I recently wrote in Fox Rothschild’s Consumer Law Ledger about a Florida appellate court’s ruling that the statute of limitations for a negligent appraisal claim begins to run on the date that the loan is funded, even if a loan default does not occur until much later.

I’ve been told that a Motion for Rehearing En Banc or for Certification for the Florida Supreme Court will be filed by the lender. So, we may not have heard the end of the Llano Financing Group, LLC v. Petit case just yet.

We’ll keep an eye on this one to see if there are any changes to this ruling.

I’ve been posting about the problems companies face when a customer wants to bring in a fake service dog, see my recent posts here, here and here.

One of the biggest issues for companies is figuring out which dogs are fake service dogs and which dogs are real service dogs without running afoul of the American with Disabilities Act (“ADA”).   Now comes news of a blind man’s service dog being bitten by another dog on the Sacramento Light Rail.  Initially, the owner of the “bad dog” claimed it was a service dog, but after police told him they had the incident on video he admitted the dog was a pet.

Businesses are really in a catch 22, if employees improperly question a real service dog owner they can be in violation of the ADA.  However, this type of incident, if it had happened within a private business, might have created a premises liability situation that would have negatively impacted the business.  The owner of the real service dog could have been hurt and/or sued the business for damages/injuries to his real service dog.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

 

The State of Florida has missed the deadline to issue additional licenses for medical marijuana treatment centers (the entities that grow, distribute and sell medical marijuana).  Please see my post, over on Fox’s In the Weeds, for additional details.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

A conspiracy requires the combination of two or more persons.  To state a claim for civil conspiracy, a plaintiff must show:

  1. An agreement between two or more parties,
  2. To do an unlawful act or to do a lawful act by unlawful means,
  3. The doing of some overt act in pursuance of the conspiracy, and
  4. Damage to plaintiff as a result of the acts done under the conspiracy.

A corporation is a legal entity, which can only act through its directors, officers and employees.  As a result, the intra-corporate conspiracy doctrine provides that agents cannot conspire with their corporate principal, because “it is not possible for a single legal entity consisting of the corporation and its agents to conspire with itself.”

Group of business people having board meeting around glass table

The intra-corporate conspiracy doctrine generally prevents a plaintiff from asserting a claim for civil conspiracy against agents and their corporations for internal agreements to commit wrongful conduct.  However, there is an exception, known as the “personal stake” exception, which provides that an agent may be liable for civil conspiracy if he or she has a personal stake in the activities that is separate from the corporation’s interest.  In other words, the agent must have acted in his or her own personal interest, “wholly and separately from the corporation.”

In Mancinelli v. Davis, the Fourth DCA recently considered whether a plaintiff sufficiently pled the personal stake exception in an action against a corporation and its CEO for civil conspiracy.  In finding that the CEO’s increased compensation resulting from the unlawful conduct was insufficient to establish the personal stake exception, the court said:

A personal stake must be more than just personal animosity on the part of the agent.  Moreover, the benefit to the agent must be more than incidental to the benefit to the principal.

However, in an action for civil conspiracy against a hospital and its chairman, the Third DCA found the complaint sufficiently pled the personal stake exception where it alleged that the defendants influenced patients to see the chairman instead of plaintiffs and refused to honor referrals to plaintiffs.  Thus, whether the exception applies and an action for civil conspiracy exists should be analyzed on a case by case basis.

When an individual files for bankruptcy protection, he/she is entitled to certain wonderful benefits.  For example, a Chapter 13 bankruptcy filing will stop (at least temporarily) a home foreclosure or car repossession and provide the individual with an opportunity to resolve financial difficulties, including time to cure arrearages.

However, with these wonderful benefits, also come duties that the individual must fulfill to the Bankruptcy Court and its creditors.  Bankruptcy cases are frequently dismissed because these same individuals that sought the protection and benefits of bankruptcy, fail to live up to their end of the bargain!

One of the requirements to stay in bankruptcy under Section 521 of the Bankruptcy Code requires bankruptcy filers (“Debtors”) to file a schedule of his/her assets and liabilities, current income and current expenditures, and statement of the debtor’s financial affairs – all under penalties of perjury.  Bankruptcy cases are frequently dismissed because the Debtor fails to properly complete and timely file these schedules and statement of financial affairs.

By example, former Miami Marlin and World Series Pitcher, Livan Hernandez recently had his Chapter 13 bankruptcy case dismissed after he failed to file his required schedules and statement of financial affairs after his initial deadline (Strike One!), his first request for extension (Strike Two!) and his second request for extension (Strike 3) and the Bankruptcy Court said – You’re Outta Here! – by entering it Order dismissing Hernandez’s Chapter 13 case, with prejudice for 180 days!

What happens when a bankruptcy case is dismissed under these circumstances?  The Debtor loses all those wonderful benefits of bankruptcy and is barred from filing bankruptcy again for 180 days (with a few exceptions).  The automatic stay is terminated and the Debtor returns to his pre-bankruptcy status with all of his creditors.  This means that creditors may legally pursue all collection efforts against him, including foreclosure, repossession, and lawsuits.


  Heather L. Ries is an attorney with the Financial Restructuring and Bankruptcy Department of the law firm of Fox Rothschild LLP. Heather focuses her practice in matters related to bankruptcy, creditors’ rights, commercial workout and foreclosure disputes, and commercial litigation. You can contact Heather at 561-804-4419 or hries@foxrothschild.com.

Please see my most recent post, over on Fox’s In the Weeds, regarding a recent lawsuit alleging that part of the Florida law implementing Amendment Two (medical marijuana) is unconstitutional.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

I’ve posted before, here and here, regarding the dilemma business owners have when faced with a customer with a dog (fake service dog) or a customer with an animal (emotional support animal – which are not afforded the same protections as service dogs).  Many business owners simply don’t know how to respond or respond incorrectly (and generate bad press for themselves).  Many customers are fed up with fake service dogs everywhere and they resent businesses that do nothing as well and that means companies often can’t win.

Yesterday, there was an interesting article/editorial in The Hill regarding a proposal for creating a national certification database for service dogs.

What are your thoughts on a national certification program for service dogs?

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Following up on my earlier post regarding fake service dogs, news from up north that Massachusetts is also considering a law to penalize those that pass off pets at service dogs.

The bill would makes passing a pet off as a service dog a civil infraction, carrying a $500 fine.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.

Hurricane Irma did a number on South Florida and the Keys and while many people have no power and damage (myself included), we are all getting back to work.  Over the next few days I’m going to focus my posts on post-Irma employment law issues.

Before and during the storm, I noticed some companies were getting bad press for requiring their employees (mostly low paid non-exempt [hourly] service workers) to come into work when Florida’s Governor, Rick Scott, was imposing mandatory evacuations in many areas.

First, requiring employees to work during mandatory evacuations means bad press on social media and in the news.  These days, news stories can quickly become viral and can negatively impact your company brand and your business.

Second, while there is no Florida state law that prevents termination of at-will employees who fail to report to work (even during an emergency) there are other protections for employees.

Specifically, the Occupational Safety and Health Administration (“OSHA”) provides guidance to employers and employees regarding hurricane preparations and post-storm response.  Also, under the OSHA Act, it is against the law for an employer to retaliate against an employee who demands a safe and healthful workplace.  Obviously there are exceptions to the OSHA rules for first responders and some government workers.

While the OSHA anti-retaliation provision may not protect an employee who evacuates, if you are demanding that your employees work in an area where there is a mandatory evacuation your employees could certainly claim that the workplace was not safe at that time.  Employers in this situation may want to consider closing their operations so employees can evacuate or prepare for the impending storm.  Alternatively, companies may want to ask for volunteers to work during an emergency situation and/or not impose harsh penalties on employees who are no-shows.

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Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims.  You can contact Dori at 561-804-4417 or dstibolt@foxrothschild.com.