By Carolina Bolado LAW 360 | January 1, 2019
Florida state appellate courts will be busy in the coming year tackling thorny disputes on local minimum wage ordinances, insurance assignment of benefits practices and medical marijuana. Attorneys are also keeping an eye on the upcoming changes at the Florida Supreme Court, where the three most liberal justices — Justices Barbara Pariente, Peggy Quince and R. Fred Lewis — are retiring and will be replaced by appointees from incoming Republican Governor Ron DeSantis.
Katherine Giddings, deputy chair of the litigation practice group at Akerman LLP, said many of the court’s big decisions have split 4-3.
“I suspect a lot of people who have been dissatisfied with the direction the court has gone will try to bring up new cases involving business and insurance and the standards to be applied,” Giddings said.
Here are some key cases attorneys will be watching in 2019.
Perez Trading Co. v. Berkowitz Pollack Brant Advisors and Accountants LLP
A professional negligence suit against auditor Berkowitz Pollack Brant Advisors and Accountants LLP could affect how law firms in Florida draft their engagement letters with clients.
In the suit, paper products company Perez Trading Co. Inc. claims Berkowitz Pollack was negligent in its audits and failed to uncover an $8 million invoicing scheme run by a Perez Trading manager. The company went after the arbitration clause in the parties’ agreement because it prevents an arbitration panel from awarding damages in excess of the audit fees, even though the alleged negligence led to millions of dollars in damages.
In December, Miami-Dade Judge Beatrice Butchko declared that the arbitration provision in Berkowitz Pollack’s agreement with Perez Trading was void because parts of the agreement, including a cap on damages, are contrary to public policy and precedent set by the Third District Court of Appeal.
Both arbitration agreements and caps on damages are commonly used by law firms in engagement letters with their clients, according to Etan Mark of Mark Migdal & Hayden. Depending on how the Third District rules on Berkowitz Pollack’s appeal of Judge Butchko’s ruling, law firms may have to modify their arbitration clauses.
“You’ll see in 2019 a lot of law firms change their engagement letters based on that ruling,” Mark said.
The case is Perez Trading Co. v. Berkowitz Pollack Brant Advisors and Accountants LLP, case number 2018-14187-CA, in the Eleventh Judicial Circuit Court of Florida.
City of Miami Beach v. Florida Retail Federation
The Florida Supreme Court will hear a case in March that could determine how much latitude municipalities in the state can have in passing minimum wage laws.
The court will hear oral argument in Miami Beach’s fight defending its minimum wage hike, which the Third District blocked because of a 2003 state law prohibiting local minimum wage ordinances. The city argues that its ordinance is allowed under the 2004 voter-approved Minimum Wage Amendment to the state constitution that requires Florida’s minimum wage to rise with inflation.
“It’s sort of a push and pull between the Florida constitutional amendment and the preemption statute,” Mark said. “The amendment is really not explicit is the problem they’re running into.”
David Weinstein of Greenberg Traurig LLP said the business community is watching the case closely, as they are concerned about other municipalities following suit and creating a patchwork quilt of minimum wages that make it difficult for businesses working on a statewide basis.
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