Cultural competence is essential to developing, attracting, and
retaining top talent. It is the key to fostering an energized, optimally
productive work environment. It also supports business growth and promotes
strong community networks.
Stetson University College of Law invites the local legal community to participate in the Inclusion Summit: Developing Cultural Competence, a one-day event on Feb. 6, 2015, featuring national thought leaders who will share best practices in inclusion and cultural competence for individuals and organizations. The daylong program begins at 8:30 a.m., concluding at 5 p.m. with a cocktail reception and networking opportunity from 5 to 7 p.m.
The highlight of the Inclusion Summit will be Vernā Myers, a nationally recognized expert on diversity and inclusion. Myers is a dynamic speaker, author, and advisor on creating a culture of inclusion. She will be joined by other industry leaders, including Andrew Corty, president and publisher of Florida Trend.
Sessions and topics include:
- What If I Say the Wrong Thing?
- Habits for Culturally Effective People
- The Changing Face of Florida
- The Personal and Professional Value of Creating a Culture of Inclusion
- Panels sharing best practices for making inclusion a reality
The early registration rate ends Dec. 12, with seating limited to the first 200 participants.
For information, visit www.stetson.edu/inclusionsummit.
Tuesday, December 9, 2014
Monday, December 8, 2014
Marital And Family Law: Are All Sales Final? Enforceability Of A Marital Agreement
By Richard J. Mackler
In family law, perhaps more so than most practice areas, people sign financial agreements based on emotions, inappropriate or misguided expectations, or other reasons far afield from the terms of the deal.
People also sign agreements at very different stages of the marital relationship life cycle. A young bride-to-be may sign a prenuptial agreement thinking that her fiancé will take care of her forever. A party may sign a post-nuptial or marital settlement agreement thinking that doing so will save their marriage. Some parties to a crumbling relationship will sign an agreement due to pressure and without understanding their legal rights. Others will not sign anything until their lawyer has filed for divorce, taken extensive discovery, and thoroughly analyzed the parties’ incomes, assets, and liabilities. The stage at which a marital agreement is executed is an important factor in determining whether the agreement is enforceable.
Two parties who are married or contemplating marriage are in a fiduciary relationship that requires them to act with a heightened obligation of good faith. See Del Vecchio v. Del Vecchio, 143 So. 2d 17, 21 (Fla. 1962). These parties are not dealing at arm’s length, and courts must carefully examine their circumstances to determine the validity of their agreements. Courts recognize that there is a “vast difference between a contract made in the market place and one relating to the institution of marriage.” Lashkajani v. Lashkajani, 911 So. 2d 1154, 1158 (Fla. 2005).
A marital settlement agreement, like any contract, may be set aside where the agreement is the product of fraud, deceit, duress, coercion, misrepresentation, or overreaching. See Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987).
Pre-marital agreements, post-nuptial agreements, and marital settlement agreements executed before the parties enter into contested litigation may also be set aside where the agreement is unreasonable or unfair and the challenging spouse did not have adequate financial disclosure. See Casto, 508 So. 2d at 334-35. In making this determination, a court will presume that any financial disclosure was unfair. The court may also look at whether there was pressure surrounding the signing of the agreement, the value of the parties’ respective interests, the disparity between the business experience of the parties, and whether the objecting party had approximate knowledge of the marital assets and liabilities at the relevant time. See, e.g., Kearney v. Kearney, 129 So. 3d 381, 386 (Fla. 1st DCA 2013).
Once the parties are “in litigation,” they are no longer dealing with one another as fiduciaries, and the agreement will not be set aside simply because the terms might be viewed as unfair. See Petracca v. Petracca, 706 So. 2d 904, 911 (Fla. 4th DCA 1998). In litigation, parties are entitled to enter into bad agreements. And, after the parties have had access to discovery procedures, any attempt to set aside a settlement agreement must satisfy the more stringent standard set forth in Florida Rule of Civil Procedure 1.540. See Macar v. Macar, 803 So. 2d 707, 712-13 (Fla. 2001).
In family law, perhaps more so than most practice areas, people sign financial agreements based on emotions, inappropriate or misguided expectations, or other reasons far afield from the terms of the deal.
People also sign agreements at very different stages of the marital relationship life cycle. A young bride-to-be may sign a prenuptial agreement thinking that her fiancé will take care of her forever. A party may sign a post-nuptial or marital settlement agreement thinking that doing so will save their marriage. Some parties to a crumbling relationship will sign an agreement due to pressure and without understanding their legal rights. Others will not sign anything until their lawyer has filed for divorce, taken extensive discovery, and thoroughly analyzed the parties’ incomes, assets, and liabilities. The stage at which a marital agreement is executed is an important factor in determining whether the agreement is enforceable.
Two parties who are married or contemplating marriage are in a fiduciary relationship that requires them to act with a heightened obligation of good faith. See Del Vecchio v. Del Vecchio, 143 So. 2d 17, 21 (Fla. 1962). These parties are not dealing at arm’s length, and courts must carefully examine their circumstances to determine the validity of their agreements. Courts recognize that there is a “vast difference between a contract made in the market place and one relating to the institution of marriage.” Lashkajani v. Lashkajani, 911 So. 2d 1154, 1158 (Fla. 2005).
A marital settlement agreement, like any contract, may be set aside where the agreement is the product of fraud, deceit, duress, coercion, misrepresentation, or overreaching. See Casto v. Casto, 508 So. 2d 330, 333 (Fla. 1987).
Pre-marital agreements, post-nuptial agreements, and marital settlement agreements executed before the parties enter into contested litigation may also be set aside where the agreement is unreasonable or unfair and the challenging spouse did not have adequate financial disclosure. See Casto, 508 So. 2d at 334-35. In making this determination, a court will presume that any financial disclosure was unfair. The court may also look at whether there was pressure surrounding the signing of the agreement, the value of the parties’ respective interests, the disparity between the business experience of the parties, and whether the objecting party had approximate knowledge of the marital assets and liabilities at the relevant time. See, e.g., Kearney v. Kearney, 129 So. 3d 381, 386 (Fla. 1st DCA 2013).
Once the parties are “in litigation,” they are no longer dealing with one another as fiduciaries, and the agreement will not be set aside simply because the terms might be viewed as unfair. See Petracca v. Petracca, 706 So. 2d 904, 911 (Fla. 4th DCA 1998). In litigation, parties are entitled to enter into bad agreements. And, after the parties have had access to discovery procedures, any attempt to set aside a settlement agreement must satisfy the more stringent standard set forth in Florida Rule of Civil Procedure 1.540. See Macar v. Macar, 803 So. 2d 707, 712-13 (Fla. 2001).
Friday, December 5, 2014
Labor And Employment Law: Recent Developments In Pregnancy Discrimination Law
By Andrew W. McLaughlin
On July 14, the Equal Employment Opportunity Commission issued new enforcement guidance for pregnancy discrimination. The guidance addressed a number of pregnancy-related employment issues, including when an employer is obligated to offer light duty to pregnant employees. Under the Pregnancy Discrimination Act (PDA), employers must treat pregnant employees the same “as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). Generally, if an employer provides light duty to other disabled employees, the employer must provide light duty to pregnant employees. Employers that offer light duty may place reasonable restrictions on the light duty, such as limits on the number of light-duty positions or the duration of light-duty assignments so long as the restrictions are equally applied to both pregnant and non-pregnant employees.
The law is unsettled on whether employers that only offer light duty to employees injured on the job must also offer light duty to pregnant employees who require it, even if the employer does not offer light duty to employees with non-job-related injuries.
In its July 14 enforcement guidance, the EEOC takes the position that if an employer offers light duty to any other employee, it must similarly offer light duty to pregnant employees on the same terms. The guidance states that a policy that distinguishes between pregnant and non-pregnant workers who are similar in their ability or inability to work based on the cause of the employee’s limitation violates the PDA. The EEOC also suggests in the enforcement guidance that policies limiting light duty to employees injured on the job may have an adverse impact against pregnant employees and women.
The EEOC’s position in its enforcement guidance is contrary to Eleventh Circuit precedent, which has held that employees injured on the job may be treated differently from employees with non-work-related conditions including pregnancy. See Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1313 (11th Cir. 1999), Abbott v. Elwood Staffing Servs., 2014 U.S. Dist. 2014 WL 3809808 (N.D. Ala. July 31, 2014). The Fourth, Fifth, Seventh, and Eighth Circuits follow the Eleventh Circuit. The Sixth and Tenth Circuit follow the position in the EEOC guidance.
The Supreme Court will address the circuit split on this issue when it reviews the Fourth Circuit’s ruling in Young v. UPS, 707 F.3d 437 (4th Cir. 2013). In Young, which involved an employee challenging the light-duty policies, UPS offered light duty for individuals with workplace injuries but did not offer light duty to individuals with non-work-related injuries or physical conditions, including pregnancy. The district court held that UPS’s policy treated both pregnant workers and non-pregnant workers the same and therefore was not discriminatory. The Fourth Circuit upheld the district court’s ruling. The Supreme Court will likely hear the case during its 2015 spring term.
On July 14, the Equal Employment Opportunity Commission issued new enforcement guidance for pregnancy discrimination. The guidance addressed a number of pregnancy-related employment issues, including when an employer is obligated to offer light duty to pregnant employees. Under the Pregnancy Discrimination Act (PDA), employers must treat pregnant employees the same “as other persons not so affected but similar in their ability or inability to work.” 42 U.S.C. § 2000e(k). Generally, if an employer provides light duty to other disabled employees, the employer must provide light duty to pregnant employees. Employers that offer light duty may place reasonable restrictions on the light duty, such as limits on the number of light-duty positions or the duration of light-duty assignments so long as the restrictions are equally applied to both pregnant and non-pregnant employees.
The law is unsettled on whether employers that only offer light duty to employees injured on the job must also offer light duty to pregnant employees who require it, even if the employer does not offer light duty to employees with non-job-related injuries.
In its July 14 enforcement guidance, the EEOC takes the position that if an employer offers light duty to any other employee, it must similarly offer light duty to pregnant employees on the same terms. The guidance states that a policy that distinguishes between pregnant and non-pregnant workers who are similar in their ability or inability to work based on the cause of the employee’s limitation violates the PDA. The EEOC also suggests in the enforcement guidance that policies limiting light duty to employees injured on the job may have an adverse impact against pregnant employees and women.
The EEOC’s position in its enforcement guidance is contrary to Eleventh Circuit precedent, which has held that employees injured on the job may be treated differently from employees with non-work-related conditions including pregnancy. See Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1313 (11th Cir. 1999), Abbott v. Elwood Staffing Servs., 2014 U.S. Dist. 2014 WL 3809808 (N.D. Ala. July 31, 2014). The Fourth, Fifth, Seventh, and Eighth Circuits follow the Eleventh Circuit. The Sixth and Tenth Circuit follow the position in the EEOC guidance.
The Supreme Court will address the circuit split on this issue when it reviews the Fourth Circuit’s ruling in Young v. UPS, 707 F.3d 437 (4th Cir. 2013). In Young, which involved an employee challenging the light-duty policies, UPS offered light duty for individuals with workplace injuries but did not offer light duty to individuals with non-work-related injuries or physical conditions, including pregnancy. The district court held that UPS’s policy treated both pregnant workers and non-pregnant workers the same and therefore was not discriminatory. The Fourth Circuit upheld the district court’s ruling. The Supreme Court will likely hear the case during its 2015 spring term.
Thursday, December 4, 2014
Special Feature: Parting Words Of Chief Judge Manuel Menendez Jr.
By David A. Rowland
The Final Jeopardy!® clue:
THIS AWARD-WINNING DOUBLE-DEGREE GATOR, WHO AFTER LAW SCHOOL WORKED IN JACKSONVILLE AND THEN RELOCATED TO HIS HOMETOWN OF TAMPA, SPENT MORE THAN 31 YEARS ON THE JUDICIAL BENCH, THE LAST 13½ YEARS OF WHICH WERE AS CHIEF JUDGE OF THE THIRTEENTH JUDICIAL CIRCUIT.
If your Final Jeopardy! ® answer is “Who is Chief Judge Manuel Menendez Jr.?” then you win the grand prize.
Appointed to the county bench in 1983 and to the circuit bench the following year, Judge Menendez was unanimously elected as chief judge in 2001 and has served in this leadership position ever since. Judge Menendez is a past recipient of the Robert W. Patton Outstanding Jurist Award, served as past chair of the Conference of Circuit Judges of Florida, and is past chair of several Florida Bar committees. While with the U.S. Attorney’s Office, he was active in the Federal Bar Association, serving as vice president of the Jacksonville chapter and president of the Tampa Bay chapter. A big proponent of legal education and judicial education, he served several years on the faculty of the Florida Judicial College, the Prosecutor/Public Defender Trial Training Program at the University of Florida College of Law, and The Florida Bar Advanced Civil Trial Advocacy Program. Since becoming chief judge, he has served as chair of this circuit’s Professionalism Committee. Judge Menendez is also an active member of the J. Clifford Cheatwood American Inn of Court and the Herbert G. Goldberg-Ronald K. Cacciatore Criminal Law American Inn of Court.
In light of Chief Judge Menendez’s retirement in December, and with apologies to Tom Elligett for borrowing his interview-style approach to getting answers readers of the Lawyer magazine want to know, Judge Menendez good-naturedly agreed to the following interview with David Rowland, general counsel of the Thirteenth Judicial Circuit.
You have seen many changes in the legal profession during your more than 30 years on the bench. What do you think is the most profound change in the courts since you became chief judge?
There are two things that stand out as sea changes to the courts during my tenure as chief judge. First and foremost was our undergoing a big shift in how our court system was to be funded with the passage of what was then called Revision Seven to Article Five of our Florida Constitution. Revision Seven reallocated the responsibility for funding of the state court system, placing a majority of that on the state of Florida. Prior to then, we received a majority of our funding from the 67 counties. When considering implementing legislation, the Legislature began the process of designing what the court system would consist of in the future. Consequently, there was a great deal of effort focused on convincing them to include, for example, positions such as court counsel. We pushed for a court system model in which we would have certain elements included. We wanted court administration, due process positions (court reporters and interpreters), court counsel, staff attorneys, magistrates, and hearing officers – a myriad of positions that were essential to providing the public with a court system they deserved. We were largely very successful.
Then, of course, we had the problem of funding the court system. Adequately funding of the court system has been a bit of a struggle through the years, especially during the most recent economic setback. We all suffered through it just like everybody else in the state and the country.
The next biggest area of change is what we are currently experiencing with our court system evolving into the electronic era – the advent of mandatory e-filing, leading ultimately to no paper court files.
What do you see as the biggest challenge facing the courts in the next five to 10 years?
Unfortunately, once again, funding appears to be the key issue. It seems like we have to re-educate the Legislature every year as to what we do, why we do it, and why we need the funding. In large part, this is because of the term limits that we have with our Legislature. There is not much institutional memory up there in Tallahassee. But getting past that, I believe we’re going to be having some issues in the future with continued increased filings. We haven’t yet finished dealing with the foreclosure mess for example; we have a backlog of cases there. Processing cases in a timely manner so that the public is able to access the courts is extremely important. We’re also going to have to learn to deal with the electronic age a little bit better.
What is your best advice for young lawyers just starting their careers in today’s legal culture?
I would advise young lawyers to seek out a mentor, someone who has some experience, who’s respected. Watch experienced lawyers perform the trade. Try to spend as much time as you can learning. Also, don’t shortchange your clients. Communicate with them. Return their phone calls. Avoid the mistake of not being answerable to your clients. Always seek to learn, to engage. Join the HCBA. Meet others in the profession; keep it collegial. It is a collegial profession; it is supposed to be. Avoid getting pulled into the mud as is sometimes seen with some of our lawyers who for some reason feel like it is a trial by ambush, a war with hatchets and axes. It shouldn’t be that way. It has always been a collegial profession, and we should all strive to maintain that.
I know you have lots of memorable stories of your time on the bench and have handled thousands of cases during your judicial career. What is one of your fondest memories of your time on the bench?
I have many fond memories, and most of them deal with the investiture ceremonies for new judges. They are always very interesting, and I always learn something I did not know about a new colleague each time. These ceremonies are also a lot of fun. I’ve had the opportunity to actually preside over 40 investiture ceremonies of new judges since I became chief judge, and I attended many others before then. Every single one has been a wonderful experience.
What do you think was the most impactful decision you made while on the bench?
Every decision that a judge makes has a significant impact on the litigants, if nobody else. Going beyond that, some decisions are impactful because of the impact they may have on the community as a whole or because of some precedential value. Although there may be a number of decisions that fit into that category, two come to mind as I sit here talking with you.
One is the case involving the city of Tampa’s human rights ordinance. In the 1990s, the city had passed a human rights ordinance prohibiting discrimination on the basis of, among other things, sexual orientation. Subsequently, there was a petition circulating that, with enough signatures, would place on the ballot a referendum repealing that portion of the ordinance that banned discrimination based on sexual orientation. A lawsuit was commenced seeking removal of the referendum from the ballot, and I was assigned the case. And I made the decision to remove the referendum from the ballot because the law required that the wording on the ballot referendum be the exact same language as that used in the petition for obtaining signatures for the referendum. And there were some slight differences in the language. That decision was affirmed on appeal. The matter was not voted on, and the ordinance was never again attempted to be repealed.
Another case that comes to mind is one that dealt with child support enforcement orders. One of the parents had funds in a city firefighters and police union pension. An argument was made that the pension fund was exempt from garnishment because the fund was passed by special law and the special law exempted the pension fund from garnishment. I found, contrary to what other judges across the state had found, that the retirement benefits in pension funds were subject to garnishment because the general law enacted after the special law specifically included pension funds in the definition of “income.” The pension fund board of trustees appealed to the Second DCA, which reversed the decision, but the appellate court certified a question of great public importance to the Florida Supreme Court. The Florida Supreme Court noted that the trial court’s finding – that when a special law and a subsequent general law conflict, the latest expression of legislative intent controls – was correct, and the Second DCA was wrong. This was another impactful decision if for no other reason it provides me the opportunity to occasionally but good-naturedly harass my colleagues at the Second DCA.
During your first few months as chief judge, I recall you saying that you had not realized the scope of responsibilities of the chief judge. What are people’s biggest misperceptions about the chief judge position?
Some people have a misunderstanding that a chief judge is like the “chief” of judges and is akin to an appellate court. These folks believe that the chief judge is empowered to change a decision of a trial judge with the stroke of a pen. Thankfully, that of course, is not the case. A chief judge does have the privilege of developing relationships with our county commissioners, state legislators, state attorney, public defender, sheriff, and the clerk of court with the goal of creating the best court system in the state! But we all know that the real function of the chief judge is to sit at the head table at Bar luncheons!
The Tampa Bay area has grown tremendously during your judicial career. Our area offers a variety of activities, events, and eateries. Tell us what you like to do in your free time.
I enjoy reading novels and the daily newspapers, and on occasion I watch a little television. My favorite show, Breaking Bad, recently ended. I thought it was one of the greatest shows ever on TV. I have not gotten into another series yet, but people tell me I should watch The Wire. Because of the wonderful weather we have, I also enjoy going out for a little jog or a walk periodically during the week to get the juices flowing. Recently I took some kayaking lessons and enjoy that when there is good weather. I also enjoy going out and catching a Rays game on occasion. I haven’t played golf in years, but maybe I’ll see if I can find my clubs and take that up again. There are a whole slew of restaurants that are wonderful in the area, but unfortunately one of my favorite ones just closed down, that being CDB’s Southside on Westshore. Hopefully at some point Pat Iacovella will relocate. And although not necessarily in the Tampa Bay area, I enjoy traveling about two hours up the road to Gainesville to enjoy intercollegiate sporting activities.
Speaking of Gainesville, your double-degree Gator background is well known, having graduated from the University of Florida in 1969 and UF’s College of Law in 1972. What many people probably do not realize is the extent to which your office is furnished with virtually every type of Gator memorabilia that exists. Where are you going to display all of these memorabilia upon your retirement?
Well, I don’t think I have all that much paraphernalia in here. But the big problem will be finding a location. Maybe I’ll have an auction or take them up to Gainesville and sell them out of the back of my truck at a Gator game. I think I’ll be allowed to keep some of the stuff in the house but not all. I’ll have to negotiate that.
After more than three decades on the bench, what are your retirement plans?
Three decades? Wow! My retirement plans are still a work in progress. I’d like to travel some, maybe do some teaching. I serve on some charitable boards and would like to continue with that and perhaps do some other volunteer work. I may try my hand at mediation and arbitration and maybe even practice some law. One thing I will not do is try to run a marathon! I will stick to an occasional 5K race! And I am contemplating writing a book exposing all the secrets of our court counsel!
[The author is convinced that our soon-to-be-former chief judge would be more concerned about this author contemplating writing a book concerning the judge’s secrets than vice versa!]
The Final Jeopardy!® clue:
THIS AWARD-WINNING DOUBLE-DEGREE GATOR, WHO AFTER LAW SCHOOL WORKED IN JACKSONVILLE AND THEN RELOCATED TO HIS HOMETOWN OF TAMPA, SPENT MORE THAN 31 YEARS ON THE JUDICIAL BENCH, THE LAST 13½ YEARS OF WHICH WERE AS CHIEF JUDGE OF THE THIRTEENTH JUDICIAL CIRCUIT.
If your Final Jeopardy! ® answer is “Who is Chief Judge Manuel Menendez Jr.?” then you win the grand prize.
In light of Chief Judge Menendez’s retirement in December, and with apologies to Tom Elligett for borrowing his interview-style approach to getting answers readers of the Lawyer magazine want to know, Judge Menendez good-naturedly agreed to the following interview with David Rowland, general counsel of the Thirteenth Judicial Circuit.
You have seen many changes in the legal profession during your more than 30 years on the bench. What do you think is the most profound change in the courts since you became chief judge?
There are two things that stand out as sea changes to the courts during my tenure as chief judge. First and foremost was our undergoing a big shift in how our court system was to be funded with the passage of what was then called Revision Seven to Article Five of our Florida Constitution. Revision Seven reallocated the responsibility for funding of the state court system, placing a majority of that on the state of Florida. Prior to then, we received a majority of our funding from the 67 counties. When considering implementing legislation, the Legislature began the process of designing what the court system would consist of in the future. Consequently, there was a great deal of effort focused on convincing them to include, for example, positions such as court counsel. We pushed for a court system model in which we would have certain elements included. We wanted court administration, due process positions (court reporters and interpreters), court counsel, staff attorneys, magistrates, and hearing officers – a myriad of positions that were essential to providing the public with a court system they deserved. We were largely very successful.
Then, of course, we had the problem of funding the court system. Adequately funding of the court system has been a bit of a struggle through the years, especially during the most recent economic setback. We all suffered through it just like everybody else in the state and the country.
The next biggest area of change is what we are currently experiencing with our court system evolving into the electronic era – the advent of mandatory e-filing, leading ultimately to no paper court files.
What do you see as the biggest challenge facing the courts in the next five to 10 years?
Unfortunately, once again, funding appears to be the key issue. It seems like we have to re-educate the Legislature every year as to what we do, why we do it, and why we need the funding. In large part, this is because of the term limits that we have with our Legislature. There is not much institutional memory up there in Tallahassee. But getting past that, I believe we’re going to be having some issues in the future with continued increased filings. We haven’t yet finished dealing with the foreclosure mess for example; we have a backlog of cases there. Processing cases in a timely manner so that the public is able to access the courts is extremely important. We’re also going to have to learn to deal with the electronic age a little bit better.
What is your best advice for young lawyers just starting their careers in today’s legal culture?
I would advise young lawyers to seek out a mentor, someone who has some experience, who’s respected. Watch experienced lawyers perform the trade. Try to spend as much time as you can learning. Also, don’t shortchange your clients. Communicate with them. Return their phone calls. Avoid the mistake of not being answerable to your clients. Always seek to learn, to engage. Join the HCBA. Meet others in the profession; keep it collegial. It is a collegial profession; it is supposed to be. Avoid getting pulled into the mud as is sometimes seen with some of our lawyers who for some reason feel like it is a trial by ambush, a war with hatchets and axes. It shouldn’t be that way. It has always been a collegial profession, and we should all strive to maintain that.
I know you have lots of memorable stories of your time on the bench and have handled thousands of cases during your judicial career. What is one of your fondest memories of your time on the bench?
I have many fond memories, and most of them deal with the investiture ceremonies for new judges. They are always very interesting, and I always learn something I did not know about a new colleague each time. These ceremonies are also a lot of fun. I’ve had the opportunity to actually preside over 40 investiture ceremonies of new judges since I became chief judge, and I attended many others before then. Every single one has been a wonderful experience.
What do you think was the most impactful decision you made while on the bench?
Every decision that a judge makes has a significant impact on the litigants, if nobody else. Going beyond that, some decisions are impactful because of the impact they may have on the community as a whole or because of some precedential value. Although there may be a number of decisions that fit into that category, two come to mind as I sit here talking with you.
One is the case involving the city of Tampa’s human rights ordinance. In the 1990s, the city had passed a human rights ordinance prohibiting discrimination on the basis of, among other things, sexual orientation. Subsequently, there was a petition circulating that, with enough signatures, would place on the ballot a referendum repealing that portion of the ordinance that banned discrimination based on sexual orientation. A lawsuit was commenced seeking removal of the referendum from the ballot, and I was assigned the case. And I made the decision to remove the referendum from the ballot because the law required that the wording on the ballot referendum be the exact same language as that used in the petition for obtaining signatures for the referendum. And there were some slight differences in the language. That decision was affirmed on appeal. The matter was not voted on, and the ordinance was never again attempted to be repealed.
Another case that comes to mind is one that dealt with child support enforcement orders. One of the parents had funds in a city firefighters and police union pension. An argument was made that the pension fund was exempt from garnishment because the fund was passed by special law and the special law exempted the pension fund from garnishment. I found, contrary to what other judges across the state had found, that the retirement benefits in pension funds were subject to garnishment because the general law enacted after the special law specifically included pension funds in the definition of “income.” The pension fund board of trustees appealed to the Second DCA, which reversed the decision, but the appellate court certified a question of great public importance to the Florida Supreme Court. The Florida Supreme Court noted that the trial court’s finding – that when a special law and a subsequent general law conflict, the latest expression of legislative intent controls – was correct, and the Second DCA was wrong. This was another impactful decision if for no other reason it provides me the opportunity to occasionally but good-naturedly harass my colleagues at the Second DCA.
During your first few months as chief judge, I recall you saying that you had not realized the scope of responsibilities of the chief judge. What are people’s biggest misperceptions about the chief judge position?
Some people have a misunderstanding that a chief judge is like the “chief” of judges and is akin to an appellate court. These folks believe that the chief judge is empowered to change a decision of a trial judge with the stroke of a pen. Thankfully, that of course, is not the case. A chief judge does have the privilege of developing relationships with our county commissioners, state legislators, state attorney, public defender, sheriff, and the clerk of court with the goal of creating the best court system in the state! But we all know that the real function of the chief judge is to sit at the head table at Bar luncheons!
The Tampa Bay area has grown tremendously during your judicial career. Our area offers a variety of activities, events, and eateries. Tell us what you like to do in your free time.
I enjoy reading novels and the daily newspapers, and on occasion I watch a little television. My favorite show, Breaking Bad, recently ended. I thought it was one of the greatest shows ever on TV. I have not gotten into another series yet, but people tell me I should watch The Wire. Because of the wonderful weather we have, I also enjoy going out for a little jog or a walk periodically during the week to get the juices flowing. Recently I took some kayaking lessons and enjoy that when there is good weather. I also enjoy going out and catching a Rays game on occasion. I haven’t played golf in years, but maybe I’ll see if I can find my clubs and take that up again. There are a whole slew of restaurants that are wonderful in the area, but unfortunately one of my favorite ones just closed down, that being CDB’s Southside on Westshore. Hopefully at some point Pat Iacovella will relocate. And although not necessarily in the Tampa Bay area, I enjoy traveling about two hours up the road to Gainesville to enjoy intercollegiate sporting activities.
Speaking of Gainesville, your double-degree Gator background is well known, having graduated from the University of Florida in 1969 and UF’s College of Law in 1972. What many people probably do not realize is the extent to which your office is furnished with virtually every type of Gator memorabilia that exists. Where are you going to display all of these memorabilia upon your retirement?
Well, I don’t think I have all that much paraphernalia in here. But the big problem will be finding a location. Maybe I’ll have an auction or take them up to Gainesville and sell them out of the back of my truck at a Gator game. I think I’ll be allowed to keep some of the stuff in the house but not all. I’ll have to negotiate that.
After more than three decades on the bench, what are your retirement plans?
Three decades? Wow! My retirement plans are still a work in progress. I’d like to travel some, maybe do some teaching. I serve on some charitable boards and would like to continue with that and perhaps do some other volunteer work. I may try my hand at mediation and arbitration and maybe even practice some law. One thing I will not do is try to run a marathon! I will stick to an occasional 5K race! And I am contemplating writing a book exposing all the secrets of our court counsel!
[The author is convinced that our soon-to-be-former chief judge would be more concerned about this author contemplating writing a book concerning the judge’s secrets than vice versa!]
Judicial Vacancy On Hillsborough County Circuit Court
The Thirteenth Circuit Judicial Nominating Commission has announced a vacancy on
the Hillsborough County Circuit Court, created by the retirement of Judge Debra
Behnke. The commission is now accepting applications for one circuit court judge position. To be appointed, applicants must be residents of
Hillsborough County, registered voters, and members of The Florida Bar for
the past five years.
Applications can be downloaded from The Florida Bar's website. Applicants will be asked to provide their names, addresses, telephone and fax numbers, and e-mail addresses to facilitate communication with the commission.
Applicants must submit a fully completed original and one copy of the application, along with a photograph attached to the original and to the copy, to Terri Gaffney, chair of the Thirteenth Circuit Judicial Nominating Commission, 1311 N. Westshore Blvd., Suite 101, Tampa FL 33607, no later than 5 p.m. December 29. Incomplete applications will not be considered.
In addition to the original and one copy, applicants are requested to provide one electronic unredacted (PDF) copy of the application and one electronic redacted (PDF) copy of the application. Any material redacted by the applicant must be limited to exempt or confidential information pursuant to Chapter 119, Florida Statutes, Florida’s Public Records Law.
Applicants and the public will be advised in subsequent news releases of dates of commission meetings related to filling this vacancy. The commission will submit the names of nominees for this vacant judgeship to Governor Rick Scott by February 2, 2015.
A list of members of the Thirteenth Circuit Judicial Nominating Commission is available from The Florida Bar’s website. Questions should be directed to Gaffney at (813) 287-1159 or terri@overstreetwealth.com.
Applications can be downloaded from The Florida Bar's website. Applicants will be asked to provide their names, addresses, telephone and fax numbers, and e-mail addresses to facilitate communication with the commission.
Applicants must submit a fully completed original and one copy of the application, along with a photograph attached to the original and to the copy, to Terri Gaffney, chair of the Thirteenth Circuit Judicial Nominating Commission, 1311 N. Westshore Blvd., Suite 101, Tampa FL 33607, no later than 5 p.m. December 29. Incomplete applications will not be considered.
In addition to the original and one copy, applicants are requested to provide one electronic unredacted (PDF) copy of the application and one electronic redacted (PDF) copy of the application. Any material redacted by the applicant must be limited to exempt or confidential information pursuant to Chapter 119, Florida Statutes, Florida’s Public Records Law.
Applicants and the public will be advised in subsequent news releases of dates of commission meetings related to filling this vacancy. The commission will submit the names of nominees for this vacant judgeship to Governor Rick Scott by February 2, 2015.
A list of members of the Thirteenth Circuit Judicial Nominating Commission is available from The Florida Bar’s website. Questions should be directed to Gaffney at (813) 287-1159 or terri@overstreetwealth.com.
Tuesday, December 2, 2014
Intellectual Property Law: Disgorgement Of Profits - To The Judge Or The Jury?
By Eric Pellenbarg
Under the Lanham Act, an infringer can be forced to disgorge profits made on sales of infringing goods. However, the issue of whether the equitable remedy of disgorgement should be decided by the court or by a jury is unsettled in the Eleventh Circuit and should be something practitioners plan for in preparing their case for trial.
An accounting for a trademark infringer’s profits is based on the equitable theory of unjust enrichment. See 15 U.S.C. § 1117(a) (providing that “the plaintiff shall be entitled … subject to the principles of equity, to recover … defendant’s profits”); Babbit Electronics, Inc. v. Dynascan Corp., 38 F.3d 1161, 1182 (11th Cir. 1994) (citing Maltina Corp. v. Cawy Bottling Co., Inc., 613 F.2d 582, 585 (5th Cir. 1980)). Claims that are purely equitable in nature should be decided by a court, not by a jury. Kovelesky v. First Data Corp., 534 Fed. Appx. 811, 815 (11th Cir. 2013) (citing Ford v. Citizens & S. Nat'l Bank, Cartersville, 928 F.2d 1118, 1122 (11th Cir. 1991)). Notwithstanding the statutory pronouncement that disgorgement of profits is an equitable remedy, the Eleventh Circuit’s civil pattern jury instructions include questions asking the jury to determine the proper amount of disgorgement. See Eleventh Cir. Civil Pattern Jury Instructions (2013) at 643. Interestingly, the comments to the pattern instructions recognize a split in authority outside the circuit exists on the issue of whether the question of disgorgement should be submitted to the jury and acknowledge that there is no Eleventh Circuit precedent on point. Id. at 653. The comments indicate that the pattern instructions do not seek to resolve the issue, only to provide guidance “to the extent that the accounting remedy is referred to a jury.” Id.
Courts in the Middle District are divided on whether to submit the issue of disgorgement of profits to a jury. See, e.g., Gen. Motors Corp. v. Phat Cat Carts, Inc., 504 F. Supp. 2d 1278, 1291 (M.D. Fla. 2006) (holding non-jury evidentiary hearing to determine damages under 15 U.S.C. § 1117); but see Health & Sun Research, Inc. v. Australian Gold, LLC, 2014 WL 2801257, at *1, (M.D. Fla. Jun. 19, 2014) (disgorgement of profits submitted to jury).
Given this backdrop, practitioners should be sure to consider who they want to consider their request for disgorgement of profits, as well as how they will try to persuade the court to decide the issue in their favor. One downside to submitting the issue to the jury is the lack of depth in the pattern jury instruction when it comes to disgorgement of profits. Judges are often hesitant to stray from the pattern jury instructions, making it difficult to customize the instruction to a particular case. Submission to the court, on the other hand, provides the opportunity for full briefing of the issue and the ability to further support your arguments through the introduction of testimony and relevant evidence, which likely will result in a more comprehensive presentation and, hopefully, a better result.
Under the Lanham Act, an infringer can be forced to disgorge profits made on sales of infringing goods. However, the issue of whether the equitable remedy of disgorgement should be decided by the court or by a jury is unsettled in the Eleventh Circuit and should be something practitioners plan for in preparing their case for trial.
An accounting for a trademark infringer’s profits is based on the equitable theory of unjust enrichment. See 15 U.S.C. § 1117(a) (providing that “the plaintiff shall be entitled … subject to the principles of equity, to recover … defendant’s profits”); Babbit Electronics, Inc. v. Dynascan Corp., 38 F.3d 1161, 1182 (11th Cir. 1994) (citing Maltina Corp. v. Cawy Bottling Co., Inc., 613 F.2d 582, 585 (5th Cir. 1980)). Claims that are purely equitable in nature should be decided by a court, not by a jury. Kovelesky v. First Data Corp., 534 Fed. Appx. 811, 815 (11th Cir. 2013) (citing Ford v. Citizens & S. Nat'l Bank, Cartersville, 928 F.2d 1118, 1122 (11th Cir. 1991)). Notwithstanding the statutory pronouncement that disgorgement of profits is an equitable remedy, the Eleventh Circuit’s civil pattern jury instructions include questions asking the jury to determine the proper amount of disgorgement. See Eleventh Cir. Civil Pattern Jury Instructions (2013) at 643. Interestingly, the comments to the pattern instructions recognize a split in authority outside the circuit exists on the issue of whether the question of disgorgement should be submitted to the jury and acknowledge that there is no Eleventh Circuit precedent on point. Id. at 653. The comments indicate that the pattern instructions do not seek to resolve the issue, only to provide guidance “to the extent that the accounting remedy is referred to a jury.” Id.
Courts in the Middle District are divided on whether to submit the issue of disgorgement of profits to a jury. See, e.g., Gen. Motors Corp. v. Phat Cat Carts, Inc., 504 F. Supp. 2d 1278, 1291 (M.D. Fla. 2006) (holding non-jury evidentiary hearing to determine damages under 15 U.S.C. § 1117); but see Health & Sun Research, Inc. v. Australian Gold, LLC, 2014 WL 2801257, at *1, (M.D. Fla. Jun. 19, 2014) (disgorgement of profits submitted to jury).
Given this backdrop, practitioners should be sure to consider who they want to consider their request for disgorgement of profits, as well as how they will try to persuade the court to decide the issue in their favor. One downside to submitting the issue to the jury is the lack of depth in the pattern jury instruction when it comes to disgorgement of profits. Judges are often hesitant to stray from the pattern jury instructions, making it difficult to customize the instruction to a particular case. Submission to the court, on the other hand, provides the opportunity for full briefing of the issue and the ability to further support your arguments through the introduction of testimony and relevant evidence, which likely will result in a more comprehensive presentation and, hopefully, a better result.
Monday, December 1, 2014
Applicants Sought For Statewide Prosecutor
The Florida Supreme Court Judicial Nominating Commission is seeking qualified
applicants to fill the position of statewide prosecutor. The appointment takes
place every four years, according to Section 16.56, F.S.
Applicants must be an elector of the state, a member of The Florida Bar for the preceding five years, and must devote full-time to their duties and not engage in the private practice of law. The Judicial Nominating Commission will nominate not less than three people to the attorney general, who will appoint the statewide prosecutor for a term of four years, to run concurrently with the term of the attorney general. The person appointed statewide prosecutor is prohibited from running for or accepting appointment to any state office for a period of two years following vacation of office.
Applications for the position and the required financial statement can be obtained from The Florida Bar’s website.
One completed original application, with attachments and financial statement, must be received by Jason Unger at GrayRobinson, P.A., 301 S. Bronough St., Suite 600, Tallahassee FL 32301 by December 11. Additionally, one electronic redacted copy of the application that complies with Chapter 119 and Florida’s public records law must also be received by December 11 at the following email address: jason.unger@gray-robinson.com.
Interviews will take place on December 15 at the offices of GrayRobinson, P.A., 301 S. Bronough St., Suite 600, Tallahassee.
Applicants must be an elector of the state, a member of The Florida Bar for the preceding five years, and must devote full-time to their duties and not engage in the private practice of law. The Judicial Nominating Commission will nominate not less than three people to the attorney general, who will appoint the statewide prosecutor for a term of four years, to run concurrently with the term of the attorney general. The person appointed statewide prosecutor is prohibited from running for or accepting appointment to any state office for a period of two years following vacation of office.
Applications for the position and the required financial statement can be obtained from The Florida Bar’s website.
One completed original application, with attachments and financial statement, must be received by Jason Unger at GrayRobinson, P.A., 301 S. Bronough St., Suite 600, Tallahassee FL 32301 by December 11. Additionally, one electronic redacted copy of the application that complies with Chapter 119 and Florida’s public records law must also be received by December 11 at the following email address: jason.unger@gray-robinson.com.
Interviews will take place on December 15 at the offices of GrayRobinson, P.A., 301 S. Bronough St., Suite 600, Tallahassee.
The members currently serving on the Supreme Court Judicial Nominating
Commission are: Chair Cynthia G. Angelos, Port St. Lucie; Vice Chair Jason L.
Unger, Tallahassee; Alexander M. Clem, Orlando; Daniel E. Nordby, Tallahassee;
Israel U. Reyes, Coral Gables; Jeanne T. Tate, Tampa; Nilda R. Pedrosa, Coral
Gables; Robert A Butterworth, Jr., Ft. Lauderdale; and Rutledge R. Liles,
Jacksonville.
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