October 2015
Table of Contents
Located in both the heart of Long Island and on the East End, Campolo, Middleton & McCormick, LLP is a full-service law firm with the expertise and experience to represent clients with every legal need they may face. We have an established record of results for our clients, who range from individuals to global companies, and approach each matter with a unique understanding of the issues and the highest level of integrity.
The information contained in this newsletter is provided for informational purposes only, and should not be construed as legal advice on any subject matter. The Firm provides legal advice and other services only to persons or entities with which it has established an attorney-client relationship. No recipients of information from this newsletter, clients or otherwise, should act or refrain from acting on the basis of any information included in this newsletter without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this newsletter contains general information and may not reflect current legal developments. The Firm disclaims all liability in respect to actions taken or not taken based on any or all of the contents of this newsletter.
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CMM is on the Ballot Again for the Best of Long Island!
Voting has begun for the 2016 Bethpage Best of Long Island Awards and CMM and Joe Campolo are on the ballot again. We're in the running for BOLI's Best Law Firm and Best Lawyer on Long Island. We appreciate all your help in helping us win in 2015; please take a moment to vote again to  help us keep our title.  Vote Here
Court Rules Terminated Employee's Stock Options Did Not Vest Upon Termination; Complaint Dismissed
By Jeffrey Basso, Esq.
The Commercial Division in Monroe County, New York recently decided an interesting case, Kellman v. Document Security Systems, Inc. (Rosenbaum, J.), that dealt with a topic familiar to many employers: vesting of stock options to a terminated employee under an employment agreement.
Defendant Document Security Systems, Inc. ("DSS") develops, licenses, manufactures and sells anti-counterfeiting technology and products. Co-Defendant Secuprint, Inc. ("Secuprint") is a subsidiary of DSS which was created to acquire assets of another company, DPI of Rochester LLC ("DPI"), a printing company owned by Plaintiff, Matthew Kellman, and another individual.  When DPI's assets were acquired, Kellman was hired by DSS as Vice President of Sales.  In that role, Kellman received a salary as well as a grant of stock options for 50,000 restricted shares in DSS pursuant to an employment agreement (the "Employment Agreement").  Pursuant to the Employment Agreement, the restricted shares "shall vest" in equal yearly installments over a five-year period as long as Kellman was still an employee of DSS on each anniversary date.
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Making the First Offer in Negotiations: Should You or Shouldn't You?
Conventional wisdom cautions that dealmakers who make the first offer in a negotiation run the risk of showing their cards too soon, leaving their position and goals open to exploitation.  Proponents of the wait-it-out approach believe that hearing from the other side first gives you important clues about your adversary's position that you can use to steer the negotiation your way.  However, recent research suggests that the "anchoring effect" of the first number presented in a negotiation can play a major role in the direction the negotiation takes and can therefore give you a major advantage.  As explained in a recent article by Katie Shonk of the Harvard Law School Program on Negotiation, there's no one-size-fits-all approach to deciding whether to throw out the first number.  Rather, in deciding whether to offer it up or wait it out, you should consider your own knowledge of the "zone of possible agreement" ("ZOPA," which is the range of outcomes each side might agree to) and your assessment of your adversary's knowledge of the ZOPA. 
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To-Do List After Forming Your Business
In last month's blog article, I shared my enthusiasm for the "startup entrepreneurial ecosystem," specifically here on Long Island, and offered tips for starting your own successful business.  One of the most satisfying feelings in the world is making it official by forming an LLC or incorporating.  But then what?  To keep that excitement growing as you focus on building your business, it's important to take steps early in the process to help your new venture start off strong. 
Nellie Akalp, an contributor and entrepreneur and CEO herself, recently published an article on called "7 Actions to Take After Incorporating Your Business."  The article raises important topics to consider and delve into more deeply with the advice of your attorney and advisors.
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DWI - To Blow or Not to Blow?
Lately, it seems not a weekend goes by without another news story about a DWI crash into a house, or tragically, a fatality.  With such horrible trends continuing, law enforcement is sure to step up DWI prevention through checkpoints and aggressive policing. 
As a DWI defense attorney, I am always asked: "If I am arrested, should I blow or refuse?"  This seemingly simple question is actually rather complex.  Many factors affect whether taking the chemical breath test is a good or bad idea.  For example, there may have been an accident involving a fatality or serious injury; the driver may have a commercial driver's license who drives for a living; the person may have a prior DWI and thus will face a felony DWI charge; the local District Attorney's Office may have plea bargaining policies where no reduction is offered if a person refuses the test, or it may not offer reductions for readings above a certain level.  
Cleaning Up Contaminated Properties
Owners and would-be developers of property that contains environmental contamination face some tough choices: leave the contamination in place and hope that there is no government enforcement action or third party damage claim, clean it up on your own, or clean it up with government oversight.  For many years, the State of New York has had a program to encourage the latter course of action.  The incentive for those who participate in the State's Brownfield Cleanup Program ("BCP") is threefold.  First, at the end of the remediation, the applicant receives a Certificate of Completion, which indicates that the cleanup has been done to the satisfaction of the New York State Department of Environmental Conservation ("DEC"), thus opening the way to financing and redevelopment.  Second, the law grants certain limited liability protections so that the owner will not be sued by the State or private parties. Third, tax credits are available for some of the cleanup expenses.
"Happy Birthday to You" Lyrics May Not be Copyrighted
Most people sing "Happy Birthday to You" without even thinking it might be protected by copyright.  But since 1988, Warner/Chappell Music has been enforcing its alleged copyright in the song and has collected an estimated $2 million per year in royalties. 

However, on September 22, 2015, after two years of litigation, a U.S. District Court judge declared that the copyright claimed in the lyrics to the song "Happy Birthday to You" is invalid.

The lawsuit was brought by several artists against Warner/Chappell Music challenging the copyright and seeking the return of the licensing fees that have been collected.  
Medicare Providers: Don't Let Identity Theft Cost You Money!
Medicare providers face an alphabet soup of entities seeking to recover "overpayments" from them on behalf of Medicare.  Commonly referred to as Recovery Audit Contractors ("RACs"), these entities include Zone Program Integrity Contractors ("ZPICs"), and they have an aggressive mandate to recover Medicare "overpayments" to providers.
We recently represented a physician from whom a RAC sought $850,000 in overpayments for services billed to Medicare.  The liability arose because our client did not have any documentation to support the $850,000 in billed services.  However, our client did not have the supporting documentation because she never performed or billed the services!  It turns out that the client's prior employer stole her Medicare provider "identity" and billed the services for himself.  

Fiduciaries You May Not Want

In past articles I've spoken about how to appoint the proper fiduciaries (executors, trustees, guardians, etc.).  But what about those people that you don't want?
Most of my clients don't realize that you can "dis-appoint" someone in your documents.  You actually have the ability to add almost any language you want in your documents, whether it's in your Will or in your trust.  You can use strong language, such as that a specific person should not serve in any circumstances.  Or you can use weaker language, writing that you encourage the court to consider your other nominees, and not to consider the person you feel is undesirable. 

Why would someone want to do that?  Sometimes it's a fairly objective reason.  If your cousin takes his shoes off because he needs to use his fingers and toes to add larger numbers, he's probably not the guy to handle your estate or maintain a trust for your children.
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Marc Alessi
Turning his neighbors' overgrown yards into lucrative landscaping accounts at age 13, CMM attorney Marc Alessi probably wouldn't have been surprised back then to learn that in 2015, he would be honored as an Innovator of the Year by Innovate Long Island.  Marc's lifelong passion for entrepreneurship earned him an honor in the Biotech category for his work with SynchroPet, a biomedical device company he launched that has licensed three patents from Brookhaven National Lab for a new way to build P.E.T. (positron emission tomography) devices for both small animal and human medical imaging.  The inaugural Innovator Awards breakfast, which celebrated Long Island's "best and brightest ideas," was held on October 21 at Crest Hollow Country Club in Woodbury.
East End Executive Breakfast
If you are an East End business owner or professional, please join us for our East End Business to Business Executive Breakfast on October 29th at the Sea Star Ballroom in Riverhead. Together with Markowitz, Fenelon & Bank, LLP, we recognize the need for East End businesses to have a platform to meet other East End businesses, build relationships, share referrals, and learn something new. Our guest speaker is Rich Isaac of Sandler Training presenting "LinkedIn - A Business Relationship Tool" discussing how to use LinkedIn to increase sales and grow your business.
The breakfast is complimentary, but registration is required. Please RSVP to
Alessi Honored with Innovator of the Year
We would like to congratulate CMM's Marc Alessi on being awarded at the Innovator of the Year Awards, which recognizes Long Island's best and brightest ideas by Innovate Long Island. He was recognized for his work with SynchroPet - a biomedical device company he launched that has licensed three patents from Brookhaven National Lab for a new way to build P.E.T. (positron emission tomography) devices for both small animal and human medical imaging. 
Joe Campolo on HIA-LI CEO Perspective Panel
On November 10, 2015, HIA-LI will be hosting an executive breakfast entitled "A CEO's Perspective: What it Takes to Thrive in the Long Island Economy." Joe Campolo will moderate the panel of CEOs, who are recipients of the 2016 HIA Business Achievement Award, to discuss their success stories, philosophies, and trends in their respective industries. 
Merger & Acquisitions Breakfast Seminar
Join Protegrity Advisors on November 19, 2015 for a complimentary breakfast seminar, "When Is the Right Time to Sell Your Business?"  Exclusively for business owners and executives, the seminar features Gregg Schor, CEO of Protegrity Advisors, who will provide valuable insight on topics including:
  • How will potential buyers view your business?
  • Market activity: corporate/private equity buyers and trends
  • How much is enough?
  • Are you and your business ready for the process?
  • Family, employee, and customer considerations
November 19, 2015, 8:00 a.m. - 10:00 a.m.
Protegrity Advisors, 4175 Veterans Memorial Highway, Ronkonkoma.  Registration is required.  Please RSVP to
Ronald McDonald House of Long Island Comedy Night
On Thursday, October 22nd at 8:30 pm the Ronald McDonald House of Long Island will be hosting its Comedy Night Halloween Style at Governor's Comedy Clue of Levittown to benefit the organization. 

For 29 years, the Ronald McDonald House of Long Island has been providing a home away from home for families experiencing the pain of having a child in the hospital due to illness or accident. The proceeds from this event help raise the funds necessary to continue providing vital programs and services to the thousands of children and families who depend on them every year.

Campolo, Middleton & McCormick, LLP

4175 Veterans Memorial Highway, Suite 400
Ronkonkoma, New York 11779

2495 Montauk Highway
Bridgehampton, New York 11932

Phone: (631) 738-9100
Fax: (631) 738-0659