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Newsletter March 3, 2015

Appearing in Court --

Although corporations must appear by counsel in Florida circuit and county courts (as well as federal court), it still helps for corporations/llc's doing business in Florida to have some understanding of how civil law works in Florida. A corporation can appear pro se, by an officer, in small claims court. Small claims allows actions up to $5,000. Small claims is for cases involving money and many types of actions can't be brought in small claims court, such as defamation and other intentional torts. The following are general outlines and these issues can be very complicated and require highly competent attorneys to deal with them in a court of law.

Florida Accepts Daubert --

No, not the comic strip. The federal courts created a standard for admissibility of expert witness testimony, called the daubert standard. Expert witnesses are used in product liability, medical malpractice, complicated fraud, cases involving accident injury damages and similar cases. There has been an argument among lawyers and experts for a number of years whether Florida should adopt the standard. The Florida Legislature answered that question recently by adopting daubert. This is good for defendants and bad for plaintiffs. It will help to make bad cases go away and will make civil actions requiring expert testimoney more expensive for the plaintiff and time consuming. This law is considered good for business and Florida is a generally business friendly state.

Offers In Settlement --

The common law in Florida is that each party pays their own attorney fees and costs. There are specific actions where the statute allows the winner attorney fees, but generally the loser does not pay the winner's fees and costs. There are two major exceptions to that, the most significant Florida Offer in Settlement Statute, Statute 768.79. The statute is punitive and in derogation of common law, thus there are very specific rules in making these offers, so an attorney must really be careful in writing it.

Either party, defendant or plaintiff, can make an offer in settlement. Although minimal offers have been upheld ($1.00, $100.00), I would recommend against that. Make a reasonable offer so that you're not wasting time and money defending a minimal offer as it will be challenged as being in bad faith. If you win a final judgment before trial, then the other side pays your attorney fees and costs regardless of the amount of the offer. It can work the other way around too. If the case goes to trial, the other party must obtain a jury award at least 25 percent greater than your offer. If not, the winner can actually end up paying the attorney fees of the loser of the case. I have read numerous cases where the jury award was actually less than the opponent's attorney fees.

One way out of a bad case for the defendant when they are facing an offer in settlement is to voluntarily dismiss the case. There is no winner or loser then and the offer in settlement is rendered meaningless.

If you were to read case law in Florida, you will see that cases quote the statute that says "any civil case" but fail to quote the rest of the sentence which qualifies that to "insurance and other contract" cases. My view, it does not apply to intentional torts and I have found no case law applying it to intentional torts.

The Florida Legislature passed 786.79 to try to make insurance and other contract cases (generally simple cases) settle and to reduce the demand on limited judicial resources. In this respect they have failed completely as this statute has created a vast amount of litigation. Thus, if you are the plaintiff, there are ways to take a 786.79 offer out of the picture. One, include one or more intentional torts. Intentional Infliction of Emotional Distress is obviously an intentional tort. Negligent Infliction of Emotional Distress is not. Basicly, any tort based on negligence is not intentional. Defamation, invasion of privacy, civil theft, etc. are intentional torts.

The other way, even better because it has been recognized by the Florida Supreme Court is to include injunctive or equitable relief in the complaint. An offer in settlement can't work then.

An offer in settlement can only be done once in a case and only takes effect after a final judgment in favor of the offerer.

Florida Rule 57.105 --

The second major fee shifting provision of Florida law is Rule 57.105. Courts have said “the clear purpose of section 57.105 (is) to reduce frivolous litigation.” Originally it was necessary that the court find the entire case frivolous and the rule 57 action was brought at the end of the case.

In 1999 the statute was amended. Now a Rule 57 motion can be brought at any time in the case when the action itself, any claim of the complaint, a motion or something else in the case is not supported by the facts of the case or existing law. Courts still refer to the frivolous standard.

In order to use the statute, counsel must send a warning letter which must be specific as to its legal basis, giving opposing counsel the chance to withdraw the offensive claim or motion.

Again, counsel must have a firm basis for bringing a Rule 57 motion and must have followed the legal standards before doing so. I have seen lawyers ask for Rule 57 attorney fees in answers to complaints. That is pointless other than a crude attempt to intimidate someone who does not know the law. I have seen lawyers file motions under Rule 57 without ever serving the warning letter. There are lots of attorneys who do not know what they are doing. This is a reason that the party in a case, especially a business person, should have some understanding of how the law works and what some of the traps are.

Of course, if you are appearing pro se (representing yourself) in a civil action you can NOT use either rule, but they both can be used against you.

Courts in Equity --

Did you know there is more than one type of court in Florida and other states? The majority of cases are in courts of law. Courts of law allow actions for damages of various types, and punitive damages. A side issue, in Florida (and other states) you can NOT ask for punitive damages in a civil complaint. Federal courts generally follow the law of the state they are located in on this issue. (Chances are there will be concurrent state claims too.) What you must do is file a motion to amend the complaint to allow punitive damages. All states have engaged in tort reform, of which this is part, and you must establish that your claims meet the standards for punitive damages, usually in the motion and a hearing on the motion.

A Court in Equity is much more limited. Probate court and family court are courts in equity. You can not sue for damages in a probate court. The power of the probate court is limited to the administration of wills and estates without wills. A probate court can order restitution or what is called a constructive trust. This is only a brief summary.

Dan F. Schramm --
CEO
Blue Planet Offices, Inc.
FloridaCorporate.com

P.S. Thank you for choosing Blue Planet as your Florida registered agent. Remember, corporate annual reports and the $150 fee is due by the end of April. Paying on May 1st or later subjects you to a $500 penalty and there is no way out of it.

NEWSLETTER - 03-19-2015

California's new LLC law: next steps for California LLCs

On January 1, 2015, California’s Beverly-Killea Limited Liability Company Act (Old Act) was superseded by the California Revised Uniform Limited Liability Company Act (New Act). The New Act includes a number of substantive changes that may adversely affect existing California limited liability companies unless they amend their operating agreements.

The New Act took effect on January 1, 2015 and is codified at Section 17701.01 et seq. of the California Corporations Code. It is based on the Revised Uniform Limited Liability Company Act (RULLCA) first promulgated in 2006 by the National Conference of Commissioners on Uniform State Laws. The New Act contains significant differences from both the Old Act and the RULLCA. The New Act applies automatically– there is no procedure to opt in or opt out – and impacts all existing California limited liability companies (LLCs) as well as all LLCs formed under the laws of California after January 1, 2015.

The basic concepts under the New Act are similar to the Old Act. However, the New Act includes a number of substantive changes that may require the members of California LLCs to review and modify their LLC operating agreements. A few of these changes are highlighted below.

Expansion of Default Rules and Mandatory Rules

For existing California LLCs, the provisions of the New Act may effectively supplant portions of existing operating agreements, as the New Act provides a more detailed set of default rules that apply when an operating agreement is silent. For example, a new default rule under the New Act requires the consent of all members of an LLC in order for the LLC to take any act outside the ordinary course of the LLC’s activities. Accordingly, if an operating agreement was drafted with the intent to give the manager broad discretion with respect to business decisions but fails to specify that the manager may take actions outside of the ordinary course of business, the default rule under the New Act would arguably override the existing language in the operating agreement.

Further, the New Act also includes a number of mandatory rules that may not be overridden (or which may be varied only to a limited extent) by an operating agreement. These mandatory provisions cover, among other things, fiduciary duties, information rights and organic changes such as dissolution and mergers.

Dissociation Events and Potential Impact

The New Act furnishes more detail regarding withdrawal and the resulting consequences of withdrawal (referred to as “dissociation”) of an LLC member from an LLC. The New Act sets forth certain events that automatically result in a member’s dissociation. For example, a member may be expelled as set forth in the operating agreement or as a result of a trigger event stated in the LLC agreement as causing a member’s dissociation. A member who becomes a debtor in bankruptcy is also automatically dissociated. The dissociation of a member can also change the member’s status to that of a transferee. As a consequence, such member will only have limited rights and not the more expansive statutory rights of a member. If the members of an LLC do not want the automatic dissociation provisions to be triggered, the operating agreement should specifically address the statutory provisions.

Indemnification

The Old Act provided that an operating agreement may provide for the indemnification of any person that acts on behalf of the LLC, including any manager, member, officer, employee or agent of the LLC. Under the New Act, indemnification is mandatory for any member in a member- managed LLC and any manager of a manager-managed LLC who complies with the duties set forth in the New Act. However, the New Act also provides that an operating agreement may modify or eliminate such indemnification. Under the New Act, indemnification is permitted, but not mandated for officers, employees and agents.

Next Steps

Listed above are just a few of the many changes under the New Act. Managers and members of California LLCs should conduct a detailed review of the New Act and their LLC operating agreements, particularly with respect to the default rules of the New Act, and consider whether amendments are needed to their existing operating agreements.

NEWSLETTER -- 02-13-2015

A legal brief from Blue Planet Offices, Inc. and FloridaCorporate.com

EMPLOYEE BACKGROUND CHECKS HAVE RULES

Background checks are a vital tool used to avoid hiring problem employees and can help limit a company’s potential liability. With more than 65 million people in the United States having been arrested or convicted of crimes, and with employers successfully being sued for the criminal and civil acts of their employees, it is not surprising that more than 90 percent of employers conduct criminal background checks with almost 70 percent requesting broader “consumer reports” on all job applicants. However, care must be taken, because an employer can also run into serious trouble for not following the rules regarding background checks.

An employer’s ability to conduct background checks is limited by both federal and state laws and regulations. In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal discrimination laws under Title VII, issued guidance stating that sweeping companywide decisions to not hire or promote employees based on criminal backgrounds violated Title VII. Also in 2012, Congress amended the Fair Credit Reporting Act (FCRA), setting forth detailed procedures to be followed when a “consumer report” (which includes criminal, civil, and driving records; reference checks; social media research; and other information obtained about an applicant/employee by a consumer reporting agency) is used for employment purposes. Additionally, federal law makes it unlawful for an employer to make employment decisions based on an individual’s filing of bankruptcy. Originally published in Banking Matters - Winter 2015.

FACEBOOK FISHING EXPEDITIONS IN FLORIDA CIVIL ACTIONS

In Root v. Balfour Beatty Const., LLC, 2015 WL 444005 (Fla. 2d DCA February 5, 2015), Florida joined a growing list of courts around the country that expressly prohibit “fishing expeditions” in social media discovery. Root was a personal injury action brought by the mother of a three-year-old boy, who was in the care of his seventeen-year-old aunt at the time he was injured. The mother also brought a derivative claim for loss of parental consortium. Defendants raised several affirmative defenses including the mother’s negligent entrustment and the aunt’s failure to supervise the boy. Defendants requested the mother to produce copies of “any and all postings, statuses, photos, ‘likes’ or videos” on her Facebook page before or after the accident related to her relationships with her son, other family members, boyfriends, husbands, and/or significant others as well as related to her mental health, stress complaints, alcohol use or other substance abuse. Id. at *1. The discovery also sought postings relating to any lawsuits the mother filed after the accident. The trial court ordered the discovery to proceed, but the 2nd DCA granted certiorari and quashed the order.

The Court began its analysis noting that courts around the country have repeatedly determined that social media evidence is discoverable and that the Florida Rules of Civil Procedure were amended in 2012 to provide guidelines for the discovery of electronically stored information. The Court remarked that social network discovery simply requires applying “basic discovery principles in a novel context.” Id. at *2 (quoting E.E.O.C. v. Simply Storage Mgmt., LLC, 270 F. R. D. 430, 434 (S.D. Ind. 2010)). Applying those basic principles, the Court held that Defendants had failed to meet their burden that this discovery was reasonably calculated to lead to admissible evidence regarding the claims or defenses at issue in the case. The Court also held that the discovery was overbroad. As the Court observed, none of the discovery related to the accident or the boy’s injuries. Likewise, regarding the mother’s loss of consortium claim, the Court noted that the discovery was not limited to the relevant inquiry: the impact of the boy’s injuries on his mother. In sum, the Court agreed with the mother that Defendants were engaged in an impermissible fishing expedition of her personal information on Facebook.

The discovery at issue in Root was arguably more specific than the social media discovery rejected by several federal district courts in recent opinions. See e.g., Ford v. United States, 2013 WL 3877756 (D. Md. July 25, 2013)(in medical malpractice case, discovery from plaintiff’s social media accounts relating to any factual allegation in plaintiffs’ depositions was not narrowly tailored to complaint and failed to identify specific categories of information sought); Jewell v. Aaron’s, Inc., 2013 WL 3770837 (N.D. Ga. July 19, 2013)(in Fair Labor Standards Act class action, discovery seeking class members’ posts on Facebook during working hours was a fishing expedition); Salvato v. Miley, 2013 WL 2712206 (M.D. Fla. June 11, 2013) (in wrongful death action, discovery seeking communications from defendants cell phone, email, and social media accounts that related in any way to complaint was overbroad); Kennedy v. Contract Pharmacal Corp., 2013 WL 1966219 (E.D. NY May 13, 2013)(in Title VII hostile work environment case, discovery of plaintiff’s social networking usage including all media related to plaintiff’s emotional state was overbroad and not limited to content in some way relating to acts alleged in complaint).

The Court’s decision in Root was likely influenced by the concession of Defendants’ counsel to a special master, quoted in the opinion, that the discovery was an attempt to “look under the hood, so to speak, and figure out whether that’s even a theory worth exploring.” 2015 WL 444005 at *3. In fact, the special master was quoted as saying that 99% of the discovery might be irrelevant. Id. The Court may have also been swayed by the fact that the mother’s deposition had already been taken, but Defendants were unable to point to anything in her testimony to support the relevance of the discovery. Id, at *2. Importantly, the Court left the door open for Defendants to pursue the discovery should further developments in the litigation suggest that the requested information may be discoverable but cautioned that “the trial court may have to review the material in camera and fashion appropriate limits and protections regarding the discovery.” Id.

Experienced litigators should know by now that almost any attempt to cast a wide net around a party’s social media accounts will draw numerous objections. The Root opinion certainly reinforces the merit of such objections and will undoubtedly be cited as establishing a “no Facebook fishing expeditions” rule in Florida. The more important takeaway from Root is that the proponent of social media discovery must be able to articulate how the discovery is narrowly and carefully tailored to specific issues in the case.

NEWSLETTER -- 02-24-2015

New Florida LLC Act Does Not Apply To Existing LLCs until January 1, 2015, Unless Prior Application is Elected

Effective January 1, 2015, the Florida Revised Limited Liability Company Act (the “New Florida LLC Act”), new Chapter 605 of the Florida Statutes, became effective for LLCs formed in Florida on or after January 1, 2015. Existing Florida LLCs are not required to comply with the New Florida LLC Act, and remain subject to the old Florida Limited Liability Company Act, Chapter 608 of the Florida Statutes (the “Old Florida LLC Act”), until January 1, 2015, when Chapter 608 is repealed and the New Florida LLC Act becomes mandatory for all Florida LLCs. An existing LLC can voluntarily become subject to the New Florida LLC Act at any time from and after January 1, 2015 by amending its operating agreement to such effect. Effective January 1, 2015, pursuant to the New Florida LLC Act, the Florida Department of State began issuing and requiring the use solely of Florida LLC forms and filings that comply with the New Florida LLC Act, even with respect to existing LLCs that have not yet elected or are not required to be governed by the New Florida LLC Act.

Revised Act Incorporates National Models and Other Relevant Statutes

As discussed in previous blog posts, the New Florida LLC Act is a brand new statute that bears little to no resemblance to the Old Florida LLC Act. And, while the New Florida LLC Act is based primarily on a national model LLC Act, the 2006 Revised Uniform Limited Liability Company Act (the “Model LLC Act”, last amended in 2011), the drafters also incorporated provisions from the Old Florida LLC Act, other model LLC and other entity acts, other Florida entity statutes, including the Florida Business Corporation Act and the Florida Revised Uniform Limited Partnership Act, as well as other influential state LLC statutes such as Delaware’s.

Significant Changes in Florida LLC Act Affect Operating Agreements

Because the New Florida LLC Act is based on the Model Act, attorneys and other users should find the New Florida LLC Act far better organized and, accordingly, easier to use than the Old Florida LLC Act. Users need to be aware, however, that the New Florida LLC Act contains significant changes from the Old Florida LLC Act. Many of these changes are intended to provide a base level of protection for the smaller or less sophisticated LLC members who may be without competent LLC counsel and who may not have a comprehensive, or any, written operating agreement. Most of these new statutory provisions can be overridden through a well-drafted operating agreement, provided that counsel is aware of the new provisions that can be trumped. Existing forms of Florida LLC operating agreements, which may have been fine under the Old Florida LLC Act, probably do not specifically address all of these areas of change. Accordingly, drafters of operating agreements need to thoroughly understand the New Florida LLC Act and, in particular, how it differs from the Old Florida LLC Act, as well as whether the new provisions are waivable. Certain changes are non-waivable, meaning that they cannot be altered through the operating agreement or otherwise. The New Florida LLC Act contains 17 non-waivable provisions, compared to five under the Old Florida LLC Act.

Additional Resources on the New Florida LLC Act

Readers who desire to understand how the New Florida LLC Act changed the Old Florida LLC Act, and where the New Florida LLC Act deviates from the Model Act, should review the White Paper prepared by the Executive Committee of the Florida Bar Revised LLC Act Drafting Committee. In addition, the official commentary to the Model LLC Act is a valuable tool for understanding the New Florida LLC Act, provided that the user knows where the New Florida LLC Act differs from the Model Act, and therefore where the commentary is not applicable. For a discussion of some of the material changes that the New Florida LLC Act makes to the Old Florida LLC Act, please see: Florida Legislature Passes New Revised Limited Liability Company (LLC) Act.