DEFENDING FLORIDA EMPLOYERS: THE LITIGATION PRIVILEGE MAY APPLY TO RETALIATION CLAIMS

The litigation privilege protects parties and their attorneys from liability for statements and other acts taken in relation to litigation. “The litigation privilege in Florida provides all persons involved in judicial proceedings, including parties and counsel, an absolute privilege from civil liability for acts taken in relation to those proceedings.” Cherdak v. Cottone, 2023WL 2044608 (M.D. Fla., Feb. 16, 2023). The privilege allows “participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.” Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994). The litigation privilege has a broad application that can protect against many different claims, which could include claims of employment retaliation. The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Traditionally, the litigation privilege protected parties from claims of defamation and perjury for statements made in litigation. Fridovich v. Fridovich, 598 So. 2d 65 (Fla. 1992). However, in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994), the Florida Supreme Court expanded the privilege. Levin ruled that the litigation privilege “must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.” “[T]he litigation privilege applies in all causes of action, statutory as well as common law.” Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla. 2007). Courts have applied to the privilege to, for example, claims of tortious interference with business relationships (Levin), violations of the Consumer Collection Practices Act (Echevarria), and for breach of a non-disparagement agreement (James v. Leigh, 145 So. 3d 1006 (Fla. 1st DCA 2014)).

An interesting question is whether the litigation privilege applies to claims of employment retaliation. Many federal and state employment statutes allow employees to file claims of retaliation when an employer takes an adverse action against them for engaging in a protected activity. For example, Title VII of the Civil Rights Act of 1964 allows claims of retaliation when an employer takes an adverse action against an employee because he “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing” associated with a claim of unlawful employment discrimination. 42 U.S.C. § 2000e-3. If an employer files a lawsuit against an employee who has filed a charge of discrimination with the Equal Employment Opportunity Commission, the employee might claim that the lawsuit is retaliation. Does the defense of litigation privilege apply in this circumstance?

This issue has not been addressed by a Florida state court. However, federal courts in Florida have addressed the issue. Phillips v. Mitchell’s Law Maintenance Corp., 2014 WL 12993599 (S.D. Fla., March 17, 2014), is instructive. The plaintiff was a former employee of the defendant. The employer initially sued its employee and the employee countersued its employer. Then, the employer amended its complaint against the employee to add more claims and the employee amended its lawsuit to claim FLSA retaliation. The employer moved to dismiss the retaliation claim arguing that Florida’s litigation privilege barred the claim. The court granted the motion to dismiss because the act of amending a complaint in a lawsuit is protected by Florida’s broad litigation privilege. However it should be noted that Phillips was reversed by the Eleventh Circuit Court of Appeals because Florida’s litigation privilege does not apply in federal court. The reasoning in Phillips can nevertheless be persuasive.

The Fort Lauderdale business litigation attorneys of the Mavrick Law Firm represent businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.