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Non-compete and non-solicitation provisions, otherwise known as “restrictive covenants,” have become increasingly more common in employment agreements.  The West Palm Beach non-compete attorneys at the Mavrick Law Firm have extensive experience dealing with restrictive covenants in a wide array of industries, including the medical industry.  Although these non-compete covenants are meant to protect a former employer’s alleged legitimate business interests, they can also interfere with certain public policy issues, such as a patient’s right to continuity of care with their own physician.  Unlike some states, Florida law has not yet specifically recognized the patient’s right to continue treatment with his or her physician as a consideration when determining whether to enforce restrictive covenants in the medical industry.  Thus, if a physician leaves a medical group under the cloud of a non-compete or non-solicitation agreement, the physician will often be precluded from contacting his or her patients to continue treatment at the new employer.  This raises an important issue: will a physician be in violation of the non-compete covenant if a patient voluntarily seeks out the physician to continue his or her care?  The West Palm Beach non-compete attorneys at the Mavrick Law Firm were recently confronted with this issue at trial and know that this would not be considered direct solicitation based on the Second District Court of Appeal’s holding in Lotenfoe v. Pahk, 747 So. 2d 422 (Fla. 2d DCA 1999).

In Lotenfoe, a physician challenged a temporary injunction that precluded him from competing with his former employer.  The physician’s employment agreement contained the following restrictive covenant:

Employee [Lotenfoe] agrees that on the termination of his employment for any reason, and for a period of five (5) years thereafter, he will not directly or indirectly act in a professional capacity that competes in a substantial degree with the employer [Pahk] within the area of Highlands County, Florida…

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Businesses that conduct online commerce with Florida residents should be prepared to litigate disputes arising out of their transactions in Florida. The Fourth District Court of Appeal has described the interplay of the internet and assessments of specific and general jurisdiction as “a confusing area of the law that is mainly scattered across the federal courts…” Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245, 248 (Fla. 4th DCA 2011). As several transactions are done online, many defendants may be unsure if they can be haled into the Florida courts if they live in another state. There is a two-step process for determining if an out of state defendant can be forced to litigate in Florida. Florida’s Long Arm Statute, § 48.193, Fla. Stat., gives clear guidelines as to how jurisdiction can be acquired.

There are two types of jurisdiction that Florida has over out of state defendants: specific or general. “As the first step in a two-step process, it must initially be determined if sufficient facts exist to confer either specific jurisdiction or general jurisdiction pursuant to Florida’s long-arm statute.” Caiazzo 73 So. 3d at 250. A showing of either type of jurisdiction will establish the minimum contacts needed for the out of state defendant to be haled into a Florida court.  After an assessment of minimum contacts, the court then does an assessment of due process. See Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310 (1945).

Fla. Stat. 48.193(1) provides specific jurisdiction over defendants where the cause of action arises out of their isolated conduct within Florida. 48.193(1) Fla. Stat. provides a non-exhaustive list of activities that can subject a defendant to specific jurisdiction, some activities that are pertinent to business defendants include, but are not limited to:

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Sellers who want to protect themselves from being sued by disgruntled customers should carefully design their websites to validly incorporate the terms and conditions that they would like to impose in the transaction. The validity of an online seller’s “terms and conditions” is critical to determine the rights and obligations of the seller and buyer in the event of litigation arising out of the parties’ transaction. Sellers who successfully incorporate their terms and conditions into their online transaction can, among other things, force buyers to arbitrate, have claims litigated in certain forums, and limit their exposure. Thus, Florida businesses that engage in e-commerce should look at the Fourth District Court of Appeal’s recent decision in Vitacost.com, Inc. v. McCants, 210 So. 3d 761 (Fla. 4th DCA 2017), for guidance.

In McCants, the appellate court examined the validity of an arbitration clause that was purportedly incorporated into an online purchase agreement. The court began its assessment by noting that there are generally two types of agreements online purchase agreements: “browsewrap” agreements and “clickwrap” agreements. See id. at 762. Clickwrap agreements are generally enforceable because they require buyers to click a box to acknowledge that they read the seller’s terms and conditions. See id.  Whereas, “browsewrap” agreements simply provide a link to the terms and conditions and does not require the buyer to click an acknowledgement of the seller’s terms and conditions during the checkout process. See id. “Browsewrap” agreements have been enforced when the purchaser has actual knowledge of the terms and conditions or when the hyperlink to the terms and conditions is conspicuous enough to put a reasonably prudent person on inquiry notice. Id. (citing Nguyen v. Barnes & Noble Inc., 763 F.3d 1171, 1176 (9th Cir. 2014).

“Uniformly, courts have declined to enforce “browsewrap” agreements when the hyperlink to the terms and conditions is buried at the bottom of the page, and the website never directs the user to review them. Id. at 765. In McCants, an online retailer argued that an arbitration clause was incorporated into the purchase agreement because a browsewrap agreement that contained the terms and conditions of the sale was displayed during the transaction. See id. However, in this case, the browsewrap agreement was found not to be “conspicuous enough to put a reasonably prudent person on inquiry notice.” Id. The court reminded potential litigants that to incorporate a collateral document into an agreement, Florida contract law mandates that the agreement must: “(i) specifically provide that the collateral document is being incorporated; and (ii) sufficiently describe the collateral document being incorporated.” Id.

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Under Florida law, government records are often admissible both as business records and public records, but it is generally easier to obtain admission as a public record. An evidentiary proponent may easily authenticate public records by requesting the state supply the record under seal.   It also is not necessary to show the state created the public records at or near the time of the memorialized matter, and therefore it is much easier to admit into evidence than business records.  By contrast, authenticating a business record requires either: (1) a record custodian to testify under oath, (2) stipulation of the parties that the document is a business record, or (3) through a declaration by a person with knowledge that the record (a) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters; (b) was kept in the course of the regularly conduct activity; and (c) was made as a regular practice in the course of the regular conducted activity.

In Florida, admission of public records is governed by Florida Statutes § 90.803(8), which references two types of public records. The first type includes records setting forth the “activities of the office,” while the second type includes records setting forth matters observed pursuant to a duty imposed by law as to matters which there was a duty to report.

Regarding the first type of public records, the Supreme Court of Florida in Yisreal v. State of Florida, 993 So.3d 952 (Fla. 2008), explained that the purpose of the “activities of the office” exception is to allow public records prepared for purposes independent of specific litigation and does not need to be based on personal knowledge.  Yisreal held that the letter at issue was not an “activities of the office” based public record because the letter was drafted as a gratuitous hearsay letter for the purpose of litigation, rather than a document creating and maintaining Crime and Time Reports, which was the relevant activity of the office.

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