Articles Posted in Business Litigation

Florida appellate courts will scrutinize the method employed in calculating damages in business litigation, because this involves a pure question of law. Precedent from the Supreme Court of Florida in W.W. Gay Mech. Contractor, Inc. v. Wharfside Two, Ltd., 545 So.2d 1348 (Fla. 1989) held that, generally, a business seeking to recover lost profits “must…

Florida law specifies, at Florida Statutes section 542.335, how and when a restrictive covenant (such as a non-compete agreement or non-solicitation agreement) may be enforced against a current or former employee. In a lawsuit to enforce an agreement that restricts or prohibits competition during or after the term of the restrictive covenants, section 542.335(1)(b) states…

The Computer Fraud and Abuse Act (sometimes referred to as the “CFAA”), 18 U.S.C. § 1030, is a federal law that prohibits access a computer and obtaining information without authorization or by exceeding authorized access. The statute (at section 1030(a)(2)(C)) states that whoever “intentionally accesses a computer without authorization or exceeds authorization and thereby obtains…

Parties to contracts sometimes include a “liquidated damages” provision, i.e., a certain financial amount in the event of a triggering event specified in the contract. Liquidated damages provisions seek to ensure compliance with the parties bargain when damages would be difficult to determine from the parties’ vantage when they sign the contract. As Miami’s Third…

The State of Florida enacted Florida Statutes Section 542.335 to allow non-compete agreements where there is a “legitimate business interest.” Two frequently cited “legitimate business interests” are confidential information and trade secrets. In an employment context, a non-compete agreement based on “[v]aluable confidential business or professional information” (referenced in Florida Statutes Section 542.335(1)(b)(2)), Florida law…

Florida law recognizes the doctrine of caveat emptor in commercial transactions. Florida and some other jurisdictions understand this legal doctrine to mean “buyer beware,” thereby imposing on buyers in commercial real property transactions the legal obligation to investigate what they are buying. Florida’s Fourth District Court of Appeal in Transcapital Bank v. Shadowbrook at Vero,…

Not every written contract is sufficiently comprehensive to address potential fraud claims. Under Florida law, however, a well-drafted written contract can bar a business litigation claim for fraud that essentially covers the same territory as the contract. Florida’s Fourth District Court of Appeal in Mac-Gray Servs., Inc. v. DeGeorge, 913 So.2d 630 (Fla. 4th DCA…

Miami’s Third District Court of Appeal in Moriber v. Dreiling, 194 So.3d 369 (Fla. 3d DCA 2016), explained that the elements for a cause of action for fraudulent misrepresentation and fraudulent inducement are the same, namely “(1) a false statement concerning a material fact; (2) the representor’s knowledge that the representation is false; (3) an…

In business litigation, parties sometimes try to sue out-of-state corporations in the state where the plaintiff resides or conducts its business, i.e., the “home state.” Federal Constitutional law, under due process clause as applied through the Fourteenth Amendment to the United States Constitution, however, places limits on the ability to sue a foreign corporation (i.e.,…

An important consideration when buying a business, whether via a stock purchase agreement or an asset purchase agreement, is whether the seller will take the sale proceeds and start a new, competing business. Typically, the seller would have a competitive advantage in competition with the new buyer of the business, due to such matters as…