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.

__________

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?

__________

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.

__________

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.

__________

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 Eleventh Circuit’s ruling in the Failla case was triumph for mortgage lenders when it affirmed the District Court’s opinion that “once the debtor decides to ‘surrender’ secured property… [w]hile the debtor need not physically deliver the property to the secured party, the debtor is precluded from taking any action which would interfere with the secured creditor’s ability to obtain legal title to, and possession of, the property through legal means.”

However, as set forth in the recent case of In re Kurzban, 2017 WL 3141915 (Bankr. S.D. Fla. July 24, 2017), “the Eleventh Circuit did not rule that a debtor’s decision to surrender lasted in perpetuity“.

In the Kurzban case, the mortgage lender sought to reopen the debtors’ 2009 chapter 7 bankruptcy case, over 7 years after the debtors received their discharge, to compel the debtors to surrender their real property, consistent with their bankruptcy Schedules.  The bankruptcy court noted that the bank had abandoned its foreclosure efforts, entered into modification negotiations with the debtors, seven years had passed since the debtors received their discharge and five years had passed since the bank’s first foreclosure action was voluntarily dismissed.  It was only after years of modification efforts proved unsuccessful, and the bank filed its second foreclosure action, that it sought to enforce the debtors’ surrender election years later.

Accordingly, the Kurzban court held that there was absolutely no basis under Failla decision to support the relief sought by the bank years later.  The Kurzban court reasoned that “a debtor’s decision to surrender may be binding in a foreclosure action pending, or ripe for filing, at the time of the bankruptcy case in which the intent to surrender is made, but it certainly is not binding in a subsequent foreclosure action…”

The take away for mortgage lenders where a debtor elects surrender?  Do NOT sit on your rights!  Be diligent in your efforts to foreclose and enforce your leverage under the Fialla case.


  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 previously blogged on the continuing existence of the independent tort doctrine in Florida.  In lawsuits between parties who bargained for their remedies in a contract, the independent tort doctrine will bar tort actions brought simply as a way around contract remedies.  To state a valid tort claim, the independent tort doctrine requires contracting parties to show a breach of a duty that exists separate and distinct from the contract.

Fraud is a tort action.  To state a claim for fraud, a plaintiff must show that:

  1. The defendant made a false representation concerning a material fact;
  2. The defendant knew the representation was false at the time it was made;
  3. The defendant intended that the representation would induce another to rely and act on it; and
  4. The plaintiff suffered injury in justifiable reliance on the representation.

11617356 - fingers crossed, isolated on white background

Often, a party attempts to assert a fraud action arising from representations made by another party in the course of contract negotiations.  But, false representations as to future conduct made during negotiations do not constitute actionable fraud.  Such a claim, known as “fraud in the performance,” is said to “merge” with the breach of contract claim.

For example, if the defendant promises to pay the plaintiff in the future in exchange for services performed today, and the defendant later fails to pay the plaintiff, the plaintiff would have a breach of contract action against the defendant.  The defendant’s broken promise, however, would not constitute fraud.

An exception exists where a representation is made as to future conduct without any intention of performing or “with the positive intention not to perform.”  Under these circumstances, a plaintiff would have an independent action for fraud.  In the example above, if the defendant did not have any intention of paying the plaintiff at the time the representation was made, the plaintiff would have a fraud action against the defendant.

As the weather in South Florida turns cooler and the snow birds start flying south, there is a remarkable increase in the number of little dogs (and other animals) one sees in their local Publix grocery stores and favorite cafes.  Even off season, I recently spied a bunny rabbit at one of the restaurants I frequent on a regular basis.

This is my dog Simon.

That bunny encounter spurred my curiosity regarding whether anyone had been prosecuted under the Florida Law  passed in 2015 making it a second degree misdemeanor to misrepresent an animal as a service animal.  The answer, at least as of last year, is no.  No one has been criminally charged in Florida under the fake service dog law.

And in the bunny instance, it is clear that Bugs Bunny was in violation of Florida law and the Americans with Disabilities Act (“ADA”).  Additionally, the restaurant owner could have gotten in trouble with Department of Health or put its business license at risk.  Florida law doesn’t permit bunnies or kitty-cats or monkeys, or parrots (there is one I’ve seen dining out regularly in my local down town) at restaurants inside or outside (outside means within designated outdoor portions of a public food service establishments).  Once, I even dined next to a kitty-cat in a stroller while in Key West (only in Key West).

Key West kitty in a stroller.

Its quite confusing for business owners when it comes to which animals can accompany customers into their businesses.  Many business owners are afraid of ADA Title III litigation so they don’t do anything when people bring animals into their stores or restaurants, but that may open them up to other types of litigation. For example a few years ago a Publix employee in Palm Beach was bitten by an emotional support animal (“ESA”).

The first thing to understand is there is a big difference, under the law, between a service animal and an emotional support animal.

Service animal under the ADA:

  • Almost always a dog (sometimes a miniature pony but no other kind of animal);
  • Individually trained to assist a person with a disability;
  • Generally, businesses must permit a service dog anywhere the public is permitted.
  • Service dogs must be harnessed, leashed, or tethered, unless these devices interfere with the service dog’s work or the individual’s disability prevents using these devices.  In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.

When it is not obvious what service a dog provides, only limited questions are permitted.  A business’ staff may ask two questions:  (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform.

Staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.

A person with a disability cannot be asked to remove his or her service dog from the premises unless:  (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken.  When there is a legitimate reason to ask that a service dog be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the dog’s presence.  Businesses that kick out customers with service dogs (or what they suspect as fake service dogs) should consider recording the dog and customer in case they are later sued under the ADA Title III.

Establishments that sell or prepare food must allow service dogs in public areas even if state or local health codes prohibit animals on the premises.

Here in Florida there are lot of people carrying around purse dogs and other pets that enter businesses and claim they can do so because the dog or animal is an emotional support animal (“ESA”).  Emotional support animals are not afforded the same access as service dogs.  So if a customer brings in a bunny or cat or snake into your business establishment they can be shown the door even if they claim that the animal is a service animal (remember that service animals under the ADA can only be dogs or miniature ponies) or ESA.  If someone claims their dog is an ESA that can be a murkier situation for a business owner, but dog ESAs are also not protected under the ADA.

An ESA is not a pet, rather it is a companion animal that provides therapeutic benefit to an individual with a mental or psychiatric disability.  The person seeking the emotional support animal under fair housing laws must have a verifiable disability (the reason cannot just be a need for companionship).  The animal is viewed as a “reasonable accommodation” under the Fair Housing Amendments Act of 1988 (FHA or FHAct) to those housing communities that have a “no pets” rule.

ESAs are also provided protection under the Air Carrier Access Act which is why you see so many dogs (and other animals) on planes these days.  Airlines are somewhat stuck and many people are gaming the system to avoid having to pay to fly their dogs and other pets and to get around other rules for pets on planes. There have been all kinds of incidents including dog attacks and planes having to be diverted due to pet poop such that many in the airline community are lobbying for new rules on pets on planes.

__________

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.

Please see my latest update, over on Fox’s In the Weeds, rounding up all the news on Florida’s medical marijuana business.

__________

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.

Back in the Spring, I posted about the next frontier in ADA Title III litigation (web site accessibility), see my posts here and here.  Since those posts, the next frontier has shown up, with a vengeance, in the Southern District of Florida.

This summer, the first trial (in the country) on ADA web site accessibility was held right here in the matter of Carlos Gil v. Winn-Dixie Stores, Inc., Civil Action No. 16–23020 (S.D. Fla.).

Following trial in the Winn-Dixie matter, U.S. District Judge Robert Scola ruled that:

  1. Winn-Dixie’s website was a “place of a public accommodation” under the ADA.
  2. Based on the testimony of the plaintiff and his expert, Winn-Dixie’s website was not sufficiently accessible.
  3. Accordingly, the court issued injunctive relief and also awarded attorneys’ fees.
  4. The injunctive relief included a requirement that Winn-Dixie adopt and implement a website accessibility policy that ensures its website conforms to the WCAG 2.0 criteria.  Although the court did not note specify a level of compliance with WCAG 2.0 (A, AA, AAA).
  5. Further, the court ordered that any third-party vendors who interact with the website must also conform to such criteria.
  6. The court also ordered that Winn-Dixie homepage include a statement concerning its website accessibility policy.
  7. Winn-Dixie was also required to provide training to all employees who write or develop programs or code, and test its website to identify any incidence of nonconformance every three months for the next three years.

Since the ruling in the Winn-Dixie matter, there has been a summer deluge of cases filed in the Southern District of Florida and plaintiffs’ attorneys appear to be working their way through each and every national corporation to test web site accessibility and then sue for purported deficiencies.  While its mostly been the large national corporations that have been the target of these lawsuits or demands, there is no reason to believe that mid-size and smaller corporations are not next on the list.  Here in the Southern District of Florida, because of the legal precedent of the Winn-Dixie case (although nonbinding), I expect that web site ADA Title III litigation will follow the physical-plant ADA Title III litigation trend with the plaintiffs’ attorneys working their way down from big to small companies.

Retailers and other businesses (including restaurants, hotels, and other service based businesses) with web sites plus physical locations are advised to develop website accessibility policies for their web access and state those policies on their homepages.

____________________________

Dori K. Stibolt is a partner with the law firm of Fox Rothschild LLP.  Dori has in-depth experience counseling companies regarding ADA online access and defense of ADA website accessibility cases.  Dori also 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.