Articles Posted in Business Litigation

Some Florida employers and their owners or managers have been sued for alleged intentional infliction of emotional distress. The Supreme Court of Florida in Metro. Life Ins. Co. v. McCarson, 467 So.2d 277 (Fla. 1985), held that to prove intentional infliction of emotional distress, the plaintiff must prove (1) the defendant engaged in intentional or…

Florida’s Whistleblower’s Act, governing private sector employers, prohibits the employer from taking “retaliatory personnel action” against an employee because the employee “[o]bjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” Section 448.102(3), Florida Statutes. The statute defines “retaliatory personnel…

Claims of false advertising are often asserted under the federal Lanham Act. In Tobinick v. Novella, 848 F.3d 935 (11th Cir. 2017), the United States Court of Appeals for the Eleventh Circuit explained that “[t]he Lanham Act prescribes liability for false advertising to ‘commercial advertising or promotion.’” To evaluate whether a claim can be asserted…

In Florida, an injunction is the generally favored remedy in cases of breach of a non-compete agreement. The Supreme Court of Florida in Miller Mechanical, Inc. v. Ruth, 300 So.2d 11 (Fla. 1974), explained that in cases of breach of a restrictive covenant, “[t]he Court may award damages for breach of contract but the normal…

Sexual harassment is a form of sex discrimination prohibited by the Florida Civil Rights Act and under the federal civil rights law referred to as Title VII, so that an employee may assert a claim for sexual harassment under section 760.10, Florida Statutes. Although neither the Florida nor the Federal Civil Rights Acts specifically mention…

Under Florida law, commercial litigation cases involving sales of goods are governed by the Uniform Commercial Code (UCC). Under Florida’s version of the UCC, at Florida Statutes Section 672.318, “[a] seller’s warranty whether express or implied extends to any natural person who…is an employee, servant or agent of his or her buyer if it is…

The Fair Labor Standards Act (often referred to as the “FLSA”) applies to “employees” but does not apply to “independent contractors.” The FLSA has an expansive definition of who constitutes an employee. At 29 U.S.C. section 203(e)1), the FLSA defines the term “employee” as “any individual employed by an employer.” The FLSA, at 29 U.S.C.…

Many non-compete agreements contain covenants asserting that the employer business has protectible trade secrets. A contractual provision where the parties agree, ex ante, that the employer will have (or actually has) a “trade secret” does not thereby mean the employer will have (or has) a trade secret in the future. As Florida’ Fourth District Court…

Arbitration is a private legal dispute resolution process that generally relies on the consent of its participants. Florida courts have considered cases where a person or business that never signed an arbitration contract (which the law typically refers to as a “non-signatory” to the contract) demands arbitration because there is an arbitration contract between the…

Under Florida law accords litigants with two main avenues for recovery of damages in cases of deception or fraud. One option is via the Florida Deceptive and Unfair Trade Practices Act (commonly referred to as FDUPTA), which allows recovery of actual damages plus the legal expense associated with the successful prosecution of the claim. The…