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Business Law COVID-19

Business COVID-19 Waivers for Employees and Customers

The COVID-19 pandemic has taken all of us into uncharted waters. After an unprecedented near nationwide shutdown, many states are going through the process of reopening. For business owners, the ability to re-open is often crucial to the very survival of the business. At the same time, a business may have valid concerns about the possibility that an employee or customer could contract the virus while on the premises, resulting in the filing of a lawsuit against the business. In an effort to avoid costly litigation, some businesses are requiring workers and/or customers to sign a liability waiver — but do waivers actually work?

Are Waivers the New Normal?

Businesswoman hanging an "Open" sign after COVID-19 shutdown.

Just as social distancing and wearing a mask in public have become the new normal, signing a liability waiver before returning to work or entering a business may also be commonplace going forward. The New York Stock Exchange is requiring traders to sign a waiver before entering the trading floor, while Walt Disney Co.’s website cites “severe illness and death” risks for customers at its Orlando, Florida, amusement parks. The Trump campaign even had attendees at a rally sign a waiver agreeing not to sue the campaign if they contract the virus.

Why Are Businesses Requiring Waivers?

Business owners are contemplating the use of waivers to avoid the very real possibility of costly litigation that could ensue if a worker or customer claims they contracted COVID-19 at the business.

Typically, workers are covered under workers’ compensation if they are injured or become ill on the job, but questions remain unanswered regarding Covid-19 coverage. In order to qualify for workers’ compensation benefits, a worker need not prove that the employer did anything wrong, only that the injury or illness is job-related. Illnesses like the cold or flu, however, are not usually covered under Florida’s workers’ compensation laws, because they are seen as a hazard of daily living. Though the Florida Department of Financial Services has issued a directive to honor Covid-19 claims made by frontline state employees (such as police officers, first responders, corrections officers, state healthcare employees, child safety investigators and active national guard members), this directive has not been categorically extended to all employees, which could leave employers vulnerable to negligence lawsuits if Covid-19 claims are treated like cold or flu claims. 

Customers have long been able to pursue a personal injury lawsuit based on the concept of premises liability if they were injured or became ill as a result of the business owner’s negligence. For a business that already suffered significant economic losses during stay at home orders, the prospect of a hefty damages award may be enough to implement the use of a liability waiver.

Does a Liability Waiver Really Work?

It depends. The basic idea behind a liability waiver in the context of the coronavirus pandemic is to protect a business from liability for damages if someone contracts the virus while working or visiting the business. In legal terms, this is accomplished by asking the person executing the waiver to “assume the risk” of contracting the virus. Can a waiver actually protect a business though? The answer is less than certain, – and depends on a variety of factors that are likely to change in the coming months.

Liability waivers have historically been limited by the courts in three important ways. First, only known risks can be assumed by the person signing the waiver –, meaning a waiver must clearly state the risks – (in this case, contracting COVID-19). Second, it must be a voluntary assumption of the risk.  Finally, a waiver must be consistent with public policy, which may present issues for both employee and visitor waivers due to the bargaining position between employees and employers, as well as certain businesses and visitors that are consumers.

Additionally, Florida courts have made clear that they will not enforce waivers that attempt to protect a business from actions arising from the business’s gross negligence or intentional acts.  Likewise, a waiver that requires an employee to waive the right to workers’ compensation or unemployment benefits is also unenforceable.

Should I Require a Waiver for My Business?

If you are a business owner who is concerned about your liability exposure during the coronavirus pandemic, it is in your best interest to consult with an experienced business law attorney before you consider utilizing a liability waiver. Additionally, business owners should carefully analyze the potential non-legal impact of requiring visitors or employees to sign waivers (i.e., potential effect on image). While a carefully drafted waiver may provide your business with some protection, it should be uniquely tailored both to your business and to the ever-changing laws relating to COVID-19

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Business Law COVID-19

Jeff Lieser Joins AM Tampa Bay to talk about Payroll Protection Program

On April 3, 2020, the Paycheck Protection Program was established with the intent to support small U.S. businesses during the COVID-19 pandemic. Program funding was depleted within a few days, in part, because some of the loans were distributed to companies that were not the intended recipients. The Paycheck Protection Program received an additional $484 billion on April 24, 2020, when President Trump signed a second COVID-19 rescue bill.

Problem with the Original Paycheck Protection Program Structure

As originally structured, there was an inherent flaw in the Paycheck Protection Program (PPP). Under PPP requirements for loan forgiveness, businesses had to spend 60% of the loans on payroll with the other 40% on rent, mortgage, interest, or utilities within 8 weeks of receiving the funds. For struggling businesses that had been forced to close due to the pandemic, there was no payroll, which meant that the loan could not be forgiven. 

Issue Rectified with Second Payroll Protection Program Structure

The second COVID-19 rescue bill extended the timeframe that businesses were required to use the funds from 8 weeks to 24 weeks. As states allow businesses to reopen, more small businesses can seek forgiveness of the loans under the federal guidelines. However, challenges still remain. 

During an interview with WFLA News, Jeff Lieser, an attorney at Lieser Skaff Alexander, said that while the Small Business Administration (SBA) has a guide for loan forgiveness, this process is dense and difficult to understand. Mr. Lieser urges businesses to stay in contact with their lender and to ask questions about any part of the process that is unclear. In addition, Mr. Lieser encourages business owners to continually review the Frequently Asked Questions (FAQ) of the SBA’s website to stay current of changes and updates to the loan program. 

Loan Forgiveness Process

The main purpose of the Paycheck Protection Program was to ensure that small businesses could continue operations during the shutdown but qualifying for loan forgiveness is a complex process. Business owners must be prepared to provide their lenders with complete and detailed documents of how the loan funds were spent and prove that the disbursement complied with the payroll percentage requirement.  For businesses that utilize payroll programs or third party payroll process companies, this part of the process may be simplified but rent, interest, and other expenses must also be fully documented. 

Mr. Lieser encourages business owners who are having difficulty documenting their qualifications for loan forgiveness to contact an attorney specializing in business law to support them in this process. 
 

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Business Law COVID-19

Virtual Mediation During COVID-19

With the coronavirus pandemic forcing more people to stay home, businesses across the country must find ways to perform their work without face-to-face interactions. Yet the pandemic has not reduced sources of disagreement.

Fast resolution of conflicts is often necessary for businesses to navigate this unusual time, and mediation can help with that. Yet the demands of social distancing make traditional, face-to-face mediation difficult. To answer this concern, Tampa mediator, Jeff Lieser, offers virtual business mediation services.

What Is Digital Business Mediation?

Digital mediation is an online form of traditional mediation. Specifically, it:

  • Man Attending a Virtual MeetingConnects disputing parties with a mediator through a secure, private online conference platform.
  • Allows the mediator to walk the parties through their dispute without face-to-face conflict.
  • Allows for electronic signatures of any resulting legal documents or agreements.
  • Takes place with no face-to-face, in-person contact, helping all parties maintain proper social distancing to stop the spread of COVID-19.

With virtual mediation, you get the same high-level mediation services you expect from Mr. Lieser, but in a virtual environment.

Does Online Mediation Work?

Jeff Lieser is a skilled business and real estate mediator. He knows how to spot subtle cues, like body language and facial expression, of the participants to help guide the discussion. You may wonder if virtual mediation is as effective. The answer is yes. Even in a digital environment, a skilled mediator can facilitate resolution.

For business owners struggling due to COVID-19, disagreements are going to happen. Through our virtual mediation services, Florida businesses can work through those differences. We can help you come to a successful conclusion, all while doing your part to reduce the spread of COVID-19.

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Business Law

Jeffrey Lieser Cited in Business Observer as he Works to Protect Client’s Intellectual Property on the Web

As reported in the Business Observer, Jeff Lieser of Lieser Skaff Alexander, represents a client in a multi-million dollar lawsuit filed in U.S. District Court in Tampa against a publicly traded, New York City-based company. The lawsuit alleges that the company used LSA’s client’s content without consent and for its financial gain. In the Business Observer article, Jeff offers ideas to business owners to protect themselves from similar situations.

Monitor the Internet for Your Content

First, Lieser recommends that companies protect their intellectual property by continually monitoring of the content on other sites, especially competitors, for possible theft of content. If you believe that content has been plagiarized, send a demand letter that the content be removed, and if that isn’t successful, then take legal action, if possible.

Protect Your Site with Strong Terms of Service

He also encourages entrepreneurs and other business owners to have strongly worded terms of use or service on their sites. This could include a statement that the content of the site, including blogs, cannot be shared, copied, reprinted or otherwise used without the express, written permission of the owner of the site.

Protect Digital Content From Previous Employees

Another issue is post-employment computer access by former staff members. Use an offboarding procedure that protects digital content from being accessed by former employees. When a person leaves your company, immediately delete all login credentials and change parking lot, building and other access codes to secure your physical property, as well as all internal computer networks and cloud-based systems.

Use Non-Compete Agreements

Finally, Lieser encourages employers to have a strong and legally enforceable non-compete agreement, and challenge the former employee if they are in violation. Remember, just because someone signs an agreement doesn’t mean that they will honor it, so you must protect your interests by demanding its enforcement.

Protecting intellectual property is challenging when your online content is easily stolen by your competitors. You must monitor websites and take immediate action to assure that violations are addressed. This situation is even more difficult when former employees abuse their access to your intellectual property and violate non-compete agreements. Seeking legal protection is often the best way to resolve these situations.

Intellectual property and employment law is complex and working with an attorney to protect your interests before a problem arises is the best course of action. Jeff Lieser and his team work with clients to help them avoid these types of issues and aggressively represent clients whose intellectual property rights have been infringed upon or who have been damaged by the actions of former employees. Contact our office today to learn how we can help you protect your business.

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Business Law

Civil Theft Lawsuits May Be Used to Recover Personal and Business Property

When someone wrongfully takes your property, you can use Florida’s civil theft Statute (F.S. 772.11) to recover the property and/or seek damages. This law is designed to make the victim whole after a theft and encompasses a wide range of “property.” Individuals and businesses can use the civil theft law to reclaim property, recover damages, and more. The same Statute offers protection against exploitation of the elderly.

What Constitutes “Theft”

A successful civil theft claim requires that you prove:

  1. The statutory elements of theft; and
  2. Felonious intent.

This essentially means that you must prove that you owned the property and that the other person took it or denied you the use of it knowing that they did not have a legal right to the property.

What is Property?

Under this law, property has a broad definition. The property must have value and can include: tangible and intangible personal property and real property.

Key Aspects of a Civil Theft Claim

Before filing a civil theft claim for damages the plaintiff must serve a 30 day written cure notice to the defendant. The notice must include a demand for treble damages (three times the amount) if the defendant fails to timely pay.

A civil theft lawsuit must be initiated within 5 years after the cause of action accrues or within 5 years from the date that the civil theft conduct ends.

Trial

At trial, the plaintiff must prove the civil claim with “clear and convincing evidence,” which is higher than the “preponderance of the evidence” burden of proof that other civil lawsuits must meet.

The type of evidence that the plaintiff must present will depend on the nature of the claim. This may include theft, possession of altered property, or dealing in stolen property.

The jury or judge will determine the actual damages that the plaintiff sustained and, if actual damages are found, multiply that amount by three. The court will also make a determination as to the amount of attorney’s fees and interest to be assessed. No punitive damages are allowed. n>

Closing

Civil theft claims may arise from a variety of circumstances because of the broad definition of property.

If you believe you have been the victim of civil theft or have been served pre-suit notice, please contact the attorneys at Lieser Skaff Alexander. Our skilled lawyers have extensive experience in this area and have represented both sides in civil theft lawsuits.

 

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Business Law

Starting a New Business? Plan for Success by Hiring an Attorney

Many entrepreneurs start a company using do-it-yourself legal forms that have been downloaded from the internet. While this process may be expedient and inexpensive, the lack of professional legal guidance can result in costly mistakes that damage the venture before it has a chance to start. Make a true investment in your business by working with an attorney that practices in Tampa before starting the formation process. This decision will start your company off on the right foot and support its ongoing success. A business attorney will help you:

  • Select the right legal structure. Each type of business form, from partnerships to incorporation, offers various protections and risks for the owners and investors. A business attorney will listen to your goals and help you select the business format that best serves your needs, protects you from personal liability and is structured for future growth.
  • Comply with local, state and federal regulations. An attorney will assure that your business is compliant with all initial filings and registrations. He or she will also know the additional federal, state and local laws, ordinances and regulations that must be met, depending on the type of business you are starting. Your attorney will also help you complete annual filings and manage the legal documentation required by law.
  • Utilize effective contracts. Nearly every business enters into lease agreement for services and supplies. There may also be agreements between partners, investors and employees. To protect your interests, these contracts must be drafted and reviewed by a lawyer who will assure that they are  compliant with all relevant laws and regulations.
  • Protect intellectual property and trade secrets. Intellectual property and trade secrets often differentiate a business from its competition and this information must be kept confidential. However, potential partners or investors may need access to this data, as well as financial and other operational material, to evaluate the investment opportunity. Before sharing any business information your attorney should draft an effective non-disclosure agreement specific to your needs. In some instances, copyrights and trademarks may also be required to provide protections when your products enter the marketplace. Before sharing any business information with someone outside the company, work with your attorney to put the proper protections in place.
  • Manage negotiations. When you are negotiating, include your attorney in the process. He or she will have experience in negotiating agreements and can often achieve better terms than you would on your own.

A business attorney has extensive experience working with a variety of businesses, helping them form, expand, and, in some instances, close. They will assure that you stay compliant with laws and regulations, but can also help you complete mergers, purchase other businesses and so much more. Recognize that your lawyer is a member of your team and will do their part to support your business success.

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Business Law

Business Owners Need to Ensure their Websites, Not Just their Buildings, Comply with the ADA

Signed into law in 1990, the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101, et. seq., declares that “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society.”[1] According to the Southern District of Florida, websites may well be one of those aspects.

Title III of the ADA

To begin, some background information: To protect the rights of disabled individuals and to facilitate their participation in “all aspects of society,” the ADA prohibits discrimination against such individuals, much as other laws afford heightened civil rights protections to people on the basis of race, color, sex, national origin, age, and/or religion.

The ADA is divided into five “titles”[2] or sections that each relate to different areas of public life,[3] including Title III, which regulates “public accommodations” and sets the minimum standards for accessibility with regard to alterations, renovations, and new construction. Title III prohibits the owner of a place of “public accommodation” from discriminating “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . .” 42 U.S.C. § 12182(a). In plain language, Title III means that business owners have to make reasonable modifications to their usual way of doing things when serving people with disabilities.

What is a “Public Accommodation”?

But does Title III apply to all businesses? The ADA defines “public accommodation” broadly, and includes in its definition private entities and facilities whose operations affect commerce and fall into one of twelve very broad categories, which include things like “place[s] of exhibition or entertainment,” “sales or rental establishment[s],” and “service establishment[s].”[4]

Moreover, federal regulations define the term “facility” as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” 28 C.F.R. § 36.104. In short, most privately-owned business that sell goods or provide services are “public accommodations” and they are required to provide the protections and access required by Title III in all of their facilities.

If you own your own business, you probably know all of this already. You already know about sidewalk heights and parking lot requirements and bathroom stall configurations. You know about allowing service animals in your store and making sure your staff is trained on communicating effectively with customers who are blind or have hearing or speech disabilities. For the conscientious business owner, Title III’s compliance requirements are standard operating procedure. But what you may not know is that your website might have to comply with Title III too.

Gil v. Winn Dixie Stores, Inc.

In 2017, Juan Carlos Gil filed a lawsuit against Winn–Dixie Stores, Inc., alleging Winn-Dixie’s website is inaccessible to the visually impaired, in violation of Title III of the ADA. See Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315 (S.D. Fla. 2017). For example, Mr. Gil (who utilizes access technology software to operate a computer but cannot see the computer screen) claimed that Winn-Dixie’s website would not interface with his screen-reader software to allow him to refill prescriptions or find coupons. See Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1343-44 (S.D. Fla. 2017).

Winn-Dixie admitted that its physical grocery stores and pharmacies are places of public accommodation but denied that its website was also a “public accommodation” under the ADA. 242 F. Supp. 3d at 318.

ADA Website Compliance Lawsuits

While Gil v. Winn Dixie Stores, Inc. is not the first case where the application of Title III to websites came into play, it is one of the first in Florida where a court confirmed that the website in question was inaccessible under Title III. It also provides Florida business with a thorough summary of where Florida’s federal courts seem to be headed with regard to this issue.

As the Gil Court explained, there is currently a “split” in America’s federal circuit courts about the ADA and its application to websites. Id. at 1319. In the First, Second, and Seventh Circuits, the ADA can apply to a website independent of any connection between the website and a physical place; in the Third, Sixth, and Ninth Circuits, places of public accommodation must be physical places, and goods and services provided by a public accommodation must have a sufficient nexus to a physical place in order to be covered by the ADA. Id.

The Eleventh Circuit—the circuit that Florida’s district courts answer to—has not yet addressed whether websites are public accommodations for purposes of the ADA. However, district courts within the Eleventh Circuit have, and those district courts have generally held:

(1) the ADA does not apply to a website that is wholly unconnected to a physical location, but;

(2) the ADA does apply to a website if a plaintiff can establish a “nexus between the website and the physical premises of a public accommodation.” Id.

The Court’s Decision in Gil

The Southern District of Florida eventually found in favor of Mr. Gil, stating that while the “Court need not decide whether Winn–Dixie’s website is a public accommodation in and of itself,” the “factual findings demonstrate that the website is heavily integrated with Winn–Dixie’s physical store locations and operates as a gateway to the physical store locations.” 257 F. Supp. 3d at 1349.

That integration and connection to Winn-Dixie’s physical stores made all the difference to the Southern District of Florida, and the Gil Court ruled Winn–Dixie had violated the ADA:

Although Winn–Dixie argues that Gil has not been denied access to Winn–Dixie’s physical store locations as a result of the inaccessibility of the website, the ADA does not merely require physical access to a place of public accommodation. Rather, the ADA requires that disabled individuals be provided “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . .” 42 U.S.C. § 12182(a). The services offered on Winn–Dixie’s website, such as the online pharmacy management system, the ability to access digital coupons that link automatically to a customer’s rewards card, and the ability to find store locations, are undoubtedly services, privileges, advantages, and accommodations offered by Winn–Dixie’s physical store locations. These services, privileges, advantages, and accommodations are especially important for visually impaired individuals since it is difficult, if not impossible, for such individuals to use paper coupons found in newspapers or in the grocery stores, to locate the physical stores by other means, and to physically go to a pharmacy location in order to fill prescriptions.

The factual findings demonstrate that Winn–Dixie’s website is inaccessible to visually impaired individuals who must use screen reader software. Therefore, Winn–Dixie has violated the ADA because the inaccessibility of its website has denied Gil the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations that Winn–Dixie offers to its sighted customers.

Id.

What Does Gil Mean for Business Owners in Florida?

The Gil decision likely means that there are more lawsuits heading our way.

The Gil decision signals that at least some federal courts in Florida are willing to apply Title III of the ADA broadly enough to encompass a website if a business has a brick-and-mortar location. Since virtually all brick-and-mortar businesses also operate websites, but most business owners are not yet aware that their websites could expose them to lawsuits like Gil, there is likely to be an uptick in the number of Title III cases filed over the next few years.

Moreover, while the ADA does not provide damages to plaintiffs, a court can order businesses to take the steps required to make the website compliant, and it can also award attorneys’ fees to the plaintiff’s lawyer—which could be substantial.

What can business owners do right now?

At the moment, the Web Content Accessibility Guidelines 2.0 (the “WCAG”), which the Gil Court discussed in its opinions, is generally recognized as the best guidance regarding website and mobile application compliance with the ADA.

Familiarize yourself with the WCAG, work with your information technology department to evaluate your current level of compliance, and then contact qualified legal counsel to develop a strategy to protect your business.

__________________

[1] On January 1, 2009, a large-scale amendment to the ADA, the Americans with Disabilities Act Amendments Act (ADAAA) became effective.

[2]  Title I, regulating employment, essentially requires  covered employers to protect the rights of persons with disabilities in all aspects of employment, including by providing reasonable accommodations.

Title II, regulating public services provided by state and local governments (including transportation services), requires public entities make their programs, services, and activities accessible to individuals with disabilities.

Title IV regulating telecommunications, requires telephone and internet companies to provide a nationwide system of relay services, which allow individuals with hearing or speech disabilities to communicate.

Title V contains various miscellaneous provisions applicable to the other Titles.

[3] Titles I, II, III, and V of the original law are codified in Title 42, chapter 126, of the United States Code beginning at § 12101. Title IV of the original law is codified in Title 47, chapter 5, of the United States Code.

[4] 42 U.S.C. § 12181(7) identifies the twelve categories as follows:

(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;

(B) a restaurant, bar, or other establishment serving food or drink;

(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

(D) an auditorium, convention center, lecture hall, or other place of public gathering;

(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, hospital, or other service establishment;

(G) a terminal, depot, or other station used for specified public transportation;

(H) a museum, library, gallery, or other place of public display or collection;

(I) a park, zoo, amusement park, or other place of recreation;

(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.

 

 

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Business Law

LSA Writes Article for Florida Bar About Florida’s Litigation Privilege

Lieser Skaff Alexander attorneys wrote an article about Florida’s Litigation Privilege that was published by the Florida Bar Journal in the September/October 2018 issue (Volume 92, No.8).

The litigation privilege “initially developed to protect litigants and attorneys from liability for acts of defamation, but has since been extended to cover all acts related to and occurring within judicial proceedings.”[1] It is a doctrine deeply grounded in public policy considerations. As the Restatement (Second) of Torts explains, “‘absolute privileges’ are based chiefly upon a recognition of the necessity that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interests.”[2]

With regard to attorneys, specifically, Florida courts have explained:

The basis for such . . . privileges for lawyers is to permit a free adversarial atmosphere to flourish, which atmosphere is so essential to our system of justice. In fulfilling their obligations to their client and to the court, it is essential that lawyers, subject only to control by the trial court and the bar, should be free to act on their own best judgment in prosecuting or defending a lawsuit without fear of later having to defend a civil action for defamation for something said or written during the litigation. A contrary rule might very well deter counsel from saying or writing anything controversial for fear of antagonizing someone involved in the case and thus courting a lawsuit, a result which would seriously hamper the cause of justice. As such, the law has long looked with disfavor on such slander actions against lawyers uttered in the due course of judicial procedure except in the most extreme cases where the defamatory statement was totally irrelevant to the lawsuit and was uttered with deliberate and premeditated malice.[3]

The ligation privilege is the result of “balancing of two competing interests: the right of an individual to enjoy a reputation unimpaired by defamatory attacks versus the right of the public interest to a free and full disclosure of facts . . . .”[4]  Florida courts have “determin[ed] that the public interest of disclosure outweighs an individual’s right to an unimpaired reputation,” and “have noted that participants in judicial proceedings must be free from the fear of later civil liability as to anything said or written during litigation so as not to chill the actions of the participants in the immediate claim.” Id.

“The privilege first arises upon the doing of any act necessarily preliminary to judicial proceedings.”[5]

But, what constitutes an act “necessarily preliminary” to a judicial proceeding?

Once court called such acts “steps in the judicial process.”[6]  Another Florida court determined that communications “required by [a] section [of the] Florida Statutes” were necessarily preliminary and immunized by the litigation privilege.[7] The Supreme Court stated that immune acts were those “incidental to the proper initiation” of a judicial proceeding.[8]

In short, pre-suit notices, which “Florida law requires a plaintiff to send . . . before filing a complaint” are “necessarily preliminary” to a judicial proceeding, and thus absolutely privileged.[9]

However, that rule of thumb is not always as simple as it sounds.  The article does a deep dive on these issues and can be read here.

Enjoy!

[1] Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1274 (11th Cir. 2004).

[2] Restatement (Second) of Torts § 584, at 243 (Introductory Note: “Absolute Privilege Irrespective of Consent”).

[3] Sussman v. Damian, 355 So. 2d 809, 811 (Fla. 3d DCA 1977).

[4] Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994).

[5] Burton v. Salzberg, 725 So. 2d 450, 451 (Fla. 3d DCA 1999), rev. dismissed, 741 So.2d 1134 (Fla. 1999); see also Webb v. Bush, No. 2006-CA-001567, 2010 WL 5071536 (Fla. 1st Cir. Ct. March 5, 2010) (“As all the alleged defamatory statements were made during judicial proceedings or preliminary to judicial proceedings, the statement is absolutely privileged.”).

[6] Ball v. D’Lites Enterprises, Inc., 65 So. 3d 637, 638 (Fla. 4th DCA 2011).

[7] Stewart v. Sun Sentinel Co., 695 So. 2d 360, 362-63 (Fla. 4th DCA 1997)

[8] Buckley v. Fitzsimmons, 509 U.S. 259, 277 n.2 (1993).

[9] Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 386 (Fla. 2007)