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Contracting parties may stipulate to a particular forum for resolving future disputes. Am. K-9 Detection Servs., Inc. v. Cicero, 100 So. 3d 236 (Fla. 5th DCA 2012). This is known as a forum selection clause. The clause can be mandatory, which requires the parties to litigate in the particular chosen forum to the exclusion of all other forums, or permissive, which only constitutes consent to a particular forum without excluding all other forums. See World Vacation Travel, S.A. v. Brooker, 799 So. 2d 410 (Fla. 3d DCA 2001) (finding mandatory venue clauses require or unequivocally specify that a particular forum be the exclusive jurisdiction for litigation concerning the contract); Golden Palm Hospitality, Inc. v. Stearns Bank Nat’l Ass’n, 874 So.2d 1231 (Fla. 5th DCA 2004) (“A permissive forum selection clause may provide an alternative to the statutory choices of venue but it does not require the plaintiff to file suit in the forum referred to in the agreement.”). Peter Mavrick is a Fort Lauderdale business litigation attorney.  The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

Examples of permissive forum selection clauses are “the Creditor [Paris Bank] may choose to take legal proceedings to the competent Courts of the City of Guatemala” and “Grantor hereby consents to the jurisdiction” of Massachusetts. See Garcia Granados Quinones v. Swiss Bank Corp. (Overseas), S.A., 509 So. 2d 273 (Fla. 1987); Shoppes Ltd. P’ship v. Conn, 829 So.2d 356 (Fla. 5th DCA 2002). In both examples, the contracting party could bring claims in Guatemala or Massachusetts, but did not have to. Id.

By contrast, the forum selection clause discussed in Ware Else, Inc. v. Ofstein, 856 So.2d 1079 (Fla. 5th DCA 2003) exemplifies a mandatory clause because it clearly limited litigation to Missouri. The clause provided that any litigation “shall have its venue located exclusively” in Missouri. Id. However, one does need to use the word “exclusively” to create a mandatory clause. In Golf Scoring Sys. Unltd., Inc. v. Remedio, 877 So. 2d 827 (Fla. 4th DCA 2004), a provision stating that the “parties hereto consent to Broward County, Florida, as the proper venue for all actions that may be brought pursuant hereto” was held to be mandatory because the word “the” referred to only one forum, to the exclusion of all other forums. Id. It would, nevertheless, be best practice to affirmatively state the selected forum is the only forum suit can be brought if it is your intention to create a mandatory forum selection clause.

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Waiver is the voluntary relinquishment of a known right. Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001). The concept of wavier is important in law because it applies to a wide variety of scenarios. A litigant can waive the right to a term expressed within a contract pre-suit, to bring a claim against another, a jury trial, and many more. Therefore, waiver is a powerful tool that can help or harm a litigant’s position depending the context. However, waiver can be difficult to establish because it is almost always a question of fact. Frisbie v. Carolina Cas. Ins. Co., 103 So. 3d 1011 (Fla. 5th DCA 2012) (“Generally, waiver is a question of fact for the jury”). Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Waiver comes in two forms, express and implied. In re Shambow’s Estate, 15 So. 2d 837 (Fla. 1943). Express waiver is usually easier to establish because there must be some overt expression demonstrating the relinquishment of a right. E.g., Driscoll v. O’Reilly, 486 So. 2d 693 (Fla. 4th DCA 1986) (finding that the husband expressly waived the right to modify the settlement agreement because he “agreed that any right to modify said agreement was waived.”). The normal issues in dispute concerning express wavier are whether the right was waivable, whether the waiving party knew about the right he or she was waving, and whether the expression is sufficient to constitute wavier. See, e.g., Hicks v. State, 622 So. 2d 14 (Fla. 5th DCA 1993) (holding that the right to waive a lesser criminal charge in a capital murder case is not waivable); Hall v. Warden, Lee Arrendale State Prison, 686 Fed. Appx. 671 (11th Cir. 2017) (“If her own lawyer did not know that Ms. Hall would be unable to communicate with him during Alyssa’s testimony, he was not equipped to waive her rights, expressly or otherwise.”); Watkins v. Willis, 2023 WL 4614497 (11th Cir. July 19, 2023) (upholding the trial court’s conclusion that the government did not waive sovereign immunity because only an unequivocal expression of waiver could do so).

Implied waiver is more challenging to determine because it is established through the facts and circumstances surrounding the party’s actions or inactions as the case may be. As an example, one can implicitly waive attorney client privilege by testifying about the attorney-client communication; placing an attorney-client relationship in issue, or asserting reliance on an attorney’s advice to defend against a claim. United States v. Lehtinen, 2014 WL 1318661 (S.D. Fla. Jan. 30, 2014). One waives the right to remain silent merely by talking. Berghuis v. Thompkins, 560 U.S. 370 (2010). In both cases, the litigant never states, “I waive my right to attorney client privilege” or “I waive my right to remain silent.” Nevertheless, the litigant’s actions alone are sufficient to constitute wavier.

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A party can recover lost profit damages as direct damages or consequential damages. Lost profits, like all damages, are considered direct when they flow directly and immediately from the contractual breach. HCA Health Services of Florida, Inc. v. CyberKnife Ctr. of Treasure Coast, LLC, 204 So. 3d 469 (Fla. 4th DCA 2016). Lost profits are consequential when they arise from losses that were reasonably foreseeable by the breaching party at the time the contract was entered. Keystone Airpark Auth. v. Pipeline Contractors, Inc., 266 So. 3d 1219 (Fla. 1st DCA 2019) (defining consequential damages); Nyquist v. Randall, 819 F.2d 1014 (11th Cir. 1987) (“Lost profits are typically considered to be consequential damages”). Whether direct or consequential, Florida courts developed special rules to recover lost profits. Peter Mavrick is a Fort Lauderdale business litigation attorney.  The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

The first set of rules govern how to calculate lost profits. As the name suggests, the proponent of the damage award cannot merely establish the amount of gross revenues it would have received but for the defendant’s conduct because revenues do not account for expenses associated with generating the profit. CyberKnife Ctr. of Treasure Coast, LLC, 204 So. 3d 469 (“Evidence pertaining to loss of income or gross receipts, without specific evidence concerning expenses, is inadequate to prove lost profits.”). Therefore, the party claiming lost profits must prove the amount of revenues it would have generated and the total amount of expenses that would have been spent generating those revenues. Del Monte Fresh Produce Co. v. Net Results, Inc., 77 So.3d 667 (Fla. 3d DCA 2011). (The proper computation of damages “requires the non-breaching party to deduct from anticipated contract revenue the costs incurred in performing the contractual services.”). For example, the party seeking lost profits would likely have to establish an appropriate allocation of overhead and personnel expenses that would have been incurred in generating the revenue. Id.

The second set of rules pertains to the level of certainty lost profit damages must be established. As a general matter “all damages, cannot be speculative and must be proved with reasonable certainty.” Nebula Glass Intern., Inc. v. Reichhold, Inc., 454 F.3d 1203 (11th Cir. 2006). This can present challenges when pursuing lost profits because “proving lost profits invariably includes some element of prediction about how the market would have behaved but for the defendant’s tortious act or breach.” Id. Although proving lost profits can be difficult, it is by no means impossible. Id.

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Plaintiffs commonly pursue punitive damages when asserting fraud claims. The purpose of punitive damages is to punish unlawful conduct.  State Farm Mut. Auto. Ins. Co. v. Brewer, 191 So. 3d 508 (Fla. 2d DCA 2016). They are available when a defendant commits intentional misconduct or gross negligence. Fla. Stat. § 768.72. Punitive damages are especially relevant in claims involving fraud because the claim necessarily includes intentional misconduct. Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

A plaintiff must move to amend its complaint to include a claim of punitive damages before it can seek discovery on the issue. Id. The amendment will be allowed if the plaintiff makes a “reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery” of punitive damages. Id. Subsequently, at trial, the plaintiff must then prove entitlement to punitive damages by clear and convincing evidence. Id.

So what constitutes a reasonable showing of evidence that provides a reasonable basis for punitive damages? Florida case law provides some guidance. The trial court must “make a preliminary determination of whether a reasonable jury, viewing the totality of proffered evidence in the light most favorable to the movant, could find by clear and convincing evidence that punitive damages are warranted.” Fed. Insurance Company v. Perlmutter, 376 So. 3d 24 (Fla. 4th DCA 2023). The plaintiff’s evidentiary proffer is “merely a representation of what evidence the defendant proposes to present and is not actual evidence.” Estate of Despain v. Avante Group, Inc., 900 So. 2d 637 (Fla. 5th DCA 2005). However, the analytical framework for making the requisite determination is unclear. Some cases hold that the trial court’s sole role is to review proffered evidence and determine whether a jury could return a punitive damages verdict. Estate of Despain, 800 So. 2d 637 (stating trial court must not weigh the evidence in determining a motion to amend to add punitive damages); Perlmutter, 376 So. 3d 24 (same). Other cases hold that  the trial court’s role requires a weighing of the evidence to determine credibility of the proffered evidence. KIS Group, LLC v. Moquin, 263 So. 3d 63 (Fla. 4th DCA 2019) (stating that motion to amend to add punitive damages “necessarily requires the court to weigh the evidence and act as a factfinder”).

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Under Florida law, enforcement of a non-compete agreement requires requires proof of at least one “legitimate business interest.” Fla. Stat. § 542.335 (“The person seeking enforcement of a restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.”). A failure to plead or prove the existence of a legitimate interest justifying the non-compete covenant can void its enforcement. Id. (“Any restrictive covenant not supported by a legitimate business interest is unlawful and is void and unenforceable.”). Florida’s non-compete statute specifically references a nebulous legitimate business interest called “valuable confidential business…information.”  Florida and federal cases interpreting  the meaning of the term “valuable confidential business information” have reached different conclusions depending on the factual context. See Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223 (11th Cir. 2009) (“It is unclear under Florida law when confidential information will justify a broad restriction that prevents an employee from working for a competitor.”). Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Some courts have determined that a person possesses valuable confidential business information when the employee is in a position to engage in unfair competition against the former employer. See Autonation v. O’Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004). For example, in Open Magnetic Imaging, Inc. v. Nieves–Garcia, 826 So.2d 415 (Fla. 3d DCA 2002) (per curiam), Florida’s Third District Court of Appeal held that the defendant’s knowledge about a confidential database created as part of a confidential strategic marketing plan was a legitimate business interest because a competitor hired the defendant as its marketing representative. By contrast, in Austin v. Mid State Fire Equip. of Cent. Florida, Inc., 727 So.2d 1097 (Fla. 5th DCA 1999), the Florida appellate court refused to enforce the non-compete designed to protect pricing information known to the former employee because the former employee was only a technician that did not “set up service runs or set prices.”

Other courts appear to use a slightly higher standard advocated by the drafters of Florida Statue § 542.335, Senator John Grant and Thomas Steele. Senator Grant and Mr. Steele contend courts should look to the definition of threatened misappropriation used in trade secrets law to determine whether a defendant’s knowledge of confidential information justifies a restrictive covenant. See John A. Grant & Thomas Steele, Restrictive Covenants: Florida Returns to the Original “Unfair Competition” Approach to the 21st Century, 70 Fla. B.J. 53 (Nov. 1996) (hereinafter “Grant & Steele”). Under this approach, Valuable Confidential Information exists when disclosure of the information would be inevitable. Id. At least one Florida decision appears to have enforced a restrictive covenant based on the inevitable disclosure theory. See Proudfoot Consulting Co., 576 F. 3d 1223 (citing Fountain v. Hudson Cush–N–Foam Corp., 122 So.2d 232 (Fla.3d DCA 1960) (finding that employee’s “knowledge of the trade secrets would be so entwined with his employment” that “it would seem logical to assume that his employment by a competitor … would eventually result in a disclosure of this information”)).

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Many business contracts contain arbitration provisions, which often creates a question as to whether the contracting parties must resolve their dispute in arbitration. Florida courts consider three elements when determining whether to enforce a contractual arbitration provision. They are (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So. 2d 633 (Fla. 1999). Peter Mavrick is a Fort Lauderdale business litigation attorney.  The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

The second element generally requires further analysis because courts must determine the scope of the arbitration provision to decide if the claims at issue are subject to mandatory arbitration. Airbnb, Inc. v. Doe, 336 So. 3d 698 (Fla. 2022). Arbitration provisions can be narrow or broad depending on the language of the provision. Jackson v. Shakespeare Foundation, Inc., 108 So. 3d 587 (Fla. 2013). Narrow provisions typically contain the phrase, “arising out of.” Id. An example is “all claims arising out of this contact shall be arbitrated.” This type of provision will only require the contracting parties to arbitrate claims bearing a direct relationship to the contract. Id.

Conversely, broad arbitration provisions require contracting parties to arbitrate claims that have a significant relationship to the contract. Id. There must be a contractual nexus between the contract and the claim asserted. Id. In other words, resolution of the claim “requires either reference to, or construction of, a portion of the contract.” Id. Broad arbitration provisions usually contain the phrase “relating to” and often join the narrow phrase “arising out of.” For example, a broad arbitration may be written to state “all claims arising out of or relating to this contact shall be arbitrated.”

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Florida and federal statutes generally define a “trade secret” to be information that the owner takes reasonable measures to keep secret and the information derives “independent economic value” from not being generally known to others.  Courts ordinarily view the existence of a trade secret as a question of fact.  The United States Court of Appeals for the Fifth Circuit, in Lear Siegler, Inc. v. Ark-Ell Springs, Inc., 569 F.2d 286 (5th Cir. 1978), appropriately observed that a trade secret “is one of the most elusive and difficult concepts in the law to define.”  In many cases, the existence of a trade secret is not obvious.   It requires an ad hoc evaluation of all the surrounding circumstances.  Accordingly, the Lear Siegler decision explained that the question of whether certain information constitutes a trade secret typically is best “resolved by a fact finder after full presentation of evidence from each side.”  Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

The Defend Trade Secrets Act is a federal law that, at 18 U.S.C. section 1893(3), defines trade secret to mean “all forms and types of financial, business, scientific, technical, economic, or engineering information, including patters, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing if…(A) the owner thereof has taken reasonable measures to keep such information secret…and (B) the information derives independent economic value, actual or potential, from not being readily ascertainable through proper means by, another person who can obtain economic value from the disclosure or use of the information.”  State trade secret law, called the Uniform Trade Secret Act, has a similar definition of trade secret.  In addition, federal and state courts sometimes use six common law factors from the Restatement of Torts  to evaluate whether a trade secret exists:

(1) the extent to which the information is known outside of the plaintiff’s business;

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The Florida Uniform Fraudulent Transfer Act (“FUFTA”) is a powerful tool because it provides creditors with remedies against debtors attempting to conceal assets. Through FUFTA, Florida adopted a Uniform Fraudulent Transfer Act that many states adopted. FUFTA allows creditors to sue debtors trying to avoid paying a debt. Peter Mavrick is a Fort Lauderdale business litigation attorney.  The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

FUFTA provides two different theories for a claim of fraudulent transfer: actual fraud and constructive fraud. The “actual fraud” theory applies when a debtor conveys an asset or accepts an obligation with actual intent to hinder a creditor. Myers v. Brook, 708 So. 2d 607 (Fla. 2d DCA 1998) (citing Fla. Stat. § 726.105). Because actual intent can be difficult to prove, the creditor can establish various “badges of fraud” to demonstrate a debtor’s fraudulent intent. Fla. Stat. § 726.105. These badges can include the following:

  • Whether the transfer or obligation was to an insider, which includes individuals or business entities related to or associated with the debtor. See Stat. § 726.102(8).
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Liquidated damages are determinable with exactness from the cause of action as pleaded by a mathematical calculation or by application of a rule of law. Boulos v. Yung Sheng Xiamen Yong Chem. Indus. Co., 855 So.2d 665 (Fla. 4th DCA 2003). Many contracts contain a liquidated damage provision that attempts to ascribe an automatic amount of damage owed to the non-breaching party in the event of a breach. RKR Motors, Inc. v. Associated Unif. Rental & Linen Supply, Inc., 995 So. 2d 588 (Fla. 3d DCA 2008) (“A liquidated damages provision is a clause in a contract that determines in advance the measure of damages in the event of a contractual breach.”). Florida law permits these types of provisions. Goldblatt v. C.P. Motion, Inc., 77 So. 3d 798 (Fla. 3d DCA 2011) (“Florida law is well settled that the parties to a contract may stipulate in advance the amount that is to be paid or retained as liquidated damages in the event of a contract breach.”). Peter Mavrick is a Miami business litigation attorney, and represents clients in Fort Lauderdale, Boca Raton, and Palm Beach. The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment litigation, and other legal disputes in federal and state courts and in arbitration.

Liquidated damages provisions are not always enforceable. To be enforceable, a liquidated damages clause must satisfy two conditions:

First, the damages consequent upon a breach must not be readily ascertainable.

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A third-party can enforce a contract even though it is not a party to that contract if the contracting parties expressly intended to primarily and directly benefit the third-party. Bochese v. Town of Ponce Inlet, 405 F.3d 964 (11th Cir. 2005) (“Under Florida law, a third party is an intended beneficiary of a contract between two other parties only if a direct and primary object of the contracting parties was to confer a benefit on the third party.”). One should not assume all contractual benefits befalling a third-party allows that third-party to enforce the contract because the benefit may only be incidental. Id. (“If the contracting parties had no such purpose in mind, any benefit from the contract reaped by the third party is merely ‘incidental,’ and the third party has no legally enforceable right in the subject matter of the contract.”) (collecting cases). Therefore, the court must determine whether the contracting parties entered the agreement for the direct and substantial purpose of conferring a benefit on the third-party. Id. Peter Mavrick is a Fort Lauderdale business litigation attorney.  The Mavrick Law Firm represents businesses and their owners in breach of contract litigation and related claims of fraud, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

Ordinarily, the contract does not need to contain an express third-party beneficiary provision to allow that third-party to enforce the contract because courts look to the nature or terms of a contract to determine whether the contracting parties’ manifested an intent to benefit the third-party. Jenne v. Church & Tower, Inc., 814 So. 2d 522 (Fla. 4th DCA 2002) (“Florida law looks to “nature or terms of a contract” to find the parties’ clear or manifest intent that it “be for the benefit of a third party.” (citing Am. Sur. Co. of New York v. Smith, 130 So. 440 (Fla. 1930)). However, restrictive covenants are an exception to the rule. Florida Statute § 542.335 requires that “the restrictive covenant expressly identif[y] the person as a third-party beneficiary of the contract and expressly state[ ] that the restrictive covenant was intended for the benefit of such person.” Therefore, a third-party cannot enforce a restrictive covenant unless the contract contains an express provision allowing that third-party to do so. See Cellco P’ship v. Kimbler, 68 So. 3d 914 (Fla. 2d DCA 2011) (“The undisputed evidence was that Alltel and Cellco did not merge and that Alltel did not assign the restrictive covenant rights to Cellco. As a result, Cellco cannot enforce the Alltel–Kimbler agreement because it is not a party to the agreement nor is it a third-party beneficiary, assignee, or successor in interest.”).

Tusa v. Roffe, 791 So. 2d 512 (Fla. 4th DCA 2001) illustrates this point of law well. Tusa was a pizza restaurant and entered a contract with Roffe to rent commercial space needed to make and sell pizzas. Id. The lease contract prohibited Roffe from leasing other property on the premises to anyone who sold pizza. Id. About two months later, Roffe leased space to KKA, which also sold pizza. Id. The Roffe/KKA lease contained a provision prohibiting KKA from selling pizzas. Id. Tusa quickly discovered KKA was a pizza restaurant and commenced a lawsuit against KKA and Roffe to stop KKA from selling pizza. Id. The court dismissed Tusa’s lawsuit against KKA because the Roffe/KKA lease did not contain a provision expressly identifying Tusa as a third-party beneficiary to the contract. Id. However, the court also determined Roffe breached the Roffe/Tusa lease because Roffe allowed KKA to open a pizza restaurant on premises in violation of Tusa’s restrictive covenants. Id. (“The only reasonable interpretation of the covenant’s language that would support its protective purpose is if Roffe was prohibited from leasing space to another restaurant that sold pizza in the same building as Tusa’s restaurant.”).

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