Please see my post, over on Fox’s In the Weeds blog, regarding continued delays in the roll-out of Florida’s medical marijuana program.

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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.

Illustration of man receiving a bag of money from computer monitorIn a post on Fox’s Employment Discrimination Report blog, associate Justin Schwam in Morristown, NJ, briefly covers a recent $5 million settlement of gender and racial pay discrimination brought by the Office of Federal Contract Compliance Programs (OFCCP) against State Street Corporation. The settlement comes after a six-year investigation into the financial services firm’s compensation practices.

We invite you to read Justin’s commentary, as well as the corresponding Alert written by partner Ken Rosenberg in Morristown and Justin.

It is pumpkin spike latte time here in Florida which is one of the only signs of fall with our tropical weather.   Fall also is time for Florida employers to pay attention to the new 2018 Florida minimum wage.  As of January 1, 2018, Florida’s minimum wage will rise from the current rate of $8.10 per hour to $8.25 per hour.

Under Florida Statute § 448.110 4(a) and (b), the Florida Department of Economic Opportunity must calculate Florida’s minimum wage based upon the increase, if any, in the Federal Consumer Price Index for Urban Earners and Clerical Workers in the southern region.  Based upon this year’s calculation, Florida’s new minimum wage for 2018 is $8.25 per hour.

Employers of tipped employees, who meet eligibility requirements for the tip credit under the Fair Labor Standards Act, may count tips actually received as wages under the Florida minimum wage.  However, the employer must pay tipped employees a direct wage.  The direct wage is calculated as equal to the minimum wage, $8.25, minus the tip credit for Florida, $3.02, or a direct hourly wage of $5.23.

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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.

In a proceeding contesting the validity of a will, the proponent of the will only has the burden to establish that the will was executed with the required formalities.  The burden then shifts to the contestant to establish the will’s invalidity.

In cases contesting the validity of a will on the basis of undue influence, the contestant must prove undue influence by the greater weight of the evidence, unless the contestant can show sufficient facts to raise a presumption of undue influence.  This is known as the Carpenter’s exception.  In Florida, the presumption of undue influence arises when:

  1. A substantial beneficiary under a will,
  2. Occupies a confidential relationship with the decedent, and
  3. Is active in procuring the contested will.

The term “confidential relationship” is very broad and arises whenever one person trusts and relies in another.  Thus, a confidential relationship can be both formal, such as a fiduciary relationship, or informal, such as a social or personal relationship.

Courts examine the following non-exclusive criteria to determine active procurement:

  1. Presence of the beneficiary at the execution of the will;
  2. Presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
  3. Recommendation by the beneficiary of an attorney to draw the will;
  4. Knowledge of the contents of the will by the beneficiary prior to execution;
  5. Giving instructions on preparing the will by the beneficiary to the attorney drawing the will;
  6. Securing of witnesses to the will by the beneficiary; and
  7. Safekeeping of the executed will by the beneficiary.

33464327 - young woman learns older woman how to use tablet.

A contestant is not required to prove each of the above criteria to establish active procurement.  “Each case is fact specific and the significance of any (or all) of such criteria must be determined with reference to the particular facts of the case.”

Once the contestant establishes that the Carpenter exception applies, the presumption of undue influence arises.  The burden of proof then shifts to the proponent of the will to establish by a preponderance of the evidence the nonexistence of undue influence.  In other words, the proponent must come forward with a reasonable explanation for his or her active role in the decedent’s affairs.

If the proponent can successfully show a reasonable explanation for his or her role in the decedent’s affairs, then the court is left to determine the validity of the will according to the greater weight of the evidence.

 

Americans generally cherish their right to a jury trial under the Sixth and Seventh Amendments to the United States Constitution and the media certainly perpetuate the idea that jury trials are the norm.  However, there are instances where a party may prefer that a judge, rather than a jury, decide the dispute(s) between the parties.

In a recent bankruptcy adversary proceeding out of the S.D. of Florida, the defendant moved to strike the Chapter 7 bankruptcy trustee‘s jury trial demand related to the trustee’s fraudulent transfer claims.  Defendant raised three arguments: (1) the trustee is bound by a contractual waiver of jury trial rights entered into by the debtor prior to the filing of its bankruptcy petition; (2) a trustee in bankruptcy is never entitled to a jury trial in connection with a fraudulent transfer or other avoidance action under the Bankruptcy Code; and (3) the present adversary proceeding is “integral to the claims resolution process,” thus equitable in nature, and so there is no right to jury trial.

The Court determined that none of the arguments had merit and the Trustee was in fact entitled to a jury trial, in a nutshell, as follows:

(1) Even if the debtor was bound by a jury trial waiver, that agreement is binding on the bankruptcy estate only with regard to those claims owned by the estate that were previously held by the debtor.  The bankruptcy estate’s claims derived from the Bankruptcy Code itself, such as fraudulent transfer claims, are not covered by the debtor’s pre-petition jury trial waiver.

(2) Fraudulent transfer claims seeking monetary recovery are actions at law and are subject to jury trial on the timely request of a party pursuant to Granfinanciera v. Nordberg, 493 U.S. 33 (1989).

(3) The defendant did not file a proof of claim and therefore, the trustee’s fraudulent transfer action was not part of the claims allowance process.

The Court noted that when a defendant files a proof of claim, an avoidance action becomes part of the claims process as a result and neither the creditor or the bankruptcy estate has a right to a trial by jury citing to Langenkamp v. Culp, 498 U.S. 42 (1990) and Katchen v. Landy, 382 U.S. 323 (1966).  However, the defendant had not filed a claim because it apparently did not have a claim against the estate.

The Takeaway:  If you have a claim against the bankruptcy estate and do not wish to have a jury trial on any avoidance claims you suspect will be filed against you, you may want to file a proof of claim.


  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.

 

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.