the adequacy of specimens, the USPTO must consider any explanations offered by an applicant that “clarify the nature, content, or context of use of the specimen that are consistent with what the specimen itself shows.” See In re Pitney Bowes, Inc., 125 U.S.P.Q.2d 1417, 1420 (T.T.A.B. 2018); In re DSM Pharms., Inc., 87 U.S.P.Q.2d 1623, 1626 (T.T.A.B. 2008). Here, the Applicant stated that its services are in the nature of activities provided by a retail store – i.e., it is selling goods – and it argued that such activities do not have to take place in an actual retail store. The Board noted that retail stores services may be offered in various ways, including through physical locations, catalogs, or on-line, but the Applicant’s specimens did not suggest that any of these retail “avenues” were being used to make the medical device available in interstate commerce.

The Applicant also tried to amend its description of services to retail sales services, but the Board found that the proposed change simply restated that applicant’s specimens “reflect a product sale” and not that any retail store services were provided in selling the product. Considering all the specimens along with Applicant’s explanations, the Board found “no direct association in any of the specimens between THE CARDIO GROUP and design and any type of retail store service.” The Board emphasized that the specimens had to establish that the mark and design were a source indicator for retail services. Emphasis added. Nothing in provided specimens demonstrated to the Board’s satisfaction that consumers would perceive THE CARDIO GROUP and design as a source indicator for retail store services. “Ultimate consumers who choose to purchase Applicant’s products very well may understand they are engaging in a retail sales transaction with Applicant, but even if this is assumed, it would not establish that such consumers, prior to making their decision to make such a  purchase, were exposed to any advertising or promotion of Applicant as the operator of a retail store selling medical devices.”

In conclusion, specimens can make or break a trademark application. Don’t let this situation happen to you!

A Note to Trademark Applicants

Trademark applicants who become the clients of Troy & Schwartz, LLC will understand the requirements for specimens for 1A applications from the get-go. Attorney Susan Troy also works closely with clients for whom intent-to-use applications are filed to ensure that the subsequent specimens will comply with the USPTO’s requirements by keeping in contact with these clients to discuss the specimen creation progress.  For example, she reviews websites where screen shots are to be provided as specimens to ensure that they are presented in the manner required for “website page” specimens and will make suggestions to the website designer where changes are required in her opinion to comply with specimen requirements. This hands-on approach is an example of the added value of working with our firm to achieve your trademark registration and branding goals.  We are about providing value in all our attorney-client relationships.

© Troy & Schwartz, LLC

Where Legal Meets Entrepreneurship™

 

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Jun
03

Are Trademark Licenses Subject to Rescission Under the Bankruptcy Code? No According to the U.S. Supreme Court

Intellectual property law is not an island all to itself but can show up as an issue in many other areas of the law: securities law, contract law, employment law, family law, estate planning law, successions law, bankruptcy law, social media law, tax law, etc.  Indeed, in the May 20, 2019 decision by the U.S. Supreme Court in Mission Product Holdings, Inc. v. Tempnology, LLC, three areas of the law were actually involved: intellectual property law, bankruptcy law and contract law.  The Court held that a trademark licensing agreement does not become rescinded (i.e. terminated) upon the debtor’s rejection of the agreement under Section 365 of the Bankruptcy Code (“Code”).

This article summarizes the case’s background and the High Court’s reasoning. It ends with a discussion of the practical aspects of the decision for trademark licensors who declare bankruptcy.  It is the first in a series of planned articles on cases where intellectual property issues have overlapped with at least one other area of the law.

Note: Our firm is available to collaborate with lawyers who do not practice intellectual property law on a day-to-day basis and may need guidance on intellectual property issues arising in their own cases.

  • Background

Tempnology had granted Mission a non-exclusive license to use Tempnology’s registered Coolcore trademarks in the U.S. and around the world and to serve as Temnology’s exclusive distributor for certain Coolcore products in the U.S. Tempnology filed a petition under Chapter 11 Bankruptcy in September 2015, or about nine months before the agreement was set to expire.

The filing of the “reorganization” petition created a bankruptcy estate consisting of all of Tempnology’s assets and rights for use in paying off creditors’ claims based on creditors’ superior rights and the value of the available assets/rights. Bankruptcy estates are administered by either a trustee or the debtor.  In this case, the debtor (the trademark licensor) administered the estate.

Executory contracts include provisions that confer value/rights on the debtor and are therefore a possible estate asset. Such contracts generally represent both an asset (i.e., the receipt of a benefit resulting from the counterparty’s future performance) and a liability (the debtor’s own obligation to perform).  The Code provides that a “trustee [or debtor] subject to the court’s approval may assume or reject any executory contract.”  Slip opinion at 2 quoting §365(a) of the Code.

Intellectual property licensing agreements are executory contracts. Regarding the trademark licensing agreement between Temptology and Mission, the obvious benefit for Tempnology was the receipt of royalty payments from the sales made by Mission. Tempnology’s liability was its agreement that mission could use its registered trademarks for a specified period of time.  As the licensor of a federal registered trademark, Tempnology also had another obligation imposed by trademark law which will be discussed in Part 3.

In determining how to handle executory contracts, debtors will decide whether the negotiated contract terms are still a good deal for the estate in going forward. If so, the debtor will likely want to assume the contract to continue benefitting from it as well as continuing to fulfill its own obligations.  If not, the debtor will want to reject the contract, repudiating any further performance of its duties. Slip opinion at 2.

What happens when the court approves rejection of an executory contract by the debtor? The rejection constitutes a breach of the contract by the debtor. Now the counterpart has a claim against the estate for damages resulting from the debtor’s nonperformance and this breach is deemed to occur immediately before the date of the filing of the bankruptcy claim. Slip opinion at 3 citing §365(g)(1).

What’s the practical effect a debtor’s rejection of an executory contract? The counterparty is now categorized as an unsecured creditor along with the debtor’s other unsecured creditors; these creditors often receive peanuts for their claims against the estate.

Under the instant case, Tempnology could stop performing under the rejected contract. Mission could assert a pre-petition claim in damages resulting from Tempnology’s non-performance.

Maybe with an eye towards trying get a licensing agreement with more favorable terms with another party, Tempnology then sought a declaratory judgment from the Bankruptcy Court that its rejection of the trademark licensing agreement also terminated the rights it had granted to Mission to use the Coolcore trademarks.  In essence, Tempnology was seeking rescission/revocation of the licensing agreement.

Numerous appeals ensued. The High Court granted certiorari because of a conflict between the First and Seventh Circuits over whether or not a debtor-licensor’s rejection of a trademark licensing contract deprives the licensee of its rights to use the trademark until the rejected contract expired.

  1. The High Court’s Reasoning
  • Allowing Rescission of a Trademark Licensing Agreement Is Inconsistent with the Code’s Stringent Limits Designed to Prohibit a Debtor from Getting Out of Its Obligations

In finding for Mission, the Court was careful to emphasize the Bankruptcy Code’s stringent limits on “debtor avoidance of obligation” actions, in particular the Code’s prohibition on a debtor’s fraudulent conveyance(s) to deplete the estate (and so cheat creditors) on the eve bankruptcy. Slip opinion at 11 citing §§544-553.  The power to reject an executory contract, on the other hand, has no strict limitation and can be exercised for any plausible economic reason.  Absent “strange” circumstances, the bankruptcy courts generally give much deference to the debtor’s “rejection” choice under the “business judgment” rule.  Slip opinion at 3. “If trustees or debtors could use rejection to rescind previous granted interests, then rejection would become functionally equivalent to avoidance” contrary to the Code’s clear intent and language to cabin avoidances. Slip opinion at 12.

  • Breach by a Debtor-Licensor (or Licensee-Debtor) Does not Revoke a License Outside of the Bankruptcy Context

The Court emphasized that under contract law outside the context of bankruptcy law, a breach of the licensing agreement by a licensor does not revoke the license or stop the licensee from doing what it allows – i.e., using the licensed intellectual property. Slip opinion at 10.  This of course does not mean that the licensee will be able to effectively continue using the licensed intellectual property.  For example, if the licensor is supposed to provide goods bearing the registered trademark to the licensee and stops doing so, then the licensee will be effectively prevented from using the licensed trademark.   However, the licensee will have recourse in a court of law to address the licensor’s breach – where state law will generally apply.

The Court further emphasized that a bankruptcy estate cannot possess anything more that the debtor itself did prior to the bankruptcy; the debtor is not entitled to augmented rights. Slip opinion at 11. The Code’s articulated rejection-as-breach rule in lieu of Tempnology’s proposed rejection-by-rescission-rule ensures that the same counterparty rights (Mission’s rights) survive rejection as they would survive al allegation of breach in a non-bankruptcy proceeding prevents a debtor in bankruptcy (Tempnology) from recapturing interests it had given up. Slip opinion at 11.

  • Tempnology’s Negative Inference Argument Lacks Merit

Tempnology also argued that certain provisions under § 365 of the Code actually articulate certain situations where a counterparty “may retain specified contract rights notwithstanding rejection [by the debtor]. As the argument went, the Code does not intend that a rejection of any type of executory contract not specifically identified in the Code means that such “unmentioned”  rejected contracts are actually rescinded contracts.

Interestingly, §365(n) of the Code applies specifically to patent and copyright licensing agreements but not trademark licensing agreements. Congress enacted this section in response to the Fourth Circuit’s decision in Lubrizol Enterprises v. Richmond Metal Finishers, 756 F.2d 1043, 1045-1048 (1985) wherein the court had held that the debtor’s rejection of the patent licensing agreement worked to revoke its grant of a patent license.   Section 365(n) corrected the perception that “Section 365 was ever intended to be a mechanism for stripping an innocent licensee[s] or rights.” Slip opinion at 14.   As Temptology’s argument went, absent a specific limitation within the Code stating that the rejection of a particular type of executory contract is to be construed only as a breach of the contract by the debtor, a debtor’s rejection means rescission or revocation of the contract.  Because the Code does not specifically address trademark licensing agreements, Temptology’s rejection licensing agreement must therefore a treated as a rescinded agreement wherein neither party has any further obligations. Slip opinion at 14. See also Justice Sotomayer’s concurring opinion, pg. 2 (also stating that under §365(n), “a covered licensee that chooses to retain its rights post rejection must make all of its royalty payments; the licensee has no right to deduct damages from its payments even if it otherwise could have done so under nonbankruptcy law [i.e. state contract law]. This provision . . .  means that the covered intellectual property types are covered by different rules than trademark licenses.”

The High Court gave short shrift to Tempnology’s round-about argument, noting that Congress has enacted specific provisions to the Code at different times over a period of fifty years more often than not to “correct a judicial ruling of just the type Tempnology urges.” Slip opinion at 13.  In other words, the legislative record shows that Congress has expressed its disapproval by amending § 365 whenever a court has terminated all contractual rights for executory contracts subject to a bankruptcy proceeding.  Tempnology was asking the Court to make a ruling contrary § 365’s long legislative history.

  • Unique Aspects of Trademark Licenses

The strongest argument Temptology offered in the commentator’s opinion as that trademark law imposes a duty on trademark licensor to exercise quality control over the goods and services sold under the terms of a license.  The public policy behind this requirement is that trademark law’s focus is the consumer.  The registered trademark owner (licensor) is in charge of ensuring that the quality/characteristics the consumer has come to associate with a good/service are consistently present.

What is the trademark licensor/debtor to do during a bankruptcy proceeding?  Temptology argued that “unless rejection of a trademark licensing agreement terminates the licensee’s rights to use the mark, the debtor will have to choose between expending scarce valuable resources on quality control and risking the loss of a valuable asset,” thereby impeding a [debtor’s] ability to reorganize inconsistent with a fundamental tenant of the Code.  Slip opinion at 15.

The High Court was unwilling to use the unique requirements of trademark licensing to adopt Temptology’s construction § 365 that will govern not just trademark licensing agreements but pretty nearly every executory contract.  In essence, Bankruptcy law is intended to balance the legitimate interests and expectation of the debtor’s counterparties which is inconsistent with granting debtors a right, through rejection of an executory contract, to escape all of its future contract obligations. Slip opinion at 15.

  1. Practical Considerations

Trademark Licensors should have a clearly articulated/implemented approach for monitoring the quality of all goods/services sold under its registered marks by a licensee from the get- go.  This approach should include maintaining records showing the monies spent on monitoring its licensees and the actual steps taken by the licensor.  Such information could sometime be invaluable to a bankruptcy trustee/debtor in allocating reasonable funds to continue overseeing a licensee’s goods/services until the licensing agreement terminates according to the agreement’s specified date.

THE FOREGOING IS NOT LEGAL ADVICE NOR SHOULD YOU CONSIDER IT AS SUCH. IT IS FOR INFORMATIONAL PURPOSES ONLY. YOU SHOULD CONSIDER CONSULTING WITH AN ATTORNEY IF YOU ARE CONTEMPLATING AN ACTION WHICH MAY HAVE LEGAL CONSEQUENCES.

 

© Troy & Schwartz, LLC 2019

Where Legal Meets Entrepreneurship™

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Posted in Uncategorized on June 03,2019 11:06 AM