Monday, September 29, 2014

Arbitration Proceedings Are Limited By Florida Statute § 95.11

By Caroline Johnson Levine

Arbitration agreements can be considered to be a contractually advantageous alternative form of dispute resolution. Parties may enter into arbitration agreements to prevent lengthy civil litigation proceedings and reduce costs. However, an arbitration clause may subsequently be considered “fine print” by aggrieved parties who feel that they entered into a contract without understanding that they were agreeing to potentially limit the amount of their recovery, appellate review, discovery, fees, and enforcement of judgments.

Arbitration can reduce exposure to the realm of civil litigation; therefore, the Florida Supreme Court was recently required to address whether the civil statute of limitations applied to arbitration agreements. In Raymond James Financial Services v. Phillips, 126 So. 3d 186 (Fla. 2013), an office manager “invested his clients’ assets into allegedly non-diversified, high risk equities, which caused the investments to lose significant value.” Id. at 188. The clients’ contract stated that “[a]rbitration is final and binding on the parties. The parties are waving the right to seek remedies in court, including the right to trial by jury.” Id. Additionally, the contract stated that the agreement between the parties would not “waive the application of any relevant state or federal statute of limitation” and that any claim “which is time barred for any reason shall not be eligible for arbitration.” Id. The allegedly harmful investments were made in 2000, and the clients filed a claim for arbitration for financial recovery in 2005.

Raymond James filed a motion to dismiss because the claim was filed outside the four-year statute of limitations provided for in section 95.11, Florida Statutes. The clients argued in response that the “statute of limitations does not apply to arbitration, but applies only to judicial actions.” Id. at 189. The Supreme Court engaged in statutory interpretation in order to determine whether the definition of “civil action or proceeding,” under section 95.011, included arbitration proceedings. Id. at 190. The court analyzed various statutory provisions and determined that arbitration should have the same value as a civil proceeding because “an arbitrator would fall under the definition of an adjudicator, which Black’s Law Dictionary defines as ‘[a] person whose job is to render binding decisions.’ ” Id. at 191.

Significantly, the court found that section 95.03 was an important factor in requiring that Florida’s statute of limitations cannot be contracted away or diminished because diminishing the statutory rights of aggrieved parties would cause a contract to be void. Additionally, allowing an indefinite period of time to pass prior to filing an arbitration claim would provide a plaintiff with “an opportunity to enforce an unfresh claim against a party who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses.” Id. at 192. Therefore, the Supreme Court held “that Florida’s statute of limitations applies to arbitration because an arbitration proceeding is within the statutory term ‘civil action or proceeding’ found in section 95.011.”

Monday, September 22, 2014

Marital And Family Law: Innocent Spouse Relief Expanded

By Connie Rossi and Briggs Stahl

As of September 16, 2013, the IRS has revised procedures for spouses who wish to request equitable relief from tax liability under the innocent spouse rules. Significant changes were made to previous guidance, mainly that the IRS will now give greater weight to proof of economic hardship and abuse in marital situations.

With these changes, more claims are being filed and taxpayers can move toward fitting into Rev. Proc. 2013-34’s more nuanced considerations of the facts and circumstances. It’s also likely that equitable relief will be granted more since the two-year limitation period has been lifted.  Taxpayers may now consider whether the new criteria favor a filing or revising a previous request for innocent spouse relief.

When a couple file a joint return, each is jointly and severally liable for the full amount of tax on the couple’s combined income, including any tax deficiencies assessed after an audit. To redress this harshness of the joint/several liability rule, the code was implemented to allow an innocent spouse to request three types of relief provisions: (1) Relief to “innocent spouses” who were unaware of tax understatements attributable to the other spouse; (2) Allows joint return filers who are widowed, divorced, legally separated, or have lived apart for at least one year to limit their liability for deficiencies on the joint return; (3) Allows joint return filers to avoid liability for unpaid amounts of tax shown on joint returns as filed, but not paid, or allows joint return filers to avoid liability for a deficiency that does not qualify for relief under either Code Sec. 6015(b) — traditional innocent spouse relief — or Code Sec. 6015(c) — allocation of liability.

To be considered for relief, the requesting spouse must have filed a return for the year in which relief is sought, assets weren’t transferred between spouses as part of a fraudulent scheme, disqualified assets were transferred, the spouse seeking relief didn’t file a return with intent to defraud, and liability from which the requesting spouse seeks relief is attributable to an item or underpayment resulting from the nonrequesting spouse’s income. Generally, relief will be granted if the requesting spouse is no longer married or hasn’t been a member of same household at any time during a 12-month period ending the date relief was requested; if at the time the return was filed, the requesting spouse had reason to believe that tax would be paid by the other spouse; and if the innocent spouse would suffer economic hardship if relief wasn't granted.

To obtain relief under these above provisions, make a timely election on IRS Form 8857 no later than two years after the IRS begins a collection process. Request for equitable relief of an unpaid liability must be made before the expiration of the period of limitations on collection of a tax liability, or generally within 10 years from assessment of the tax. When making claim for credit or refund, the request must be made the later of three years from the date the return was filed, or two years from the date the tax was paid.

Friday, September 19, 2014

Labor And Employment Law: Drug Screening And Public-Sector Employment

By Brian Koji and Shaina Thorpe

As we all learned in law school, the Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend IV. Although the Supreme Court has indicated that the Fourth Amendment applies to drug screening by public-sector employers, many individuals are still told to report to the lab for testing either pre-employment, randomly, or after an accident. Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 617 (1989). The question is: Are these tests “reasonable” within the meaning of the Fourth Amendment or unconstitutional?

As frequently occurs in our work, the short answer is “it depends,” particularly with respect to applicants and random testing. The courts have grappled with the concept of reasonableness in the public-sector employment context for years. As if the constitutional aspect of drug testing were not unwieldy enough, there are also Drug-Free Workplace Acts to contend with. § 440.102, Fla. Stat. (Participation in the Chapter 440 Drug-Free Workplace Act is voluntary, and compliance entitles the employer to a workers’ compensation policy discount. There is also a statute specifically applicable to public employers, and participation in that act is also voluntary.) § 112.0455, Fla. Stat. Some public employers may confuse the statute’s approval of drug testing for some employees as a green light to test all employees and applicants randomly or without suspicion. As the United States Constitution trumps the state statute on this issue, this would be error.

The Supreme Court has issued five decisions on drug testing  Skinner, 489 U.S. 602; Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656 (1989); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995); Bd. of Educ. v. Earls, 536 U.S. 822 (2002); Chandler v. Miller, 520 U.S. 305 (1997)  giving some contours to the shapelessness of the Fourth Amendment’s reasonableness standard but stopping short of providing a bulletproof standard that employers could apply universally with certainty that their actions were constitutional. Rather, as the Eleventh Circuit recently articulated, the appropriate inquiry requires “a job-category-by-category balancing of the individual’s privacy expectations against the Government’s interests.” Am. Fed’n of State, Cnty. and Mun. Emps. Council 79 v. Scott, 717 F.3d 851, 867 (11th Cir. 2013). 

The Eleventh Circuit provided more guidance in 2013, in one case imposing an injunction on across-the-board drug testing of all applicants for welfare assistance, Lebron v. Dep’t of Child. & Fams., 710 F.3d 1202 (11th Cir. 2013), and in another case rejecting a Florida Governor’s Executive Order requiring suspicionless testing of all current employeesAFSCME, 717 F.3d at 873-75. (Although Governor Rick Scott’s office petitioned the Supreme Court for review of the latter decision, the Supreme Court declined to hear the case on April 21. Scott v. Am. Fed’n of State, Cnty. and Mun. Emps. Council 79, 134 S. Ct. 1877 (2014).) Notably, the latter decision did not address applicants. Thus, public-sector employers may argue that there is no binding precedent squarely addressing suspicionless applicant testing, and they would be right.  

As of this date, there is no Supreme Court or Eleventh Circuit decision that expressly rules on the constitutionality of suspicionless testing of all job applicants, although other courts have done so. In particular, two federal district court cases in Florida, relying on the Supreme Court cases referenced above, have held that across-the-board job applicant testing is unconstitutional. Voss v. City of Key West, 2014 WL 1883588 (S.D. Fla. May 9, 2014) (King, J.); Baron v. City of Hollywood, 93 F. Supp. 2d 1337 (S.D. Fla. 2000) (Ryskamp, J.). In these cases against the City of Hollywood and the City of Key West, the trial courts determined the employers’ generic goals in maintaining a drug free workplace, minimizing on-the-job accidents, maximizing productivity, and maximizing public confidence in the provision of public services were insufficient to satisfy the Fourth Amendment. Similarly, other federal circuit courts and state courts have touched on the issue of drug testing job applicants, with similar outcomesSee, e.g., Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008); O’Keefe v. Passaic Valley Water Comm’n, 602 A.2d 760 (N.J. Sup. Ct. 1992), aff’d as moot, 624 A.2d 578 (N.J. 1993).

Ultimately, because the touchstone of lawful drug testing is the vague “reasonableness” standard, public employers would be wise to err on the side of caution when it comes to determining which applicants or employees should be required to participate in suspicionless drug testing.

Wednesday, September 17, 2014

Intellectual Property Law: Intellectual Property Pitfalls In Corporate Transactions

By Rachel Marks Feinman

As IP practitioners, we may be asked to assist our colleagues in navigating complex IP issues related to corporate transactions. The considerations summarized below are issues that we may be generally aware of but have never considered in connection with a corporate transaction.

In an asset sale, corporate attorneys need to analyze the assignability of a seller’s contracts, some of which may be IP licenses. If the contracts contain restrictions on assignment, the consent of the non-assigning party may be required. The “default” rules concerning assignment of IP licenses differ from the treatment of many other contracts. Unlike most other contracts, if an IP license is silent on assignability by the licensee, a majority of courts have held that a licensee’s rights are not assignable without the licensor’s consent.

In every corporate transaction, a buyer must consider whether a target company (in a stock sale or merger) or a seller (in an asset sale) actually owns the IP it purports to own. Unlike with tangible assets, this is a complicated issue with respect to IP. A combination of in-depth due diligence and strong representations and warranties in the contract will comfort the buyer on this issue. IP specialists may be asked to assist with both. The due diligence process depends in part on the type of IP at issue. If any IP has been created by independent contractors, it is crucial to identify and review the applicable contracts to ensure that the independent contractor properly assigned all rights to the seller or the target company. It is equally important to confirm that all IP created by the seller’s or target company’s founders has been properly assigned.

Proprietary software products present unique challenges in corporate transactions. Buyers need to understand the development process of the software and whether or not open-source software elements were used. As part of the diligence process, buyers may consider conducting a third-party audit of the seller’s or target company’s source code. However, depending on the size of the deal, the cost of doing this may be prohibitive. If an audit is not conducted, the buyer should understand all open-source software used in the business and review the corresponding licenses to understand what obligations may be imposed by such licenses. 

Corporate transactions may be structured as a “carve-out,” which means a subsidiary or a business division is being sold — rather than an entire business enterprise. In those cases, it can be difficult to untangle the use of IP among the parties and ensure that the rights are properly conveyed. There may be a need for transition services between the target company/division and the selling entity. These services may flow in either direction depending on whether the IP at issue is conveyed or retained. These licenses and transition services arrangements are often the subject of intense negotiation.

As an IP specialist assisting in a corporate transaction, it is critical to understand the structure of the transaction and the totality of the situation to properly identify and address IP issues. 

Monday, September 15, 2014

Thirteenth Judicial Circuit Pro Bono Committee: Why S-2014-038 Matters

By Judge Catherine Peek McEwen

Do you know that Thirteenth Judicial Circuit Chief Judge Manuel Menendez Jr. has ordered almost all Hillsborough County Bar Association sections to appoint representatives to sit on the Thirteenth Judicial Circuit Pro Bono Committee (13th PBC)? The latest version of the order, Administrative Order S-2014-038, is effective July 1, 2014, and taps dozens of organizations to take a seat at the meeting table.

Besides not wanting to risk contempt of court by ignoring the order, your participation or the participation of a reliable and active designee is important to the wellness of your section members, as well as the wellness of the judicial system itself. Why?

First, I should explain what the 13th PBC is. The Florida Supreme Court requires the establishment of a pro bono committee in each judicial circuit in Florida. The 13th PBC serves three primary functions: First, to promote pro bono legal services and provide oversight and direction of such services in Hillsborough County; second, to collect data to assess attorney participation in pro bono programs in our county and report same to The Florida Bar Standing Committee on Pro Bono Legal Services; and third, to publicly recognize attorneys who undertake pro bono work.

Sections are tasked with providing a representative to attend meetings to help the 13th PBC meet its mission. That person could be you or someone you are confident will calendar and faithfully attend the quarterly committee meetings and annual award ceremony and follow up on tasks assigned at the meetings or in between meetings.

Each section is expected to either create its own pro bono project or participate as a group in some other entity’s, e.g., by scheduling a group outing to an evening intake clinic operated by a legal aid provider. The section’s rep on the 13th PBC reports the effort. The section members bond during the project, making for a robust section networking experience. 

The section reps also report back to section members on what pro bono opportunities are available so members individually may choose from among many forms of pro bono service, both as to subject matter and time commitment. This helps section members fulfill their solemn oath to help the defenseless and oppressed (no one wants to be considered a reneger!).

And section reps report back on award opportunities. Trust me, the esteem of a lawyer who is publicly recognized for pro bono service goes way up in the eyes of the judges before whom he or she appears!

The system also benefits when the section reps actually follow through on committee duties. Pro bono needs are met in increasing numbers, which means more indigent parties obtain meaningful access to the courts. And when pro se parties get lawyered up, that translates into smoother case processing and more efficient hearing dockets for all cases (read: less expense and delay to paying clients).

So when you get an email from incoming 13th PBC Chair Rosemary Armstrong asking for the name and contact information of your section’s rep, please don’t ignore it. It’s your responsibility as a section leader to ensure compliance with Judge Menendez’s order and, ultimately, the success of the 13th PBC mission.

Saturday, September 13, 2014

Health Care Law: Sharing Information To Prevent Fraud

By Clark J. Bolton

On February 26, 2014, the U.S. Department of Justice (DOJ) issued a health care fraud/waste/abuse (FWA) news release outlining its record-breaking results for fiscal year 2013. The figure was $4.3 billion, and these results were attributed to multiple program integrity initiatives. Contained in the release was praise for the Health Care Fraud Prevention and Enforcement Action Teams (HEAT), as well as DOJ’s focus on False Claims Act (FCA) cases. Near the end of the announcement was a reference to “historic efforts with the private sector to bring innovation to the fight against health care fraud.”

This mention of innovation relies heavily on public-private collaboration with an emphasis on information and data sharing. Notably, there is no universal national database that includes all claims data. From a pure program integrity perspective, this presents a risk since most providers are conducting business with a mix of public-private payers. Thus, the true size and scope of many suspected FWA cases is initially difficult to assess.

The National Health Care Anti-Fraud Association (NHCAA) recognized this vulnerability and took the initiative to address this gap by creating a voluntary self-reporting program in November 2005 and named it the Special Investigation Resource Intelligence System (SIRIS).  The concept behind SIRIS was to establish a forum where all interested parties, public and private, simply share basic case-related information. However, many private payers were reluctant to enter provider information into SIRIS. In fact, since its inception, only 40 percent of all private payers contribute information, but 95 percent review the database in an effort to gather intelligence on their cases.

Efforts to foster collaboration between all interested parties took another major step in July 2012, with the launch of the Healthcare Fraud Prevention Partnership (HFPP). HFPP is a joint program overseen by DOJ and the Department of Health & Human Services and takes the concept started with SIRIS and expands it significantly. 

Louis Saccoccio, the chief executive officer of NHCAA, testified before a Senate committee in March in support of HFPP. During the hearing on “Preventing Medicare Fraud,” he defined the charter for this new program:
  • “To engage in value-added data-exchange studies between the public and private sector partners. 
  • To leverage analytic tools and technologies against this more comprehensive data set.  
  • To provide a forum for business and government leaders and subject matter expert members to share successful anti-fraud practices and effective methodologies and strategies for detecting and preventing health care fraud.”

Saccoccio also addressed the issue on the reluctance of private payers to share information. He noted the existence of immunity statutes for reporting fraud to federal officials but none between private payers. Essentially, in his opinion, the lack of immunity inhibits program integrity objectives, and as a result, he urged lawmakers to pass new legislation to expand immunity to resolve this concern.

Ultimately, interested parties know the futility of relying primarily on a traditional fragmented pay-and-chase model. For example, $4.3 billion represents less than 5 percent of the total annual FWA, conservatively estimated at $90 billion. Instead, there is a recognition that an effective program integrity not only includes HEAT and FCA activities but also expands collaboration across public-private sectors. These efforts are centered on a data-driven approach where improper or fraudulent claims are either stopped pre-payment or quickly identified post-payment and recovered. As a result, this movement toward collaboration and data-driven program integrity will continue to expand into the foreseeable future. 

Thursday, September 11, 2014

Eminent Domain: Understanding The Difference Between Full Compensation And Just Compensation

By Angela B. Rauber

The Florida Constitution requires that condemning authorities in Florida pay “full compensation” when taking privately owned property for public use. Art. X, § 6(a), Fla. Const. The federal government, on the other hand, requires the payment of “just compensation” for governmental takings. Although the legal term differs by one word, the difference Florida’s requirement makes for private property owners and condemning authorities can be significant.

“Just compensation,” as required by the federal Constitution, is calculated by determining the market value of the property at the time of its taking. Olson v. United States, 292 U.S. 246, 255 (1934). That is, the condemning authority is required to pay the “amount that in all probability would have been arrived at by fair negotiations between an owner willing to sell and a purchaser desiring to buy.” Id. at 257. Although there is no precise formula, the calculation of market value should calculate “all considerations that fairly might be brought forward and reasonably be given substantial weight in such bargaining.” Id.

In contrast, Florida requires the payment of full compensation for governmental takings of property. The determination of full compensation “requires that courts take into account all facts and circumstances which bear a reasonable relationship to the loss occasioned an owner by virtue of his property being taken.” Behm v. Dep't. of Transp., 383 So. 2d 216 (Fla. 1980) citing Jacksonville Expressway Auth. v. Henry G. DuPree Co., 108 So. 2d 289, 291 (Fla. 1959). Thus, Florida courts look at the value of the property and the associated cost of its loss.

In addition to full compensation, Florida law requires additional types of compensation to be paid for takings as set out in section 73.071, Florida Statutes. Id.; see also Jamesson v. Downtown Dev. Auth., 322 So. 2d 510, 511 (Fla. 1975). Compensation must include the value of the property plus severance and/or business damages caused by loss of the property if less than the entire property is taken and certain statutory criteria are met. § 73.071, Fla. Stat. Removal or relocation expenses incurred by mobile home owners may be required. Id. In addition, Florida law requires the payment of attorneys’ fees and costs in accordance with sections 73.015, 73.092, and 73.093, Florida Statutes.

Attorneys representing either landowners or condemning authorities in eminent domain settlement proceedings should be prepared to address the value of the specific property both in terms of its market value and the cost of its loss to the owner. Some factors may seem obvious, such as access, visibility, and easements. Other factors require anticipation of future consequences after the taking is completed. For example, property owners may not be able to rebuild accessory structures, such as storage sheds or signs, on the remainder due to a reduced lot size or changes in zoning or building regulations. Although not every item a creative attorney can imagine will be compensable, the most effective attorneys will be those most prepared to address potential damages requiring full compensation.      

Tuesday, September 9, 2014

Elder Law: Building On A Successful First Year

By Elizabeth P. Allen and Debra L. Dandar

As summer draws to a close, we wish to welcome you to another exciting year for the Hillsborough County Bar Association Elder Law Section. As co-chairs of the Elder Law Section this year, we wish to thank Jack Rosenkranz for the tremendous effort put forth by him resurrecting the Elder Law Section last year. He did a terrific job of lining up informative speakers who provided relevant and timely information.

We thank Jack for his efforts, and this year, we plan to continue providing you with exciting speakers who will address a number of topics that are near and dear to us as elder law attorneys. Elder law attorney Rebecca Bell will provide us with an update on Medicaid Managed Care implementation in Florida. Travis Finchum, a co-trustee of Guardian Pooled Trust, will present on the topic of special needs trusts and lesser-understood Medicaid programs such as QI-1, SLMB, and QMB. Dale Smrekar, a certified appraiser, will speak to us concerning probate estate appraisal and liquidation. Other speakers and topics we are lining up include a nursing home long-term care ombudsman to discuss rights and remedies available for nursing home residents; professors from Stetson Law School to address VA benefits update and advocacy skills in the administrative hearing context; an expert in Medicare benefits to speak on important information that all elder law attorneys should know; and past chair Jack Rosenkranz to provide tips and tricks for innovative elder law researching options.

In addition to informative speakers and the opportunity to obtain continuing legal education credits, the section meetings also provide a unique opportunity to discuss your difficult cases with other elder law attorneys and talk about recent and anticipated changes in rules and federal and state laws.

We welcome suggestions for speakers or topics, and we also welcome submission of articles for publication in the Lawyer magazine. We appreciate your ideas and your participation. Please watch for upcoming announcements regarding the dates of our luncheon meetings and topics. Networking begins at 11:30 a.m. before each meeting, with luncheons beginning at noon. All luncheons will be held in the Chester H. Ferguson Law Center, 1610 N. Tampa St., Tampa FL 33602.

So please join us at our meetings, and if you have suggestions, please feel free to contact Elizabeth Allen at or (813) 877-9222, or Debra L. Dandar at or (813) 282-3390. We look forward to working with you to make 2014-2015 another outstanding year for the Elder Law Section.

Sunday, September 7, 2014

Vacancy On Florida Judicial Qualifications Commission

CONTACT: Kristen Wilson
TELEPHONE: (850) 561-5757
The Florida Bar

One attorney is needed to serve a six-year term commencing January 1, 2015, and expiring December 31, 2020. The 15-member commission is authorized under Article V, Section 12, Florida Constitution, to investigate complaints against judges whose conduct demonstrates a present unfitness to hold office and recommends disciplinary action to the Supreme Court. No member of the commission, except a judge, shall be eligible for state judicial office while acting as a member of the commission and for a period of two years thereafter. No member of the commission shall hold office in a political party or participate in any campaign for judicial office or hold public office; provided that a judge may campaign for judicial office and hold that office.

Persons interested in applying for this vacancy may click here to download the Application for Special Appointment or should call Bar headquarters at (850) 561-5757, to obtain the application form. Completed applications must be received by the Executive Director, The Florida Bar, 651 E. Jefferson St., Tallahassee FL 32399-2300, no later than the close of business on Wednesday, October 29, 2014. Resumes will not be accepted in lieu of the required application. The Board of Governors will review all applications and may request telephone or personal interviews.

Saturday, September 6, 2014

Unauthorized Workers' Compensation Disclosure Violates The ADA

By Anthony V. Cortese

First, welcome back from summer breaks and vacations. This year we have appellate cases pending before the Florida Supreme Court that we will be watching that will dramatically affect everyone in the workers’ compensation arena. Our seminars will follow these cases, as well as other important developments in the field. An important federal court decision regarding application of ADA confidentiality provisions to workers’ compensation information was announced on June 23, with implications for all claimants, adjusters, and employers as will be addressed below.
In Shoun v. Best Formed Plastics, 2014 WL2815483 (N.D. Ind. June 23, 2014), the claimant in a workers’ compensation case filed suit against his employer because the employer’s workers’ compensation processing person posted information on her Facebook page about his workers’ compensation and medical conditions that he asserted was injurious. The quote was: “Isn’t (it) amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.”

Shoun contended that by putting this on her Facebook page, the processing person violated his ADA right to confidentiality, and the court implied in the decision that this contention was clear. The employer argued that by filing an employment-related lawsuit in state court before this Facebook post was made, he voluntarily publicized his medical condition and could not pursue a suit. The District Court in Indiana did not agree and held the suit for violation of confidentiality provisions could proceed in a separate action in federal court.

The employer then argued that there was no proof of damages due to this Facebook post, and one requirement for such a suit is a tangible injury as a result of the disclosure. The court again did not agree, noting: “Mr. Shoun has alleged that as a result of Ms. Stewart’s actions,‘prospective employers refused to hire him, and he suffered emotional injury,’ both of which have been recognized as tangible injuries under the Act.” Id. (citing Green v. Joy Cone Co., 278 F. Supp. 2d 526, 537 (W.D. Pa. 2003) (explaining “[i]njury-in-fact encompasses both actual damages in the form of emotional, pecuniary, compensative, or otherwise, as well as the presence of a continuing illegal practice”)).

This means that not only the employer but also the carrier and its employees, agents, and representatives have a duty of confidentiality with regard to workers’ compensation information that is actionable if it is violated, in addition to and separate from the underlying workers’ compensation claim and any state employment law claim. It is an important decision for injured workers, employers, carriers, and their attorneys to be aware of with respect to these situations. We will update you on other important decisions as they are announced. 

Friday, September 5, 2014

Introducing The HCBA Securities Law Section

By Jared Perez

We are excited to announce that the Hillsborough County Bar Association launched a Securities Law Section beginning July 1. This is the only section of its kind in the greater Hillsborough and Pinellas County area.

Over the upcoming year, we will hold events such as luncheons and CLE-accredited panel presentations designed to provide learning and networking opportunities for attorneys and other professionals working in all aspects of the securities or financial services industries. The presentations will focus on current issues in the securities litigation, regulatory, enforcement, white-collar, and transactional arenas. 
Securities law may seem like a specialized practice area, but its reach is broader than one might imagine. For example, the anti-fraud provisions of Florida’s securities laws apply not only to the purchase or sale of a security but also to “the rendering of any investment advice.” § 517.301, Fla. Stat. That language encompasses traditional broker-dealer and investment adviser activity, but it is broad enough to reach, with some important exceptions, “any commitment of money or property principally induced by a representation that an economic benefit may be derived from such commitment.” Id. As such, commercial litigators and other business practitioners who do not specialize in securities litigation may nevertheless be interested in joining the Securities Section. 

In addition, because of this state’s relatively high population of retirees and elderly people, Floridians are all too often the targets of investment scams like Ponzi schemes. Such scams tout consistent, market-beating returns through stocks, bonds, partnership interests, and more exotic revenue streams. The Securities Law Section plans to work with regulators and practitioners to develop content of interest to practitioners who serve these populations, including financial planners, elder law practitioners, and trusts and estates attorneys. 

No matter your primary practice area, we hope you will take advantage of the opportunities offered by the Securities Law Section, and we welcome your ideas concerning how we may better serve you. Specifically, the Securities Law Section will have as many as three committees. First, the litigation committee will focus on securities litigation, including private securities fraud claims and litigation between investment professionals and their customers. Second, the regulatory committee will focus on enforcement and compliance matters; its members hope to work closely with pertinent regulators, including the Florida Office of Financial Regulation, the Securities and Exchange Commission, and the Financial Industry Regulatory Authority. Third, if there is sufficient interest, the transactional committee will focus on securities transactions, ranging from mergers and acquisitions to private and public offerings. 

Each committee will be responsible for planning and hosting at least one event per Bar year. If you are interested in being a member of the Securities Law Section or serving on a committee, please contact one of the section co-chairs, Jared Perez or Dominique Heller. If you are interested in speaking or presenting at one of our events this year or simply have a substantive topic you would like to learn more about, please let us know. With your help, we look forward to a productive and educational Bar year.

Thursday, September 4, 2014

Diversity Committee: The Benefits Of Pro Bono Work

By Victoria Cruz-Garcia

So many times we hear about how pro bono work gives us the benefit of feeling good about what we do and provides us with an opportunity to explore a new area of law. The truth of the matter is that very seldom do lawyers want to venture out of their comfort zone, preferring to take on pro bono cases in their areas of practice. Their reasoning makes sense. First, if they know what they are doing, they can obtain better results for the client. Second, if they are well versed in the area of law, the resolution of the case will take less time, which will allow the lawyer to get back to his or her billable work sooner. However, for those who take a chance and actually venture out of their comfort zone, the rewards are many.

Imagine that you are a 20-year-old single mom. When you were 14, you moved to another home to live with your mother and new stepfather. You were then raped repeatedly by your stepfather until you got pregnant. At 15, you gave birth to a boy as a result of this rape. Once the baby was born, DNA supported what you knew all along, that your stepfather was the child’s biological father. Your stepfather was arrested and took a plea deal. He was sentenced to serve five years in prison, but his parental rights were not terminated. You moved to another county, determined to put this behind you. Four years later, you learned that in less than a year, your stepfather is scheduled to be released and has already boasted to family members that, when he is released, he desires to come and visit his only son. He has told everyone in your family that he fully intends to exercise his parental rights. You are desperately seeking an attorney but cannot afford one. You need a legal advocate to come in and move to terminate the parental rights of your rapist so that you can move on and your son will never know how he was conceived, but instead how much you love him.

Sound a bit extreme? Not really; this was one of my recent pro bono cases. Knowing very little about juvenile dependency, every document, hearing, and process was a challenge. One of the most satisfying days of my career was when I heard the judge state in open court that it was in the manifest best interests of the minor child to terminate the parental rights of my client’s rapist. As my client and I walked down the courthouse hall beaming, while others just casually looked at us, I thought: If every lawyer actually knew what a difference this decision made in my client’s life, everyone would take on a pro bono case today!

Not only will the work be satisfactory, but also through your work and dedication to causes that you believe in, you will have the opportunity to meet judges and lawyers in a different area of law who may assist with your own practice in the future.

State Attorney's Message: Juvenile Drug Court

By Mark A. Ober

When a child becomes involved with drugs, it can have a ripple effect throughout many lives. School, friends, and family are all negatively impacted. The future of the child is at risk. The child may even be caught committing crimes. This can be an opportunity to intervene and make a positive impact.

There are currently over 2,600 drug courts operating in the United States. The first drug court was created in 1989.  Drug courts combine drug treatment with court monitoring and intervention in an attempt to reduce recidivism. Although more than half of the drug courts are designed for adults, there are drug courts serving juveniles as well.  Juvenile drug courts are based on the same model as adult drug courts. The drug court model combines treatment with court monitoring.

In 1996, Hillsborough County established a Juvenile Drug Court. This program was the first of its kind in Florida. It is a diversion program; if a juvenile successfully completes the program, the charges are dismissed. A juvenile may be eligible for drug court if he or she has committed a drug-related offense or if the juvenile has a history of substance abuse. Juveniles may be referred to Juvenile Drug Court by the Juvenile Assessment Center, the Hillsborough County School District, the Juvenile Arbitration Program, or when they appear before a regular juvenile division judge.

The Juvenile Drug Court program is usually 12 months long, but this can vary based on the treatment needs of the juvenile. Upon entering drug court, the juvenile will complete a contract that sets forth the requirements expected of the juvenile while in drug court. The juvenile is required to participate in treatment, submit to random urine tests, and abstain from using drugs or alcohol. A juvenile participating in drug court is expected to work toward additional positive goals that will help sustain the juvenile’s sobriety. This includes attending school or maintaining full-time employment.

The court monitors ongoing compliance with regular court hearings. During those court hearings, the court is updated on the juvenile’s progress. The court provides positive feedback to those juveniles who are complying with the program. Although failure to comply with the requirements of drug court can result in the juvenile being terminated from the program, the court also has the option of imposing less severe and more immediate consequences, such as a finding of contempt. The use of these lesser sanctions is intended to hold the juvenile accountable and provide an incentive to make positive behavioral changes while in the program.

The ultimate goal of the Juvenile Drug Court is to create a safer community. By combining drug treatment with a program of personal accountability, drug courts can reduce recidivism. As your state attorney, my goal is to protect the citizens of Hillsborough County.  

Wednesday, September 3, 2014

Second DCA Judicial Nominating Commission - Notice of Accepting Judicial Applications

CONTACT: Lara J. Tibbals, Chair,
Florida Second District Court of Appeal Judicial Nominating Commission
TELEPHONE: (813) 222-8501

The Second District Court of Appeal Judicial Nominating Commission announces two vacancies due to the creation of two new judgeships by the Florida Legislature. The Judicial Nominating Commission has been asked to provide Governor Rick Scott with nominees for the two vacancies.

Qualifications of Applicants:

Applicants must be residents of the territorial jurisdiction of the Court at the time he or she would assume office, electors of the State of Florida and members of The Florida Bar for the preceding ten (10) years.

Instructions for Submission:

1. Current Judicial Applications must be used and can be downloaded in Word version from The Florida Bar’s website.

2. The completed application must be typed and bound. The inclusion of a photograph is encouraged.

3. In addition to the original application, applicants must provide the following: (i) ten copies of the original application, (ii) one electronic copy of the original application on a flash drive in PDF format; and (iii) one printed redacted copy excluding all exempt information under Chapter 119 of the Florida Statutes or other applicable public records law. All printed copies should be two-sided.

4. The completed application, attachments and flash drive must be delivered to Lara J. Tibbals, Chair, Second District Court of Appeal Judicial Nominating Commission, 101 E. Kennedy Blvd., Suite 3700, Tampa, Florida 33602.

5. The deadline for submission of the completed application is 5:00 p.m., Monday, September 29, 2014. Applications submitted after the deadline will not be considered.

Additional Information:

After the deadline for submitting applications, the Commission will determine which applicants to interview. Applicants will be contacted to confirm the date, time and location.

All proceedings of the Commission are open to the public, except for deliberations. Applicants should not expect their applications to be kept confidential.

If an applicant is nominated, all materials attached to the original application will be submitted to the Governor.

A list of members of the Second District Court of Appeal Judicial Nominating Commission is available from The Florida Bar’s website.

Members of the bench, the Bar and the public are urged to contact the members of the Commission concerning applicants for judicial positions.

If you have any questions, please call Mrs. Tibbals at (813) 222-8501.

Tuesday, September 2, 2014

YLD President's Message: Opportunities Available Through The YLD

By Anthony "Nino" Martino

As president of the Young Lawyers Division, I would like to encourage all young lawyers to get more involved professionally and to help us make a difference in Hillsborough County. We have one of the largest and strongest young lawyers divisions in the state, which enables us to provide a wide array of opportunities to not only network with other lawyers and judges but to help the less fortunate in Hillsborough County.

If you are interested in the networking aspect of our bar association, then I encourage you to attend the YLD’s Happy Hours, Quarterly Luncheons, Coffee at the Courthouse, Golf Tournament, Cornhole Tournament, and the YLD’s booth at the Judicial Pig Roast/Food Festival. Coffee at the Courthouse allows young lawyers an opportunity to interact with the judiciary from Hillsborough County in an informal setting, and the Cornhole Tournament is held annually in partnership with Big Brothers Big Sisters to raise funds and awareness for the group’s programs in the local community.

If you prefer programs designed to help you grow professionally, then you may be interested in our Judicial Shadowing Program, State Court Trial Seminar, or the 13th Circuit Mentoring Program. Judicial Shadowing provides the opportunity for young lawyers to shadow judges through trials and proceedings while receiving mentoring directly from the bench. The State Court Trial Seminar focuses on trial practice/skills and is presented by many top trial attorneys in Hillsborough County. The mentoring program provides young lawyers with meaningful access to experienced lawyers for guidance.

If you would like to give back to our community, then I recommend Wills for Heroes, the Attorney Ad Litem Program, Family Forms Clinic, Holidays in January, Steak and Sports Day, Luncheon Program at Rampello Downtown Partnership School, Law Week and the High School Mock Trial Competition. Holidays in January brings together foster children, foster parents, and young lawyers in the Tampa Bay area for a fun-filled day of activities and holiday gift-giving. During Law Week, the YLD offers tours of the courthouse, mock trials, and classroom speaking engagements for the children of Hillsborough County. Steak and Sports Day is a day of grilling and outdoor fun with local abandoned, abused, neglected, and orphaned children.

YLD members not only attend but help plan these projects and events, so if you would like to assist, please join one of our committees. Our events can always use more volunteers and new faces as we continue to enhance our programming. For more information, go to the YLD link found at or visit our Facebook page. We look forward to your involvement in the YLD as we continue our tradition of making a difference in Hillsborough County!

Please note the upcoming annual Golf Tournament in October. We expect a full field as we have had in the past, so make sure to get your registration in and take advantage of the early-bird discount. The tournament is open to lawyers and non-lawyers, so encourage your shareholders, colleagues, clients, and friends to join us on the course.

As the incoming president, I am excited to continue the YLD events that have defined our organization over the years, as well as enhance their reach.  However, the extent of our reach is limited only by the participation of our members.  

Monday, September 1, 2014

Criminal Law: A Freedom-Destroying Cocktail - Uncorroborated Anonymous Tips

By Joseph A. Eustace

When man bites dog, it’s news. See Bartlett's Familiar Quotations 554 (Justin Kaplin ed., Boston, London, and Toronto: Little, Brown 16th ed.) When Justices Antonin Scalia and Clarence Thomas write opinions on opposite sides of an issue, that’s news, too.

In the recent case of Navarette v. California, 134 S. Ct. 1683 (2014), Justice Scalia dissented from Justice Thomas’ majority opinion upholding an anonymous tip as the basis for a traffic stop and search. Justice Scalia’s dissent — joined by Justices Ginsburg, Sotomayor, and Kagan — harshly criticized the majority’s decision, even referring to it, in classic Scalia-esque style, as a “freedom-destroying cocktail,” consisting of ... “patent falsity.” Id. at 1697.

Navarette arose from an anonymous tip—phoned in by a motorist via 911—claiming that another car had run her off the road. The tipster provided a description of the car but otherwise remained anonymous. The California Highway Patrol responded to the tip but did not corroborate it before stopping the car for suspicion of driving under the influence. While conceding an “anonymous tip alone seldom demonstrates sufficient reliability,” id. at 1688 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)), the court nevertheless upheld the anonymous tip by distinguishing its decision in Florida v. J.L., where the court held an anonymous bare-bones tip “that a young male in a plaid shirt standing at a bus stop was carrying a gun” was not sufficiently reliable to support a search. Id. (contrasting Florida v. J.L., 529 U.S. 266, 268 (2000)).

In his dissent, Justice Scalia principally focused on the fact that the anonymous tip was, in his view, completely uncorroborated by the arresting officer, rightly pointing out that if the officer had observed a single violation of the traffic laws, “this case would not be before us.” Id. at 1696 (citing Whren v. United States, 517 U.S. 806, 810 (1996)). But Justice Scalia saved perhaps his harshest criticism for the majority’s reasoning that the lack of additional suspicious conduct (i.e., corroboration) is “hardly surprising”—and thus “largely irrelevant”—because drunk drivers may drive “more carefully” to avoid detection: “That is not how I understand the influence of alcohol. I subscribe to the more traditional view that the dangers of intoxicated driving are the intoxicant’s impairing effects on the body—effects that no mere act of the will can resist.” Id. at 1697. Scalia concluded: “To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops. We should not do so for drunken driving either.” Id.

This case marks a potentially significant change in Fourth Amendment precedent in Florida. According to Scalia, Navarette lowers the justification necessary for police intrusion. And Florida Fourth Amendment decisions must confirm to Supreme Court pronouncements. Art. I, § 12, Fla. Const. see also Baptiste v. State, 995 So. 2d 285, 296-97 (Fla. 2008) (relying on Florida v. J.L., 529 U. S. 266 (2000) in holding that anonymous tip did not provide reasonable suspicion justifying investigative stop). Thomas and Scalia, however, rarely disagree on such issues, which makes Navarette very unusual and leads one to wonder who was right: Justice Thomas or Justice Scalia.