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The Lanham Act is a federal statute that protects businesses from various types of unfair competition, including trade dress infringement. The term “trade dress” is defined as “the total image of a product . . . [that] may include features such as size, shape, color or color combinations, textures, graphics, or even particular sales techniques.” Epic Metals Corp. v. Souliere, 99 F.3d 1034 (11th Cir. 1996). Trade dress infringement claims often arise in business litigation between businesses that produce, design, or use similar products. Businesses can sue for trade dress infringement under the Lanham Trademark Act when the relevant features of the business’ product are non-functional. Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in Miami, Boca Raton, and Palm Beach. The Mavrick Law Firm represents clients in breach of contract litigation, 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 term trade dress refers to “the appearance of a product when that appearance is used to identify the producer.” Dippin’ Dots, Inc. v. Frosty Bites Distribution, LLC, 369 F.3d 1197 (11th Cir. 2004). “‘Trade [d]ress’ involves the total image of a product and may include features such as size, shape, color . . . , texture, graphics, or even particular sales techniques.” AmBrit, Inc. v. Kraft, Inc., 812 F.2d 1531 (11th Cir. 1986). To prevail on a claim for trade dress infringement, a party must prove that: “(1) the product design of the two products is confusingly similar; (2) the features of the product design are primarily non-functional; and (3) the product design is inherently distinctive or has acquired secondary meaning.” Dippin’ Dots, Inc. v. Frosty Bites Distribution, LLC, 369 F.3d 1197 (11th Cir. 2004).

Business litigation under the Lanham Act focuses on protecting trade dress for a product’s non-functional features. Epic Metals Corp. v. Souliere, 99 F.3d 1034 (11th Cir. 1996). Indeed, “trade dress protection may not be claimed for product features that are functional.” TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23 (2001). “There is no bright line test for functionality.” Dollar Only Wholesale, LLC v. Transnational Foods, Inc., 2014 WL 11944275 (S.D. Fla. Apr. 23, 2014). “[T]he person who asserts trade dress protection has the burden of proving that the matter sought to be protected is not functional.” 15 U.S.C. § 1125(a)(3). The issue of functionality is treated as a question of fact. Epic Metals Corp. v. Souliere, 99 F.3d 1034 (11th Cir. 1996).

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Parties generally have a duty to mitigate their damages under Florida law. A party’s “failure to mitigate” its damages is a defense commonly raised in employment litigation. “The doctrine of avoidance consequences, commonly referred to as a duty to mitigate damages, prevents a party from recovering those damages inflicted by a wrongdoer which the injured party could have avoided without undue risk, burden, or humiliation.” Graphic Associates, Inc. v. Riviana Restaurant Corp., 461 So. 2d 1011 (Fla. 4th DCA 1984). A party’s failure to mitigate its damages is an affirmative defense that can be raised by businesses against former employees. Frederick v. Kirby Tankships, Inc., 205 F.3d 1277 (11th Cir. 2000). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The failure to mitigate is a prevalent defense in Title VII employment cases. Successful claimants bringing Title VII discrimination claims are typically entitled to backpay. Title VII specifically provides that “[i]nterim earnings or amounts earnable with reasonable diligence by the person or persons discriminated against shall operate to reduce the back pay otherwise allowable.” 42 U.S.C. § 2000e–5(g)(1). “[I]n calculating a back pay award, the trial court must determine what the employee would have earned had she not been the victim of discrimination, and must subtract from this figure the amount of actual interim earnings.” Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303 (S.D. Fla. 2004). To establish the affirmative defense of a Title VII claimant’s failure to mitigate damages, the defendant employer “must show that a claimant did not make reasonable efforts to obtain comparable work, or that comparable work was available and the claimant did not seek it out.” Sennello v. Reserve Life Ins. Co., 667 F. Supp. 1498 (S.D. Fla. 1987). Indeed, the “employer must show that the claimant failed to exercise reasonable diligence to locate other suitable employment and maintain a suitable job once it is located.” Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303 (S.D. Fla. 2004). If “an employer proves that the employee has not made reasonable efforts to obtain work, the employer does not have to establish the availability of substantially comparable employment.” Weaver v. Casa Callardo, Inc., 922 F.2d 1515 (11th Cir. 1991).

A Title VII claimant seeking front or backpay “must make a reasonable and good-faith effort to mitigate her damages.” Richardson v. Tricom Pictures & Productions, Inc., 334 F. Supp. 2d 1303 (S.D. Fla. 2004). To do so, the claimant must seek employment “substantially equivalent” to the position from which she was terminated. Reiner v. Family Ford, Inc., 146 F. Supp. 2d 1279 (M.D. Fla. 2001). “Substantially equivalent employment is employment that affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status to those available to employees holding the position from which the Title VII claimant has been discriminatorily terminated.” E.E.O.C. v. Joe’s Stone Crab, Inc., 15 F. Supp. 2d 1363 (S.D. Fla. 1998). Once accepted, the claimant must also “make reasonable and good faith effort to retain the job.” Sennello v. Reserve Life Ins. Co., 667 F.Supp. 1498 (S.D. Fla. 1987).

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A prevalent issue in business litigation  is whether a party can recover damages for fraud if the party also sues for breach of contract. “Under Florida law, ‘one can sue for breach of contract and fraudulent inducement to enter the very same contract, and obtain two recoveries.’” Guarantee Ins. Co. v. Brand Management Servs., Inc., 2014 WL 11531365 (S.D. Fla. Sept. 15, 2014). However, “[a] plaintiff . . . may not recover damages for fraud that duplicate damages awarded for breach of contract.” Novak v. Gray, 469 F. App’x 811 (11th Cir. 2012). Florida’s independent tort doctrine “prohibits claims in tort for damages, which are the same as for breach of contract so prevent plaintiffs from recovering duplicative damages for the same wrongdoing.” Perez v. Scottsdale Ins. Co., 2019 WL 5457746 (S.D. Fla. Oct. 24, 2019). Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, 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 law, and other legal disputes in federal and state courts and in arbitration.

“It is well settled that a party may not recover damages for both breach of contract and fraud unless the party first establishes that the damages arising from the fraud are separate or distinguishable from the damages arising from the breach of contract.” Williams v. Peak Resorts Intern. Inc., 676 So. 2d 513 (Fla. 5th DCA 1996). A “fraud claim may not be pursued if its damages merely duplicate the damages recoverable for breach of a related contract.” Huie v. Dent & Cook, P.A., 635 So. 2d 111 (Fla. 2d DCA 1994). “Where the compensatory damages requested in a count for tort are identical to the compensatory damages sought in a count for breach of contract, compensatory damages and punitive damages for tort are not recoverable.” Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA 1986).

For breach of contract claims arising under Florida law, there is a difference between general damages and consequential damages. General damages are “those damages which naturally and necessarily flow or result from the injuries alleged.” Hutchison v. Tompkins, 259 So. 2d 129 (Fla. 1972). In other words, general damages are those that “may fairly and reasonably be considered as arising in the usual course of events from the breach of contract itself.” Fla. E. Coast Ry. v. Beaver St. Fisheries, Inc., 537 So. 2d 1065 (Fla. 1st DCA 1989). By contrast, consequential damages are not likely to occur in the usual course of events, but “may reasonably be supposed to have been in contemplation of the parties at the time they made the contract.” Fla. E. Coast Ry. v. Beaver St. Fisheries, Inc., 537 So. 2d 1065 (Fla. 1st DCA 1989). Consequential damages are sometimes referred to as special damages as well. “Special damages consist of items of loss which are peculiar to the party against whom the breach was committed and would not be expected to occur regularly to others in similar circumstances.” Hardwick Properties, Inc. v. Newbern, 711 So. 2d 35 (Fla. 1st DCA 1998).

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Respondeat superior is a common law doctrine which provides that an employer may be held liable for the actions of its employee if the employee was acting within the scope of his or her employment when committing the tortious or criminal act. Many businesses find themselves involved in litigation due to the actions of their employees, whether these actions are intentional or negligent. However, because the doctrine of respondeat superior requires the conduct of the employee to have been within the scope of employment, the employer often has a valid defense to any alleged third-party or vicarious liability. Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

The doctrine of respondeat superior developed historically to hold the master responsible for the acts of his servant because the master alone is able to direct the servant. This liability of the master or principal is sometimes referred to as vicarious, transferred, derivative or imputed liability. Where the relationship of master-servant, principal-agent, or employer-employee exists, the doctrine is referred to as “respondeat superior.” 1 Modern Tort Law: Liability and Litigation § 7:2 (2d ed.). Therefore, the terms respondeat superior and vicarious liability are often used interchangeably when a principal or employer is sought to be held liable for the acts of an agent or employee.

However, an employer is only vicariously liable for damages resulting from the tortious acts of an employee when these acts were committed within the scope of his or her employment. This is based upon the long-recognized public policy that victims injured by the tortious or criminal acts of employees acting within the scope of their employment should be compensated even though it means placing vicarious liability on an innocent employer. “Under the doctrine of respondent superior, an employer cannot be held liable for the tortious or criminal acts of an employee, unless the acts were committed during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer.” Iglesia Cristiana La Casa Del Senor, Inc. v. L.M., 783 So. 2d 353 (Fla. 3d DCA 2001). For the conduct of an employee to be considered within the scope of employment, “Florida law requires that the conduct (1) must have been the kind for which the employee was employed to perform; (2) must have occurred within the time and space limits of his employment; and (3) must have been activated at least in part by a purpose to serve the employment.” Spencer v. Assurance Co. of Am., 39 F.3d 1146 (11th Cir.1994).

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Florida businesses often include “choice of law” provisions in their contracts to identify the substantive state law that will govern disputes that may later arise under the contract. These provisions provide the contracting parties with a greater degree of certainty as to how certain claims ultimately resolve in the future. Choice of law provisions are particularly important for businesses to consider when drafting commercial and consumer contracts with parties from different states. However, under Florida law, a choice of law provision does not automatically confer personal jurisdiction over an out-of-state litigant to be sued in the same state as the chosen law.  Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation in Fort Lauderdale, Boca Raton, and Palm Beach.  The Mavrick Law Firm represents clients in breach of contract litigation, non-compete agreement litigation, trade secret litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

Florida courts will generally enforce a choice-of-law provision in a contract unless the law of the chosen forum contravenes strong public policy. Punzi v. Shaker Adver. Agency, Inc., 601 So. 2d 599 (Fla. 2d DCA 1992). This rule “is premised on the presumption that choice-of-law provisions are valid unless the party seeking to avoid enforcement of them sufficiently carries the burden of showing that the foreign law contravenes strong public policy of the forum jurisdiction.” Walls v. Quick & Reilly, Inc., 824 So. 2d 1016 (Fla. 5th DCA 2002). “Where a contract is clear and unambiguous, it must be enforced pursuant to its plain language.” Hahamovitch v. Hahamovitch, 174 So. 3d 983 (Fla. 2015). Florida courts will therefore enforce unambiguous choice-of-law provisions unless a specific public policy sufficiently outweighs the general public policy protecting freedom of contract. Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So. 2d 306 (Fla. 2000). Moreover, choice-of-law provisions in commercial contracts are also expressly authorized by Section 671.105(1), Florida Statutes., which provides: “[W]hen a transaction bears a reasonable relation to this state and also to another state or nation, the parties may agree that the law either of this state or of such other state or nation shall govern their rights and duties.”

Choice of law provisions reflect “[a]n agreement between parties to be bound by the substantive laws of another jurisdiction.” Se. Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So. 3d 73 (Fla. 2012). “It is well established that when the parties to a contract have indicated their intention as to the law which is to govern, it will be governed by such law in accordance with the intent of the parties.” Dep’t of Motor Vehicles ex rel. Fifth Ave. Motors, Ltd. v. Mercedes-Benz of N. Am., Inc., 408 So. 2d 627 (Fla. 2d DCA 1981). Choice of law clauses consistently provide that the agreement be governed, construed, interpreted, or enforced by or in accordance with the laws of the State of Florida or another state of the parties’ choosing. Banco Indus. de Venezuela C.A., Miami Agency v. de Saad, 68 So. 3d 895 (Fla. 2011).

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Business litigation involving claims under Florida’s Uniform Trade Secrets Act (FUTSA) for trade secret misappropriation often also include similar additional claims for tortious interference, fraud, or violations of Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA). However, these additional claims rarely survive past the pleading stage because FUTSA prohibits parties from maintaining common law and statutory claims arising from facts substantially similar to the alleged trade secret misappropriation. FUTSA “displace[s] conflicting tort, restitutory, and other laws of this state providing civil remedies or misappropriation of a trade secret.” Section 688.008, Florida Statutes. This “provision expressly prohibits a pleader from asserting alternative claims based on trade secret misappropriation because Florida’s Legislature decreed that FUTSA preempts all other causes of action.” Coihue, LLC v. PayAnyBiz, LLC, 2018 WL 7376908 (S.D. Fla. Feb. 6, 2018). Peter Mavrick is a Fort Lauderdale trade secret attorney, and also advocates for clients in Palm Beach, Boca Raton, and Miami, Florida.  The Mavrick Law Firm represents corporations and their owners in business litigation, non-compete agreement litigation, trademark infringement litigation, employment law, and other legal disputes in federal and state courts and in arbitration.

Under Florida law, a party’s “separate tort claim is preempted by FUTSA if there is no material distinction between the plaintiff’s FUTSA claim and the other allegation.” Sentry Data Systems, Inc. v. CVS Health, 361 F. Supp. 3d 1279 (S.D. Fla. 2018). “To determine whether allegations of trade-secret misappropriation preempt a plaintiff from sufficiently pleading a separate, but related tort, the Court must evaluate whether allegations of trade secret misappropriation alone comprise the underlying wrong; if so, the cause of action is barred by § 688.008.” Sentry Data Systems, Inc. v. CVS Health, 361 F. Supp. 3d 1279 (S.D. Fla. 2018). “In determining if a tort cause of action is preempted by the FUTSA, courts have examined whether there are “material distinctions between the allegations comprising the additional torts and the allegations supporting the FUTSA claim.” Digiport, Inc. v. Foram Dev. BFC, LLC, 314 So. 3d 550 (Fla. 3d DCA 2020). “In other words, the allegations must be separate and distinct.” ThinkLite LLC v. TLG Sols., LLC, 2017 WL 5972888 (S.D. Fla. Jan. 31, 2017). If the trade secret misappropriation alone comprises the underlying wrong, the claim is preempted. Allegiance Healthcare Corp. v. Coleman, 232 F. Supp. 2d 1329 (S.D. Fla. 2002).

Florida courts will dismiss additional tort or statutory claims as preempted under FUTSA where “the underlying wrong in each of those claims [was] limited to trade secret misappropriation and each re-allege[d] all the prior allegations” related to FUTSA. Fla. Beauty Flora Inc. v. Pro Intermodal L.L.C., 2021 WL 1945821, (S.D. Fla. May 14, 2021). In Pelfrey v. Mahaffy, the U.S. District Court for the Southern District of Florida dismissed claims for tortious interference where he alleged a party stole and deleted confidential business information and then used it to divert clients to a competing business. Pelfrey v. Mahaffy, 2018 WL 3110794 (S.D. Fla. Feb. 7, 2018). Similarly, in American Registry, LLC v. Hanaw, the U.S. District Court for the Middle District of Florida dismissed FDUTPA claims as preempted under FUTSA where the plaintiff alleged FDUTPA claims based on allegations that defendant used trade secret information to solicit and steal customers. 2014 WL 12606501 (M.D. Fla. July 16, 2014).

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In many cases, employers or managers make statements that do not qualify as sexual harassment as a matter of law, even though the statements may be viewed as inappropriate.   To assess the best defense against an employee’s claim of sexual harassment, it is important to understand the types of sexual harassment under the law and whether the employee’s allegations qualify as a valid claim under Federal or Florida law.  One type of sexual harassment under Federal and Florida law is called “quid pro quo” sexual harassment. Florida law follows Federal law concerning whether the alleged actions constitute “sexual harassment.”

Employees can sue their current or former employers based on a quid pro quo theory of sexual harassment under Title VII of the Civil Rights Act of 1964. “Quid pro quo sexual harassment occurs when an employer alters an employee’s job conditions as a result of the employee’s refusal to submit to sexual demands.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989). This type of claim differs from sexual harassment claims based on a hostile work environment where an employer’s conduct “has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive environment.” Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57 (1986). Peter Mavrick is a Fort Lauderdale employment attorney, who defends businesses and their owners against employment law claims, and represents clients in business litigation in Miami, Boca Raton, and Palm Beach.  Such claims include alleged employment discrimination and retaliation as well as claims for overtime wages and other related claims.

“The gravamen of a quid pro quo sexual harassment claim is that the employer conditions an employment benefit or job status upon the employee’s submission to conduct of a sexual nature.” Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311 (11th Cir. 1989). To establish a prima facie case of quid pro quo sexual harassment against their current or former employer, an employee must show “(1) that [she] belongs to a protected group, (2) that [she] was subjected to unwelcome sexual harassment, (3) that the harassment complained of was based on sex, and (4) that [her] reaction to the harassment complained of affected tangible aspects of [her] compensation, or terms, conditions, or privileges of employment.” Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554 (11th Cir. 1987). An employer is strictly liable for quid pro quo sexual harassment by a supervisor based on the agency doctrine of respondent superior.

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A common issue in contractual disputes is whether the claims can be compelled to arbitration. Arbitration is an alternative method of dispute resolution that parties sometimes agree to through a pre-dispute contract. Many Florida businesses operating online websites often include arbitration provisions in their website’s terms and conditions. These arbitration provisions are enforceable if they are lawfully incorporated by reference in the business’ contracts and consumers are provided actual notice of their existence. Peter Mavrick is a Fort Lauderdale business litigation attorney, and represents clients in business litigation in Miami, 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.

Arbitration agreements are governed by and enforceable under the Federal Arbitration Act, 9 U.S.C. § 1, et. seq. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991). Under the FAA and the strong federal policy favoring arbitration, courts are required to “rigorously enforce agreements to arbitrate.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985). “Federal law establishes the enforceability of arbitration agreements, while state law governs the interpretation and formation of arbitration agreements.” Employers Ins. of Wausau v. Bright Metal Specialties, Inc., 251 F.3d 1316 (11th Cir. 2009). The party seeking to compel arbitration has “the burden of producing the Arbitration Agreement and establishing the contractual relationship necessary to implicate the FAA and its provisions granting this Court authority to dismiss or stay Plaintiff’s cause of action and to compel arbitration.” Newman v. Hooters of Am., Inc., 2006 WL 1793541 (M.D. Fla. June 28, 2006). “The threshold question of whether an arbitration agreement exists at all is ‘simply a matter of contract.’” Hicks v. Comcast Cable Commc’n. LLC, 2018 WL 6573121 (S.D. Fla. Dec. 13, 2018).

Businesses can enforce arbitration agreements that are properly incorporated by reference into the underlying contract and all parties are provided notice of and access to the incorporated documents. The doctrine of incorporation by reference “requires that there must be some expression in the incorporating document . . . of an intention to be bound by the collateral document. A mere reference to another document is not sufficient to incorporate that other document into a contract, particularly where the incorporating document makes no reference that it is ‘subject to’ the collateral document.” Kantner v. Boutin, 624 So. 2d 779 (Fla. 4th DCA 1993). A contract “need not state that it is ‘subject to’ the provisions of the collateral document to incorporate its terms,” but “must contain more than a mere reference to the collateral document.” Mgmt. Comput. Controls, Inc. v. Charles Perry Constr., Inc., 743 So. 2d 627 (Fla. 1st DCA 1999). Moreover, “[w]hen a contract refers to another document, it must not only refer to the document, but it must also sufficiently describe the document.” Affinity Internet, Inc. v. Consol. Credit Counseling Services, Inc., 920 So. 2d 1286 (Fla. 4th DCA 2006).

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The “first to breach” or “prior breach” doctrine is a commonly raised defense by employees in actions brought by their former employers to enforce restrictive covenants. Under Florida law, an employer’s prior breach of its employment contract may prohibit the employer from enforcing restrictive covenants under the same agreement. Employees typically raise the “prior breach” defense based on allegations that the former employer failed to pay wages due under their employment contract. This alleged failure to pay could constitute a material breach of the entire employment agreement and render the non-compete unenforceable. In the non-compete and trade-secret context, employers seek injunctions to stop their former employees from unlawfully competing and/or exposing confidential, trade secret information. In these situations, employers are generally barred from enforcing covenants (such as non-compete agreements or confidentiality provisions) against the employee if the material breach was based on a “dependent” covenant in the contract and the non-compete covenants are not “independent” covenants. Peter Mavrick is a Miami business litigation attorney, and represents clients in business litigation 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.

When the “prior breach” doctrine is raised as a defense, Florida courts are tasked with reviewing the subject non-compete agreements to determine whether the relevant contract provisions are dependent or independent covenants. Florida courts must construe the subject contract according to its plain language and “consider the provisions at issue in the context of the entire agreement in order to achieve ‘a reasonable construction to accomplish the intent and purpose of the parties.’” Hand v. Grow Constr., Inc., 983 So. 2d 684 (Fla. 1st DCA 2008). Whether the payment obligations under the employment agreements were dependent or independent covenants is an issue of law that turns on the proper interpretation of the contracts. Morgan v. Herff Jones, Inc., 883 So. 2d 309 (Fla. 2d DCA 2004). “Florida law limits [the] defense [of a prior breach] to ‘dependent covenants.” Reliance Wholesale, Inc. v. Godfrey, 51 So. 3d 561 (Fla. 3d DCA 2010).

The general rule in Florida is that a “material breach of [a contract] allows the non-breaching party to treat the breach as a discharge of his contractual liability.” In re Walter M. Thomas, Debtor, 51 B.R. 653 (M.D. Fla. 1985). Indeed, the Supreme Court of Florida explained that “the nonbreaching party is relieved of its duty to tender performance and has an immediate cause of action against the breaching party.” Hospital Mortg. Grp. v. First Prudential Dev. Corp., 411 So. 2d 181 (Fla. 1982). “Whether contractual provisions are considered dependent or independent is generally determined by the intent of the parties based on a reading of their entire contract.” Richland Towers, Inc. v. Denton, 139 So. 3d 318 (Fla. 2d DCA 2014). In Florida, covenants are generally considered dependent unless contrary language appears in the contract.

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Non-compete agreements between employers and their employees sometimes contain “forum selection clauses” that dictate where subsequent lawsuits related to the non-compete agreement can be filed. Under Florida and federal law, forum-selection clauses are presumptively valid absent a “strong showing” that enforcement would be unfair or unreasonable under the circumstances. It is important for employers to consider whether to include forum selection clauses when drafting their employment agreements because such a clause provides predictability for the employer if litigation ever arises. This is particularly true for businesses attempting to enforce non-compete agreements against former employees residing in different states. Peter Mavrick is a Fort Lauderdale business litigation lawyer, and represents clients in business litigation in Miami, 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.

Like its federal counterpart, Florida law presumes that a contract’s forum selection clause is valid and enforceable. Am. Safety Cas. Ins. Co. v. Mijares Holding Co., LLC, 76 So. 3d 1089 (Fla. 3d DCA 2011). If an employer’s non-compete agreement contains a forum selection clause, courts will first determine whether the forum selection clause is enforceable. To do this, courts must first assess whether the given clause is mandatory or permissive. Slater v. Energy Servs. Grp. Int’l, Inc., 634 F.3d 1326 (11th Cir. 2011). A mandatory clause “dictates an exclusive forum for litigation under the contract” whereas a “permissive clause authorizes jurisdiction in a designated forum but does not prohibit litigation elsewhere.” Global Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269 (11th Cir. 2004). Mandatory clauses are accordingly given more weight. AutoNation, Inc. v. Hall, 2019 WL 3712008 (S.D. Fla. May 29, 2019). A mandatory forum selection clause is “presumptively valid and enforceable” absent a “strong showing that enforcement would be unfair or unreasonable under the circumstances.” Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279 (11th Cir. 2009).

The Eleventh Circuit Court of Appeals found that a forum selection clause can “be invalidated when: (1) its formation was induced by fraud or overreaching; (2) the plaintiff would be deprived of its day in court because of inconvenience or unfairness; (3) the chosen law would deprive the plaintiff of a remedy; or (4) enforcement of the clause would contravene public policy.” Krenkel v. Kerzner Int’l Hotels Ltd., 579 F.3d 1279 (11th Cir. 2009). Federal and Florida courts have further found that litigants can attempt to avoid a valid forum selection clause by making an evidentiary showing that the “contractually selected forum is inconvenient.” Stewart Organization, Inc., v. Ricoh Corporation, 810 F.2d 1066 (11th Cir. 1987). Indeed, courts routinely hold that a “factor which might justify refusal to enforce a forum selection clause would be ‘if the chosen forum is seriously inconvenient for the trial of the action.’” The Bremen v. Zapata Off–Shore Co., 407 U.S. 1 (1972). However, this is a heavy burden to meet given a presumptively valid forum selection clause.

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