MIAMI BUSINESS LITIGATION: LITIGATION PRIVILEGE UNDER FLORIDA LAW

The litigation privilege protects most statements made during the course of litigation in Florida. The litigation privilege has a wide scope and covers many causes of action. The Miami business litigation attorneys of the Mavrick Law Firm represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents 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.

Florida courts have historically applied the litigation privilege to causes of action for perjury and defamation. Levin, Middlebrooks, Mavie, Thomas, Mayes, & Mitchell, P.A. v. U.S. Fire. Ins. Co., 639 So. 2d 606 (Fla. 1994). In Levin, the Florida Supreme Court expanded the litigation privilege to cover all acts occurring during judicial proceedings, “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.” The Florida Supreme Court then applied the litigation privilege to a claim of tortious interference with a business relationship.

What about claims for malicious prosecution or abuse of process? Can the litigation privilege negate a litigant’s ability to bring these claims because they are based upon the unlawful use of a legal proceeding against another. See Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352 (Fla. 1994) (explaining that a claim for malicious prosecution is founded on allegations that the defendant maliciously brought a legal proceeding against the plaintiff without probable cause); Della-Donna v. Nova University, Inc., 512 So. 2d 1051 (Fla. 4th DCA 1987) (abuse of process involves the defendant’s improper use of process with ulterior motives). Malicious prosecution inherently involves acts that occurred during the course of litigation. In Debrincat v. Fischer, 217 So. 3d 68 (Fla. 2017), the Supreme Court of Florida determined that the litigation privilege did not apply to malicious prosecution because “[a]pplying the litigation privilege… would eviscerate [the] long-established cause of action.” Because malicious prosecution inherently involves acts that occurred during the course of a judicial proceeding, the litigation privilege would essentially eliminate malicious prosecution as a cause of action. Debrincat v. Fischer, 217 So. 3d 68 (“[M]alicious prosecution could never be established if causing the commencement or continuation of an original proceeding . . . were afforded absolute immunity . . . .”).

Debrincat addressed only malicious prosecution claims, and not the distinct tort of abuse of process. Therefore, a litigant could argue the litigation privilege still applies to abuse of process claims because Debrincat’s holding was limited to malicious prosecution claims. There is some support for this argument. Florida courts applied the litigation privilege to abuse of process claim pre- Debrincat. Am. Nat. Title & Escrow of Fla. Inc. v. Guarantee Title & Trust Co., 748 So. 2d 1054 (Fla. 4th DCA 1999); LatAm Investments, LLC v. Holland & Knight, LLP, 88 So. 3d 240 (Fla. 3d DCA 2011). In addition, federal courts have applied the litigation privilege to abuse of process claims post-Debrincat. See EMI Sun Village, Inc. v. Catledge, 779 Fed. Appx. 627 (11th Cir. 2019) (finding litigation privilege still applies to abuse of process); Kodsi v. Branch Banking & Trust Co., 2018 WL 830117 (S.D. Fla., Feb. 12, 2018) (holding that Debrincat does not apply to abuse of process claims).

The Miami business litigation lawyers of the Mavrick Law Firm also represent clients in Fort Lauderdale, Boca Raton, and Palm Beach. This article does not serve as a substitute for legal advice tailored to a particular situation.