The Mavrick Law Firm’s Fort Lauderdale & Miami business litigation attorneys have extensive experience in representing businesses with their contract claims, non-competition covenant claims, lawsuits alleging theft of trade secrets, claims alleging breach of non-competition covenants, and claims alleging interference with business relationships and contracts. Mr. Mavrick also has successfully litigated claims alleging trade secret violations, fraud, violation of Florida’s Deceptive and Unfair Trade Practices Act, alleged violations of employee duty of loyalty, and under the Uniform Commercial Code. Mr. Mavrick has successfully collected judgments, including use of post-judgment garnishment procedures. He has negotiated successful resolutions and settlements of numerous lawsuits and threatened lawsuits.Breach of Contract Litigation
The most common business litigation claims are for some form of breach of contract, including bilateral or multilateral express contracts, implied in fact or law contracts, and unilateral contracts. The Miami business litigation attorneys at the Mavrick Law Firm represent clients in complex breach of contract cases that sometimes involve multiple parties and multiple related contracts and modifications or alleged modifications to these contracts. Successful representation of clients in complex breach of contract litigation, as with any litigation, requires careful thought and preparation. Contracts must be reviewed in detail with related documents, such as emails and other written correspondence, sworn testimony, and other documents such as loan applications and income tax returns.
Mr. Mavrick has obtained excellent results on behalf of his clients in breach of contract litigation through a careful case strategy and analysis. In a recent case, Mr. Mavrick defended a Florida corporation that was sued in federal court in Miami, Florida for violation of Florida trade secret law. Mr. Mavrick successfully argued to the federal court that the plaintiff’s parent corporation had agreed in a written contract that any such litigation would occur in England and that no Florida law would apply to the case, and instead the law of England would apply. The plaintiff tried evade the contract by arguing that it was not an actual party or signatory to the contract, and therefore the litigation should proceed in the Miami federal court and be governed by Florida trade secret law. Mr. Mavrick proved to the court that although the plaintiff was not a signatory to the contract, it was a third-party beneficiary to the contract and was therefore bound by the contract’s terms. This included the choice of law and forum clauses requiring the case be dismissed and filed in the United Kingdom. “In order to bind a non-party to a forum selection clause, the party must be ‘closely related’ to the dispute such that it becomes ‘foreseeable’ that it will be bound.” Hugel v. Corp. of Lloyds, 999 F.2d 206, 209 (7th Cir. 1993). Third-party beneficiary status satisfies the foreseeability and closely related requirements. Lipcon v. Underwriters at Lloyd’s London, 148 F.3d 1285, 1299 (11th Cir. 1998) (citing Hugel, 999 F.2d at 209-10 n.7). The Mavrick Law Firm’s Fort Lauderdale & Miami business litigation attorneys proved that plaintiff’s status as being 100% owned by its parent who signed the contract also satisfies the foreseeability and closely related requirements. Mr. Mavrick persuasively argued to the federal Judge that courts have generally held that a forum-selection clause applies to tort and other non-contract claims that require interpretation of the contract or otherwise implicate the contract’s terms. See, e.g., Omron Healthcare, Inc. v. Maclaren Exports, Ltd., 28 F.3d 600, 601-03 (7th Cir. 1994) (holding that forum-selection clause governed trademark-infringement claim where resolution of dispute depended upon interpretation of the contract); Crescent Int’l, Inc. v. Avatar Communities, Inc., 857 F.2d 943, 944-45 (3d Cir. 1988) (holding that forum-selection clause applied to RICO, fraud, unfair-competition, and tortious interference claims because they implicated the terms of the agreement); Bense v. Interstate Battery Sys. of Am., Inc., 683 F.2d 718, 720-21 (2d Cir. 1982) (applying forum-selection clause to antitrust claim).
As a last-ditch effort, the plaintiff tried to argue that the forum selection and choice of law clauses did not apply because the contract had ended and did not survive termination of the contract. However, Mr. Mavrick persuaded the court that federal case law interprets contractual provisions that are structural, such as choice of law and forum, as surviving termination of the contract. Goshawk Dedicated v. Portsmouth Settlement Co. I, 466 F. Supp.2d 1293, 1300 (N.D. Ga. 2006) (“it is well settled that an arbitration clause may be enforced after the termination of a contract … As the Supreme Court has reasoned, an arbitration provision may survive the termination of a contract because it is a ‘structural provision’ that relates to remedies and dispute resolution”); NeoMedia Techs., Inc. v. ScanBuy, Inc. 2014 U.S. Dist. LEXIS 189225, *10 (N.D. Ga. 2014) (holding that the forum selection clause remained in force after termination of the contract, even though it was not referenced in the contract’s “survival” clause, because “courts construe survival clauses as pertaining only to performance obligations … rather than settlement of disputes” and “[t]he forum selection clause is clearly a structural provision addressed to the settlement of disputes”). The Eleventh Circuit Court of Appeals in Silverpop Sys. v. Leading Mkt. Techs., Inc. 641 Fed. Appx. 849, 858 (11th Cir. 2016), approved this reasoning and held that “structural provisions (such as the choice of law provision) remain unaffected by the termination of the agreement, and apply uniformly regardless of whether the agreement is in force or has been terminated.” The federal court dismissed the plaintiff’s case with prejudice and the plaintiff took nothing from Mr. Mavrick’s client.Corporate Litigation
The Mavrick Law Firm’s Fort Lauderdale & Miami business litigation attorneys have successfully represented corporations in litigation that specifically implicates corporate law. These cases include “derivative” litigation and corporate director disputes.
In one recent case, Mr. Mavrick successfully defended a Florida corporation and its corporate officer who were sued in derivative lawsuit for alleged misuse of corporate funds, resulting in dismissal with prejudice and no liability or payment to the plaintiff. The plaintiff was trying to hold a corporate officer liable for alleged misdeeds that occurred years earlier, even though the corporation had already been dissolved. Mr. Mavrick persuasively argued to the court that there was no timely demand made to the corporation’s board of directors. Under Florida law, if no demand has been made to the corporation’s board of directors before filing the lawsuit regarding the basis of the lawsuit, a derivative action cannot be brought. Section 607.07401(2), Fla. Stat. (2016), requires pre-suit demand: a complaint “must... allege with particularity the demand made to obtain action by the board of directors.” The plaintiff tried to argue that it was “futile” to make such a demand, but Mr. Mavrick persuasively argued that there was no “futility” exception to the demand requirement under Florida’s derivative statute. Demand must be made even if it appears that doing so would be futile. In 1990, all Florida statutory exceptions to the demand requirement were removed from the statute. Mr. Mavrick demonstrated to the court that Florida case law interpreting the post-1990 version of the statute requires demand as a prerequisite to filing a derivative lawsuit. Ferola v. Blue Reef Holding Corp., 719 So. 2d 389, 390 (Fla. 4th DCA 1998) (citing Fla. Stat. § 607.07401(2) (1997)) (“A derivative action... requires service of a demand to take action on the board of directors”). Mr. Mavrick also demonstrated to the court that federal case law generally agrees that demand is a prerequisite to filing suit and that there is no futility exception. See, e.g., In re Ferro Corp. Derivative Litig., 1:04CV1626, 2006 WL 2038659 at *8 (N.D. Ohio Mar. 21, 2006), aff’d, 511 F.3d 611 (6th Cir. 2008) (citing Fla. Stat. § 607.07401(2) (2005)) (“Florida has since adopted a universal demand requirement, which abolished the demand futility exception altogether”); Kamen v. Kemper Fin. Servs., 500 U.S. 90, 102 n.7 (1991) (citing Fla. Stat. § 607.07401(2) (1991)) (referring to Florida as having adopted a “universal-demand rule”). Ultimately, the plaintiff took nothing from Mr. Mavrick’s client and the case was dismissed with prejudice.
In another case, the Miami business litigation attorneys at the Mavrick Law Firm obtained an excellent result and dismissal of the case when a former corporate director sued the company for director’s fees. Mr. Mavrick persuasively argued to the court that his corporate client’s actions were within its corporate powers since, under Florida Statutes § 607.302, the company has the general power to elect directors and fix their compensation. The plaintiff’s claim for compensation was meritless because it was not authorized by the corporation’s Board of Directors and therefore nothing was owed to the plaintiff. In addition, Mr. Mavrick persuasively argued that any such claim for compensation was barred by the doctrine of ultra vires because nobody in the corporation had the authority to agree to such director compensation outside of the Board of Directors. Finally, Mr. Mavrick persuasively argued that the plaintiff acted inequitably and without clean hands because the plaintiff knew he was to receive no compensation as a director and this was specifically discussed among the directors, barring his claim.Defending Cases Where Fraud Is Alleged
Mr. Mavrick has successfully defended claims of fraud at the motion to dismiss, summary judgment, and trial stages.
Cases Involving Allegations Of Civil Theft
A breach of contract can sometimes can seem similar to theft. The treble damages and attorneys’ fees provisions found in the civil theft statute at section 772.11, Florida Statutes, can provide an aggrieved Florida business with a powerful remedy when circumstances warrant. Many breaches of contract arise from a counter-party's failure pay for goods or services it received. For a breach of contract to qualify as civil theft, the breaching party must have a criminal intent to steal the property and the property must be identifiable. Under Florida law, section 772.11, Florida Statutes, the tort of civil theft accords the victim the remedy of treble damages and attorneys’ fees to be paid by the offending party. This can be a powerful tool for a wronged Florida business. A party to a breach of contract may typically only recover its actual damages and, possibly, recover of attorneys’ fees if the contract specifies such recovery. Because many situations involving breach of contract do not qualify as civil theft along with its remedy of enhanced damages, the following discusses circumstances when a cause of action for civil theft is appropriate. Peter Mavrick is a Fort Lauderdale business litigation attorney and a Miami business litigation attorney who represents the interests of businesses and their owners, in court proceedings and arbitration, throughout the State of Florida.
Florida law permits parties to sue for civil theft as set forth in § 772.11, Florida Statutes:
(1) Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of [anti-theft statutes] has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney's fees and court costs in the trial and appellate courts […].
As the United States Court of Appeals for the Eleventh Circuit explained in the case of United Technologies Corp. v. Mazer, 556 F.3d 1260 (11th Cir. 2009), “[t]o maintain a claim for civil theft, [a plaintiff] must show an injury resulting from a violation of one or more provisions of the Florida ‘criminal theft statute.’” The covered statutory misconduct includes traditional theft, § 812.014, dealing in stolen property, § 812.019, as well as obtaining property through fake receipts, § 812.017. Further, the statutes (at § 812.022(1)) recognize that it may be civil theft, in certain circumstances, for a tenant to overstay a lease.
Courts traditionally did not permit a party to sue for civil theft concerning matters which were also subject to a contract. In the late-1980s, courts began to recognize that a lawsuit could simultaneously assert damages for civil theft as well as for breach of contract. This allowed wronged Florida businesses to recovery enhanced damages under civil theft for actions which also constituted breach of contract. See, for example, Nova Flight Ctr., Inc. v. Viega, 554 So. 2d 626 (Fla. 5th DCA 1989) (appellate court determined that the existence of a contract did not bar a civil theft action by a subtenant, when a tenant that the subtenant had a contract with broke into leasehold property to rerouted electrical wires to permit the tenant to reroute the subtenant’s electricity and the theft of avionic parts); Masvidal v. Ochoa, 505 So. 2d 555, 556 (Fla. 3d DCA 1987) (allowing claim for civil theft despite the existence of a contractual relationship).
Florida's Fourth District Court of Appeal in Heldenmuth v. Groll, 128 So. 3d 895 (Fla. 4th DCA 2013), explained that “the existence of a contractual relationship does not conclusively establish the absence of a civil theft; however, the civil theft ‘must go beyond, and be independent from, a failure to comply with the terms of a contract.’” Furthermore, the defendant must not merely be failing to comply with a contract, he must act with the malicious and “criminal intention.” Gasparini v. Pordomingo, 972 So.2d 1053 (Fla. 3d DCA 2008); see Heldenmuth v. Groll, 128 So. 3d 895 (Fla. 4th DCA 2013) (“If there was no factual basis to support a claim for conversion, there can be no cause of action for civil theft”). In addition, the recent federal court decision in Bayuk v. Prisiajniouk, 8:18-CV-00163-T-SPF, 2019 WL 7293591 (M.D. Fla. Dec. 30, 2019), explains that the plaintiff must establish the necessary criminal intent, i.e., that the defendant “had actual knowledge that she engaged in the act of theft.” See also, Healy v. Suntrust Serv. Corp., 569 So. 2d 458 (Fla. 5th DCA 1990) (Finding that a claim for civil theft requires “actual knowledge” of the act of stealing).
Courts are wary of aggrieved litigants simply claiming that a party that breached a contract had criminal intent, when what really had occurred was only breach of contract. “Where the property at issue is also the subject of a contract between the parties, a civil theft claim requires additional proof of ‘an intricate sophisticated scheme of deceit and theft.’” Gersh v. Cofman, 769 So. 2d 407 (Fla. 4th DCA 2000), quoting Trend Setter Villas of Deer Creek v. Villas on Green, 569 So.2d 766 (Fla. 4th DCA 1990). As long as a breaching party has a good faith belief that he was entitled to the property, he does not have the requisite criminal intent necessary to form the basis for a claim of civil theft. See Rosen v. Marlin, 486 So. 2d 623 (Fla. 3d DCA 1986).
For example, a party that could not return a deposit because of financial mismanagement would probably not have the necessary criminal intent to qualify for civil theft. By contrast, a party that spent a deposit for its own use probably would qualify. Burke v. Napieracz, 674 So.2d 756 (Fla. 1st DCA 1996) (Where the defendant's acts were “not merely a failure to perform, but an affirmative and intentional act of converting the funds to his own use by allegedly stealing the monies to which he was entrusted, there is not merely a breach of contract but a separate and independent tort”); Masvidal v. Ochoa, 505 So. 2d 555 (Fla. 3d DCA 1987) (determining that a defendant committed civil theft when a “defendant lawfully obtained possession of the plaintiff's funds to set up the escrow fund and thereafter converted the funds for his own use”).
In addition, for a breach of contract to qualify as civil theft, the misappropriated object must be discrete and identifiable. Miles Plastering & Associates, Inc. v. McDevitt & St. Co., 573 So. 2d 931, (Fla. 2d DCA 1991). While money need not be specifically identified in the sense that individual bills be identified by their serial number, “there must be an obligation to keep intact or deliver the specific money in question, so that money can be identified.” Gasparini v. Pordomingo, 972 So. 2d 1053 (Fla. 3d DCA 2008). “The fact that the amount is certain does not make an ‘identifiable fund.’ It is necessary to show that the same monies paid to [the defendant] were to be held by [defendant] for the benefit of [the plaintiff].” Florida Desk, Inc. v. Mitchell Intern., Inc., 817 So. 2d 1059, 1061 (Fla. 5th DCA 2002). “Money is said to be capable of identification where it is delivered ‘at one time, by one act and in one mass, or where the deposit is special and the identical money is to be kept for the party making the deposit.’” Futch v. Head, 511 So. 2d 314 (Fla. 1st DCA 1987); Walker v. Figarola, 59 So. 3d 188, 190 (Fla. 3d DCA 2011) (holding that it was not civil theft when a loan agreement did not contemplate the borrowing party “keep[ing] the $25,000 loan in a separate account or hold the funds in a trust or escrow account”); Escudero v. Hasbun, 689 So. 2d 1144 (Fla. 3d DCA 1997) (“[The plaintiff] has identified a specified sum of money from an identifiable account, allegedly belonging solely to her, that [the defendant] has allegedly misappropriated for his own use. We think that such allegations are sufficient to state a cause of action under the civil theft statute”).
It is also important to discuss risks that plaintiffs face when asserting a claim for civil theft in a lawsuit. When a plaintiff cannot prove that the breaching party had a criminal intent, the plaintiff can be held liable for the opposing party's attorney's fees. In Nodal v. Infinity Auto Ins. Co., 50 So. 3d 721 (Fla. 2d DCA 2010), an insurance company believed that the physicians with whom it contracted were defrauding it because of allegedly fake bills for services. The appellate court in Nodal determined that there were multiple potential explanations for the billing entries, including that they could have simply been mistakes. Nodal decided that the insurance company did not have sufficient factual or legal support to state a claim of civil theft. On this basis, the appellate court affirmed the the trial judge's decision to award attorneys’ fees to the physicians pursuant to Florida's civil theft statute.
Florida plaintiffs frequently sue corporations claiming violation of Florida’s Deceptive and Unfair Trade Practices Act. Plaintiffs often do so as a way around the difficulties in asserting claims for fraud. The Mavrick Law Firm has successfully defended against such lawsuits, including use of dispositive motions to defeat the claims.How Business Litigation Cases Are Handled
Mr. Mavrick meets with and listens to the client to meet the client’s needs. Business litigation generally requires careful review of key documents, determination of what other documents and witnesses are needed for the case, and an understanding of the law involved. For example, in a recent defense of a South Florida company, Mr. Mavrick met with the client and evaluated critical internal documents proving the invalidity of the vast majority of the plaintiff’s claim. With that evidence, Mr. Mavrick showed the plaintiff’s attorney that his case largely lacked merit. The case thereafter settled for a small fraction of what was demanded. It is important to understand that every case is unique, and the results in one case do not necessarily mean that the same results can be achieved in every case.
For over 27 years, Mr. Mavrick has successfully represented clients in business litigation and has substantial trial and arbitration experience, obtaining favorable jury trial, bench trial, and arbitration verdicts as well as favorable results in prosecuting or defending cases on appeal, both in Florida's District Courts of Appeal as well as in the federal Eleventh Circuit Court of Appeals. Mr. Mavrick has the highest peer-review rating from Martindale-Hubbell, of AV. He also has a rating of 10 out of 10 from lawyer rating service AVVO. Mr. Mavrick graduated with honors from Harvard Law School in 1992. He was awarded entry to Phi Beta Kappa.