Web-based sales businesses and the attorneys advising them should be aware of the Florida Fourth District Court of Appeal’s decision in Vitacost.com, Inc. v. McCants, No. 4D16-3384 (Fla. 4th DCA Feb. 15, 2016). Although arbitration agreements are favored and normally enforced, a different analysis applies to agreements formed through internet “browsewrap” agreements. In Vitacost, the court noted the purchaser must have actual knowledge of the terms and conditions of sale, or a hyperlink to the terms and conditions of sale must be conspicuous enough to put a reasonably prudent person on inquiry notice. “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.”
Tom Appeals Blog
News and Observations About Law and Society
"Considerate men, of every description, ought to prize whatever will tend to beget or fortify that temper in the courts; as no man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today." --The Federalist, No. 78
A divided Florida Supreme Court declined to adopt the Legislature’s Daubert Amendment concerning opinions of expert witnesses. Justices Canady and Polston would have adopted the Daubert standard, as have the federal courts and most other states. All of the justices agreed, however, to reject a legislative amendment that would require standard-of-care expert witnesses in medical malpractice cases to specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered. The court also unanimously agreed not to adopt a legislative change to the hearsay exception relating to reports of abuse concerning elderly and disabled adults. The court’s opinion is available HERE.
Although the justices of the Supreme Court of Florida often disagree, their approach to disciplinary cases is more uniform. In The Florida Bar v. Wynn, the court unanimously rejected a referee’s recommendation of a ninety day suspension and instead imposed a one year suspension followed by two years of rehabilitative probation. The sanction is significant not only because the suspension is nine months longer but also because the process of returning to practice is more difficult for suspensions of more than ninety days. The fact the lawyer’s conduct involved $500 earmarked as trust funds played a key part in the court’s decision:
Respondent converted client funds for his own use and repaid the funds at a later time. In addition . . . he attempted to condition the repayment upon the client’s agreement not to complain to the Bar about his misconduct. Based on the existing case law, we conclude that the Bar is correct that a one-year suspension, followed by two years’ probation with the conditions recommended by the referee, is warranted. As we have noted many times, misuse or misappropriation of client funds is one of the most serious offenses a lawyer can commit, and disbarment is presumed to be the appropriate punishment.
THIS Facebook page, discusses and links the Third District Court of Appeal’s decision yesterday upholding the constitutionality of Florida’s 2012 PIP Act as it applies to chiropractors. The court not only upheld the exclusion of chiropractors from the list of professionals who can make an Emergency Medical Condition diagnosis but also limited benefits to $2,500 where the insured has no diagnosis concerning the presence or absence of an emergency medical condition.
My firm’s social media activities went dark during the second half of 2016 as I spent most of that time engaged in the political process. Suffice it to say the experiences and new friendships formed during that time were rewarding and invigorating.
I am now back in the saddle. Keep an eye out for the upcoming launch of my firm’s updated website. I make a point of staying abreast of developments in the law and developments affecting the practice of law and will be sharing items of interest here and on Facebook and Twitter.
From the earliest days of my career I have believed clients deserve value on top of the best representation we lawyers have to offer. Now, clients expect value. An article I read last week referenced a recent survey of more than 70,000 consumers. The survey yielded a big surprise: customer satisfaction is a weak predictor of long-term loyalty. The take away was that lawyers must provide quality representation in ways that make the client’s experience effortless. That’s no small order, especially in litigation matters. But–ready or not–that is the new reality.
Another recent study involving more than 800 law firms and corporations revealed that more than half of the firms and sixty percent of companies already use “alternative legal service providers” to lower fees and costs and to access special skills. The message again is that lawyers must provide value, even if that means bringing in an outsider.
Whether you are a potential client looking for experience and value or a lawyer looking to create value by bringing in specialized knowledge, let’s talk. I’m here to help.
According to THIS press release, the Supreme Court of Florida recently disciplined 24 lawyers — “disbarring four, revoking the licenses of four, suspending nine and publicly reprimanding seven. Five attorneys were also placed on probation.”
By a vote of 5 to 2, the Supreme Court of Florida today declared the mandatory fee schedule in section 440.34, Florida Statutes, unconstitutional in Castellanos v. Next Door Company.
This case asks us to evaluate the constitutionality of the mandatory fee schedule in section 440.34, Florida Statutes (2009), which eliminates the requirement of a reasonable attorney’s fee to the successful claimant. Considering that the right of a claimant to obtain a reasonable attorney’s fee has been a critical feature of the workers’ compensation law, we conclude that the mandatory fee schedule in section 440.34, which creates an irrebuttable presumption that precludes any consideration of whether the fee award is reasonable to compensate the attorney, is unconstitutional under both the Florida and United States Constitutions as a violation of due process.
Justices Canady and Polston dissented. Justice Canady began by stating “the majority fail[ed] to directly address the actual policy of the statute,” which he described as a “determination by the Legislature that there should be a reasonable relationship between the value of the benefits obtained in litigating a workers’ compensation claim and the amount of attorney’s fees the employer or carrier is required to pay to the claimant.” Justice Polston believes the majority opinion “has rewritten the statute to avoid the standard governing facial challenges.”
The opinion is available HERE.
[T]he Court rejects the Stipulation and disapproves the proposed sanction. In addition to the public reprimand agreed to in the Stipulation, the Court would require successful completion of an anger management course and attendance at the domestic violence course offered during Phase II of the Florida Judicial College. Should the parties agree to these terms, a revised consent judgment shall be filed with the Court within thirty days of the date of this order.
If the parties do not agree to these terms, the parties must inform the Court within thirty days that they have not reached an agreement. In that event, this case (SC16-548) will be returned for a hearing before the Florida Judicial Qualifications Commission.
Today, in State v. McAdams, No. 14-826 (Fla. April 21, 2016), the Supreme Court of Florida held:
[W]hen a person is questioned in a location that is not open to the public, and an attorney retained on his or her behalf appears at the location, the Due Process Clause of the Florida Constitution requires that law enforcement notify the person with regard to the presence and purpose of the attorney, regardless of whether he or she is in custody.
Two justices concurred in part and dissented in part because the majority applied the rule to voluntary interactions with law enforcement officers. The concurring justices would limit the rule to confessions obtained only after the suspect is in custody.
According to the opinion, “compelling evidence of McAdams’s guilt was presented to the jury through his confession, in which he admitted that after being berated by his estranged wife and her new boyfriend at the Palomino Lake Drive residence, he became outraged, retrieved a gun from outside the residence, fatally shot them, buried the bodies in a rural area, and disposed of the weapon.” Because the unlawfully obtained confession contributed to the convictions, the court overturned the convictions.
THIS article tells of a New York court that upheld a 13 year old’s right to not visit his father but that also held the father should not have to pay child support.