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Since its inception, Coleman & Horowitt, LLP has focused its practice to provide a full range of services to businesses and their owners.

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Coleman & Horowitt, LLP believes it’s not enough to merely provide exceptional service and advice to our clients. We also have a duty to serve the community.

  • Latest In The News

    Update Your Conservator Nomination Regularly

    By Jared R. Clemence Read and download the article HERE. Increase the chance that the Court will select your nominated Conservator by updating your estate plan regularly. In May 2022, the client came to me with what appeared to be a solid case. (We shall call the client “Norma.”) Norma’s mother nominated her as the preferred Conservator in 2002. Mom’s estate plan was iron-clad. And, all the children agree that mom had full capacity and strong willpower in 2002, so questions of undue influence and legitimacy were off the table. But things did not go as expected! Rules about Conservator Nomination Proposed Conservatees may nominate their conservators. (Prob. Code, § 1810.) They must make the nomination either with the petition for conservatorship or in writing before that petition. (Prob. Code, § 1810.) For this reason, most estate plans that many lawyers create include a section nominating the Conservator. Why people would want to nominate a conservator is simple. A small portion of our population will develop dementia. It is an exception rather than the rule, but it is possible! You can leave the person in control of your care up to chance or pick who is in charge. Most people prefer to choose who should be in charge in the unlikely event that their mental health fails. The Unexpected Exception to Rules on Conservator Nomination What most people don’t know, and what most lawyers forget to discuss, is that Probate Code section 1810 also gives the court discretion to ignore the conservatee’s nomination: “The court shall appoint the nominee of the conservator unless the court finds that the appointment of the nominee is not in the best interest of the proposed conservatee.” (Italics added.) How this Impacted Norma’s Mom Both Norma and her brother filed petitions for conservatorship. Mom’s health declined quickly. Dementia set in in 2016. Mom started hallucinating. She’d see insects crawling over the walls and imaginary people rummaging through her closets. Mom also began suspecting “ghosts” of stealing her personal belongings. The doctors also diagnosed Mom with Alzheimer’s Disease. In 2018, Norma’s brother kidnapped Mom and started conservatorship proceedings. In response, Norma filed a petition for conservatorship as well. She had the 2002 Estate Plan, which nominated her, and she was confident that the Court would support her application. In addition to being chosen as the preferred Conservator, Norma also had more than 30 years of professional experience as a Licensed Vocational Nurse, which she specifically used in the care of elderly persons in situations like her mother. She also had an annual income of over $100,000, which meant that she had additional financial resources to provide support. These facts made her a superior candidate. However, the Court cited “the best interest of the proposed conservatee” when it broke from the Estate Plan and surprised all present with its ruling for the brother. Why the Court Decided Against Norma even though she was a Nominated Conservator. The Court found that Mom had full capacity in 2002, but almost 20 years had passed since Mom created that document. Because nearly two decades had passed, the Court found that “too much has changed,” which was sufficient reason for the Court to disregard the Estate Plan. Norma still had a more robust application because of her qualifications, but she and her brother differed on one key issue: whether or not to pursue a civil case that Mom started in 2018. Norma believed that the case was frivolous due to Mom’s dementia. Her brother thought the Conservator should try the case on its merits regardless of whether Mom started it while delusional. The Court decided that it was in the best interest of the proposed conservatee to move forward with the civil case, even if the case had no merit.[1] Because of this difference in opinion on the active civil case, Norma lost the Conservatorship petition. The Court appointed her brother as Conservator of the Estate and Conservator of the Person. Norma’s mom is now being cared for by a truck driver who has limited financial resources and limited valuable skills that would be useful in caring for an older woman with Alzheimer’s Disease. Things might have been better for Norma’s Mom if Norma’s Mom had done one thing differently. What Norma’s Mom could have done to Ensure Better Care Before throwing out the nomination, the Court first found that the 2002 Estate Plan was “too old” and that “too many events have transpired since 2002,” which might change Mom’s decision. Mom could have made her election more solid by updating her estate plan every five years, as most attorneys recommend. If Mom had updated her estate plan regularly, the Court would have had a nomination within the past five years. The Court could not have found that “too much time had passed.” It is important to remember that the Court still retains complete discretion concerning the nomination of a conservator. However, having a more recent nomination would have made deviating from the Estate Plan more difficult for the Court. [1] In finding that the civil case ought to be tried on the merits, the Court was not lending support for the civil case. The Probate Court expressly withheld judgment or opinion on the merits of that case, but added that the Probate Court is not the place for such decisions and that the Civil Court was the best place to make those arguments. Because the Probate Court could not weigh in on the case merits, it chose to err on the side of caution by choosing the Conservator who would allow those arguments to be made. Contact: The Estate Planning, Probate, and Tax Group advises individuals and employers of all sizes on laws that impact their interest and represents them in any disputes that arise. If you have any questions regarding this article, contact Jared Clemence, at (559) 248-4820 or jclemence@ch-law.com. © Coleman & Horowitt, LLP, 2022 About the Firm: Established in 1994, Coleman & Horowitt is a state-wide law firm focused on delivering responsive and value driven service and preventive law. The firm represents businesses and their owners in matters involving transactions, litigation, agriculture and environmental regulation and litigation, intellectual property, real estate, estate planning and probate. The Firm has been recognized as a “Top Law Firm” (Martindale Hubbell) and a “Go-To” Law Firm (Corporate Counsel). From six offices in California, and the Firm’s membership in Primerus, a national and international society of highly rated law firms (www.primerus.com), the Firm has helped individuals and businesses solve their most difficult legal problems. For more information, see www.ch-law.com and www.Primerus.com. Disclaimer: This article is intended to provide the reader with general information regarding current legal issues. It is not to be construed as specific legal advice or as a substitute for the need to seek competent legal advice on specific legal matters. This publication is not meant to serve as a solicitation of business. To the extent that this may be considered as advertising, then it is expressly identified as such. Living Trust, Family Trust, Estate Planning

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    CALSAVERS: A NEW KIND OF RETIREMENT SAVINGS PLAN FOR CALIFORNIA OH, AND IT’S MANDATORY

    Read and download the article HERE.  CALSAVERS: A NEW KIND OF RETIREMENT SAVINGS PLAN FOR CALIFORNIA OH, AND IT’S MANDATORY By the Firm’s Labor & Employment Group To assist the 7 million-plus California employees whose employers have not established a retirement savings plan, the state has launched CalSavers, a mandatory statewide retirement savings program. Oregon and Illinois have already established similar plans. CalSavers is being phased in with a series of deadlines for enrollment based on company size with the final deadline, for companies with between 5 and 50 employees, June 30. What is CalSavers? In response to a lack of retirement savings, CalSavers ensures that nearly all working Californians can make easy, consistent payroll contributions. It offers limited simple investment options, including default settings designed to promote long-term savings. The program is intended to deliver progressively lower administrative fees over time, as economies of scale take effect. Who Should Register for CalSavers? Both nonprofit and for-profit employers are required to register for CalSavers if they have at least five California-based employees and don’t sponsor at least one of these qualified retirement plans: 401(a) – Qualified Plan (including profit-sharing plans and defined benefit plans) 401(k) plans (including multiple employer plans or pooled employer plans) 403(a) – Qualified Annuity Plan or 403(b) Tax-Sheltered Annuity Plan 408(k) – Simplified Employee Pension (SEP) plans 408(p) – Savings Incentive Match Plan for Employees of Small Employers (SIMPLE) IRA Plan Payroll deduction IRAs with automatic enrollment Employers offering one of these qualified plans will, however, still be required to register, but can indicate their exempt status and opt out of CalSavers. Penalties for Not Registering for CalSavers There are significant penalties for employer noncompliance – absent good cause, they’re penalized $250 per eligible employee for the first 90 days after receiving notice of their failure to comply. The penalty rises to $500 per eligible employee if they’re not in compliance 180 days after receiving notice. Registering for CalSavers CalSavers is designed to be simple, straightforward, and require as little administrative cost or involvement from employers as possible. Employers cannot contribute to employee accounts, provide investment guidance, or encourage or discourage participation in the program. Employers are also not charged any maintenance fees. They are also not responsible for providing information about the program, processing distributions, or administering employee accounts. State law also protects employers from liability for employee participation in the program, including investment decisions and results. Employers are responsible for registering for CalSavers, and providing basic information for eligible employees, including name, date of birth, Social Security Number or ITIN, and contact information, and handling payroll deductions for contributions with each paycheck. They are also permitted to delegate employee facilitation to a payroll service. Special regulations cover certain categories of multiparty employers. For employers who use temporary services or a leasing employer, the temporary services/leasing employer is the eligible employer. Employers who contract with a professional employer organization (PEO) are the eligible employer, not the PEO. And for a motion picture production company that uses a motion picture payroll services company, the production company is the eligible employer. What Happens After Registration? Once employee information is provided, CalSavers will contact employees directly to provide information on how the program works, opening an account, or opting out. However, it’s important to note that enrollment is the default outcome. If an employee does nothing within 30 days of being contacted by CalSavers, they are automatically enrolled with default saving settings. If they want to make changes or opt out, they must contact CalSavers. CalSavers offers materials and sample emails for employers to inform employees about the program. This material is optional, but employers are not permitted to take a position on the program when discussing it with employees. In other words, an employer cannot attempt to convince employees not to sign up, hoping to save the company money. Once an employee is registered in CalSavers, the employer is responsible for deducting and remitting their contributions each pay period. Employers are also responsible for adding new eligible employees to the program within 30 days of their date of hire or eligibility. What are the Eligibility Requirements? Eligibility requirements are minimal. Employees must be at least eighteen, with a bank account, and are eligible to participate from the first day they’re hired. There are no requirements for hours worked or tenure with their employer. For 2022, the contribution limit is $6,000 for employees under the age of 50. For employees over 50, it’s $7,000. Who Is Responsible for Tracking the Amounts Contributed? Employees are also responsible for tracking their own annual contribution limits across all the Individual Retirement Accounts (IRA) they maintain, including CalSavers account. CalSavers will notify employees when their account is close to reaching the federal annual contribution limits for an IRA and will tell employers to end contributions when the limit is reached. However, CalSavers can’t track additional retirement plans and won’t factor those into this calculation. Conclusion Many employers are reluctant to create a qualified retirement program for their employees and some employees are not comfortable saving through such a program because they need every dollar. Unfortunately, social security is not enough so CalSavers will help those employers who cannot afford their own program and employees who need to save for their own retirement because Uncle Sam may not pay enough to retire comfortably. It is thus important for all employers to comply with these new requirements. The Labor and Employment Practice Group advises employers of all sizes on laws that impact their business and represents them in disputes arising from the employer/employee relationship. If you have any questions regarding this article, contact Greg Norys, head of the Labor and Employment Practice Group, at (559) 248-4820 or gnorys@ch-law.com. About the Firm: Established in 1994, Coleman & Horowitt is a state-wide law firm focused on delivering responsive and value driven service and preventive law. The firm represents businesses and their owners in matters involving transactions, litigation, agriculture and environmental regulation and litigation, intellectual property, real estate, estate planning and probate. The Firm has been recognized as a “Top Law Firm” (Martindale Hubbell) and a “Go-To” Law Firm (Corporate Counsel). From six offices in California, and the Firm’s membership in Primerus, a national and international society of highly rated law firms (www.primerus.com), the Firm has helped individuals and businesses solve their most difficult legal problems. For more information, see www.ch-law.com and www.Primerus.com. Disclaimer: This article is intended to provide the reader with general information regarding current legal issues. It is not to be construed as specific legal advice or as a substitute for the need to seek competent legal advice on specific legal matters. This publication is not meant to serve as a solicitation of business. To the extent that this may be considered as advertising, then it is expressly identified as such. CalSavors Fresno, Bakersfield

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  • Latest In The News

    The New Year Brings with it New Changes to Labor and Employment Laws that Employers Need to Know

    Read and download the article HERE THE NEW YEAR BRINGS WITH IT NEW CHANGES TO LABOR AND EMPLOYMENT LAWS THAT EMPLOYERS NEED TO KNOW By Steven C. Clark The California Legislature and Governor Gavin Newsom have been busy this past year passing legislation which will directly affect California employers and employees. Below are some of the new laws that became effective January 1, 2022 (unless otherwise specified), which change or modify California’s labor and employment landscape.  AB 1003: Wage Theft Can Be Grand Theft. Current law makes the violation of specific wage and gratuity provisions a misdemeanor in addition to providing for civil penalties and remedies. However, Assembly Bill 1003 now amends the definition of “grand theft” in the Penal Code to include intentional wage theft, punishable either as a misdemeanor or a felony. The new law provides that grand theft includes: • the intentional theft of wages in an amount greater than $950 from any one employee, or • $2,350 in the aggregate from two or more employees, • by an employer in any consecutive 12-month period, • for purposes of the new law, independent contractors are considered employees. AB 1033: The California Family Rights Act (CFRA) now applies to Parent-in-Laws. Current law makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 work weeks of unpaid protected leave during any 12-month period for family care and medical leave. It defines family care and medical leave to include, among other things, leave to care for a parent. AB 1033 will amend the California Family Rights Act to include protection for employees caring for a parent-in-law. AB 1023: Requirement for Public Works Contractors to Furnish Pay Records and Penalties for Failure. AB 1023 revises the requirement that contractors or subcontractors working on public works projects provide certain payroll records to the labor commissioner and requires: • that contractors are required to furnish records, in electronic format, every 30 days while work is being performed on the project, and • within 30 days after the final day of work, and • a failure to provide the records results in a penalty of $100 per day, not to exceed $5,000 per project. SB 62: Prohibits Garment Manufacturers from Paying Employees at Piece Rate. Senate Bill 62 provides for amendment of the Labor Code to prohibit, with certain noted exceptions, employers from paying employees engaged in garment manufacturing by the piece or unit, or by the piece rate. This bill also provides that anyone who contracts for the manufacture of garments is a guarantor for the unpaid wages and overtime of the workers making their garments, regardless of how many layers of contracting the person may use. This is intended to prevent someone from escaping liability by contracting with someone else, who in turn hires a subcontractor to perform the manufacturing operations. SB 606: OSHA’s Enforcement Powers are expanded. SB 606 expands OSHA’s enforcement authority by creating new violation categories: “enterprise-wide” and “egregious” violations. Further, it also establishes a rebuttable presumption that a violation committed by an employer that has multiple worksites is considered to be enterprise-wide if the employer has a written policy or procedure that violates OSHA’s provisions. AB 654 (Effective October 5, 2021): Employee COVID-19 Exposure Notification. AB 654 amends existing law requiring employers to provide notification to employees who may have been in close contact at work with a person infected with COVID-19 by expanding some of the type of employers which are exempt from the requirement. SB 807: Extension of Employer Record Retention Requirement to Four Years. SB 807 makes procedural changes to the Department of Fair Employment and Housing’s enforcement procedures. For employers, it extends the file-retention requirement from two years to four years for specified employment-related records, including applications and personnel files. There are separate retention requirements which apply when a complaint has been filed with the DFEH. SB 807 also tolls the deadline for the DFEH to file a civil action pursuant to the FEHA while a mandatory or voluntary dispute resolution is pending. As might be expected, more laws were enacted than set forth above, which we believe were those most likely to affect our clients. If you have any questions regarding any of the above new laws, or any other question regarding labor and employment laws affecting your business, call Gregory J. Norys or Steven C. Clark in our labor and employment department at (559) 248-4820 or (800) 891-8362 or by e-mail to gnorys@ch-law.com or sclark@ch-law.com. The author, Steven C. Clark, is a seasoned trial lawyer who represents businesses and their owners in a wide variety of litigation including business, professional liability, casualty claims, labor and employment, construction and real estate. He has handled numerous court and jury trials, binding arbitrations and mediations. He is a member of the Fresno County Bar and Association of Business Trial Lawyers. He can be reached at (559) 248-4820 or (800) 891-8362 or by e-mail to sclark@ch-law.com. © Coleman & Horowitt, LLP, 2022 About the Firm: Established in 1994, Coleman & Horowitt is a state-wide law firm focused on delivering responsive and value driven service and preventive law. The firm represents businesses and their owners in matters involving transactions, litigation, agriculture & environmental regulation and litigation, intellectual property, real estate, estate planning and probate. The Firm has been recognized as a “Top Law Firm” (Martindale Hubbell) and a “Go-To” Law Firm (Corporate Counsel). From six offices in California, and the Firm’s membership in Primerus, a national and international society of highly rated law firms (www.primerus.com), the Firm has helped individuals and businesses solve their most difficult legal problems. For more information, see www.ch-law.com and www.Primerus.com. Disclaimer: This article is intended to provide the reader with general information regarding current legal issues. It is not to be construed as specific legal advice or as a substitute for the need to seek competent legal advice on specific legal matters. This publication is not meant to serve as a solicitation of business. To the extent that this may be considered as advertising, then it is expressly identified as such.

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    WHY YOU SHOULD NOT REFILE A PROVISIONAL PATENT APPLICATION

    Read and download the article HERE WHY YOU SHOULD NOT REFILE A PROVISIONAL PATENT APPLICATION By Bryan C. Gusman When applying for a patent, a provisional application essentially saves an applicant’s spot in line for examination for one year at a lower cost than a non-provisional. The applicant may then either file a non-provisional or refile a provisional application. Although filing a provisional may be tempting due to the lower cost than filing a non-provisional, the applicant runs the risk their application is rejected due to a previously made public disclosure. Under the USPTO’s first to file system, the most important date is the date of filing. By choosing to refile a provisional, the applicant has effectively moved their date of filing and, as a consequence, exposed their application to a host of problems. First, the applicant cannot save their same spot in line twice with the USPTO. Upon refiling a provisional application, the applicant cannot claim priority to a previously filed provisional. Consequently, the refiled provisional has moved the effective filing date to the date of the refiled provisional. Second, prior art before the filing date of the second application can be used against the applicant. Prior art refers to publications or public disclosures that occurred before the effective filing date of the application and which an examiner may cite against a patent application for an invention. Finally, the filing date may fall outside of the grace period for either a public disclosure or a publication. The grace period allows applicants to prevent their own publications or disclosures from being cited against their application for one year from the date the public disclosure is made if the applicant files their application during that year.  For example, if an inventor filed a provisional on July 29, 2021, but published a paper on March 9, 2021, disclosing subject matter of the applied for invention, the grace period is triggered as of the date the paper is published, which would end on March 9, 2022. Thus, if the applicant later refiles a provisional on July 29, 2022, the filing date would fall outside of the grace period as the grace period ends on March 9, 2022. Consequently, an examiner could cite it against the inventor’s patent application. In another example, if an inventor files a provisional on July 29, 2021, but spoke at a public seminar regarding the invention on December 7, 2021, the grace period is triggered, which would end on December 7, 2022. If the applicant refiles a provisional on July 29, 2022, the filing would fall inside the grace period, as it ends after the date of filing.  Although filing a subsequent provisional application is not recommended, it is possible, but the applicant runs the risk that the grace period for their public disclosures will end before the subsequent provisional is filed. If you are interested in filing an application for a patent and are concerned about a disclosure affecting your application, you should seek the advice of a registered patent attorney. The author, Bryan C. Gusman, a registered patent attorney, is an associate who works in the intellectual property practice group where he provides representation to clients in prosecution of and enforcement of patent applications, filing, maintenance and enforcement of copyright and trademark applications. Bryan works primarily out of the Firm’s Fresno office but is available state-wide.  He received a B.S. in manufacturing engineering from California Polytechnic University, Pomona and his law degree from Southwestern School of Law in Los Angeles.  Bryan is a member of the Fresno Bar Association, Los Angeles Intellectual Property Law Association and the American Intellectual Property Law Association.  Bryan can be reached at (559) 248-4820 or (800) 891-8362 or by e-mail to bgusman@ch-law.com. © Coleman & Horowitt, LLP, 2022 About the Firm: Established in 1994, Coleman & Horowitt is a state-wide law firm focused on delivering responsive and value driven service and preventive law. The firm represents businesses and their owners in matters involving transactions, litigation, agriculture & environmental regulation and litigation, intellectual property, real estate, estate planning and probate. The Firm has been recognized as a “Top Law Firm” (Martindale Hubbell) and a “Go-To” Law Firm (Corporate Counsel). From six offices in California, and the Firm’s membership in Primerus, a national and international society of highly rated law firms (www.primerus.com), the Firm has helped individuals and businesses solve their most difficult legal problems. For more information, see www.ch-law.com and www.Primerus.com. Disclaimer: This article is intended to provide the reader with general information regarding current legal issues.  It is not to be construed as specific legal advice or as a substitute for the need to seek competent legal advice on specific legal matters.  This publication is not meant to serve as a solicitation of business.  To the extent that this may be considered as advertising, then it is expressly identified as such.

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    Coleman & Horowitt Attorney, Russ Reynolds, Secures Victory Before the Ninth Circuit Court of Appeals

    Read & Download the story here In a recent decision, In re Hutchinson, ___ F.3rd ___, 2021 DJDAR 10838 (9th Cir. 2021), the Court affirmed the Bankruptcy Court and the Ninth Circuit BAP holding that a debtor may not attempt to avoid a penalty portion of a tax lien if a trustee takes action to do so, and if the trustee is successful, the value of the avoided lien is recovered for the benefit of the estate, not the debtor. In the action, Leonard and Sonya Hutchinson, who were homeowners, failed to pay taxes. The IRS filed liens for the unpaid taxes. The liens included taxes, interest, and penalties. The Hutchinsons filed bankruptcy claiming a homestead exemption on their home. Following the meeting of creditors, the trustee filed an application to employ counsel. The debtors then filed an adversary proceeding against the IRS and trustee to avoid the penalty portion of the tax liens under 11 USC § 522(h). The trustee filed a cross-claim against the IRS to avoid the same liens under section 724(a) and answered the complaint of the debtors claiming the trustee had the superior right to avoid the liens. The IRS filed a motion to dismiss the debtors’ complaint. The debtors argued that even if their claim to avoid the lien was dismissed, they should remain a party to the action so they might recover the value of the avoided lien for their benefit under section 522(g)(1). The Bankruptcy Court dismissed the debtors’ claim and the estate would be entitled to the value of any avoided lien. The Hutchinsons appealed. Bankruptcy cases can be appealed to the district court or to a bankruptcy appellate panel in the circuit where the bankruptcy court sits. The Bankruptcy Appellate Panel for the Ninth Circuit affirmed the holding of the bankruptcy court. The Hutchinsons then appealed to the Ninth Circuit Court of Appeals. In upholding the lower court decisions, the Ninth Circuit held that the debtors could not avoid the penalty portion of the tax liens under 522(h) because the trustee took action under 724(a) and the debtors were not able to exempt the property under 522(b). Further, under the plain language of section 551, a transfer avoided by the trustee under section 724(a) is preserved for the benefit of the estate. Few lawyers get to argue before the 9th Circuit. Even fewer are successful in a published decision. Well done, Russ. The Collections and Creditor Rights group at Coleman & Horowitt, LLP represents creditors in collection of commercial and retail trade debt, secured and unsecured obligations and representation of creditors, trustees, and creditor committees in bankruptcy matters, including REPRESENTING BUSINESSES AND THEIR OWNERS WWW-CH-LAW.COM bankruptcy appeals. For more information, contact Russell W. Reynolds or Darryl J. Horowitt at (559) 248-4820 or by e-mail at rreynolds@ch-law.com or dhorowitt@ch-law.com. About the Firm: Established in 1994, Coleman & Horowitt is a state-wide law firm focused on delivering responsive and value driven service and preventive law. The firm represents businesses and their owners in matters involving transactions, litigation, agriculture and environmental regulation and litigation, intellectual property, real estate, estate planning and probate. The Firm has been recognized as a “Top Law Firm” (Martindale Hubbell) and a “Go-To” Law Firm (Corporate Counsel). From six offices in California, and the Firm’s membership in Primerus, a national and international society of highly rated law firms (www.primerus.com), the Firm has helped individuals and businesses solve their most difficult legal problems. For more information, see www.ch-law.com and www.Primerus.com. Disclaimer: This article is intended to provide the reader with general information regarding current legal issues. It is not to be construed as specific legal advice or as a substitute for the need to seek competent legal advice on specific legal matters. This publication is not meant to serve as a solicitation of business. To the extent that this may be considered as advertising, then it is expressly identified as such.

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Coleman & Horowitt, LLP was established in 1994 by William H. Coleman and Darryl J. Horowitt.

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