Trial Perspectives

Disability Discrimination: Synopsis

Posted by David Adelstein on January 20, 2019
Trial Perspectives / Comments Off on Disability Discrimination: Synopsis

When it comes to disability discrimination, there are two key federal statutes.  The first is the American with Disabilities Act (ADA) and the second is the Rehabilitation Act.  Both statutes are governed under analogous standards and are designed at prohibiting discrimination against qualified individuals with disabilities.  There are numerous federal cases discussing both the ADA and the Rehabilitation Act and their application to a given factual scenario.  For purposes here, this synopsis will merely highlight key components to a disability discrimination claim.  It is important that a person that believes they have been discriminated against because of a disability to consult with counsel to ensure they understand their rights. 

To prove a claim for disability discrimination, a plaintiff must prove the following three elements: 1) he/she is disabled; 2) he/she is a qualified individual; and 3) he/she was subjected to unlawful discrimination because of his/her disability. 

There is no disability discrimination claim without a plaintiff proving each of these three elements.

 

First Element.  A person is disabled if he/she has “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.”  See ADA and Rehabilitation Act.  “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”  Id

 

Second Element.  A person is a qualified individual with a disability if they “with or without reasonable modifications to rules, policies, or practices…meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.”  See ADA and Rehabilitation Act.  

 

Third Element.  To prove unlawful discrimination, a plaintiff can either establish disparate treatment or failure to provide reasonable accommodations. 

Disparate treatment requires the plaintiff to prove animus such that they were singled out / discriminated against because of their disability (and people without a disability were treated differently).   In this instance, a defendant can counter this by establishing they had a legitimate reason for its action in which the burden will shift back to the plaintiff to argue that the plaintiff’s so-called legitimate reason is nothing but a pretext for disability discrimination.

A failure to provide reasonable accommodations requires the plaintiff to request reasonable accommodations that would allow them to perform essential functions of the job.  A defendant can counter this by arguing they denied the requested accommodation because it posed an undue hardship, i.e., it was not a reasonable accommodation.    

Both the ADA and the Rehabilitation Act contain an anti-retaliatory framework. So, let’s assume a person requests accommodations and those accommodations were denied and then that person was dismissed from their employment or educational status.  In this instance, the person may argue the defendant violated the ADA and the Rehabilitation Act by failing to provide them a reasonable accommodation.  The person may further argue that they were retaliated against by the defendant through their dismissal.  Similar to the above regarding disparate treatment, the defendant can rebut this by arguing they had a legitimate reason for plaintiff’s dismissal (that had nothing to do with the disability) in which the burden shifts back to the plaintiff to establish that the defendant’s proffered reason is a pretext for disability discrimination.

 

As mentioned above, there is a lot to disability discrimination claims and it is imperative a person that believes they have been discriminated against because of their disability consult with counsel to understand the nuances of the law and the application of the law to their specific factual claims.  This is just a synopsis relative to the framework of a disability discrimination claim.  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

Tags: , , , , , , , ,

Arbitration Clause – Narrow or Broad

Posted by David Adelstein on December 22, 2018
Trial Perspectives, Uncategorized / Comments Off on Arbitration Clause – Narrow or Broad

Arbitration, as a method of dispute resolution, is a creature of contract.  If you prefer to arbitrate disputes as opposed to litigating disputes in court, then you want a properly drafted arbitration provision in your contract.  If you want all disputes arising out of or relating to your contract to be arbitrated, then you want this specified in your contractual arbitration provision.  Conversely, if you want certain disputes not to be arbitrated or carved-out from arbitration, you want to clarify this in the arbitration provision.  The more clarity, the better, as it will avoid an issue down the road as to whether the dispute at-issue is subject to the arbitration provision.

Arbitration being a creature of contract was discussed in Vancore Construction, Inc. v. Osborn,43 Fla.L.Weekly D2769b (Fla. 5thDCA 2018) (internal citations omitted), which dealt with a contract between a purchaser and a homebuilder. This case, in particular, discussed the difference between a narrow arbitration provision and a broad arbitration provision. It is good practice to understand the difference, specifically if you negotiate or enter into contracts that contain an arbitration provision. As stated by the Vancore Construction Court:

Because arbitration provisions are contractual in nature, they are subject to the rules of contract interpretation.  The determination whether a dispute must be arbitrated “turns on the parties’ intent,” which is manifested in the plain language of the contract itself.  In general, courts favor arbitration provisions and “will try to resolve an ambiguity in an arbitration provision in favor of arbitration.”  Thus, if the language of the arbitration provision is sufficiently broad, courts will apply a liberal construction and require arbitration. 

Two types of arbitration provisions have emerged — those that are narrow in scope and those that are broad in scope.  Narrow arbitration provisions generally require arbitration for claims or controversies “arising out of” the subject contract, whereas arbitration provisions that are broad in scope usually require arbitration for claims or controversies “arising out of or relating to” the subject contract. When a contract contains a narrow arbitration provision, arbitration is only required when a litigant’s claims have a direct relationshipwith the terms and provisions contained in the contract.  In contrast, when a contract contains a broad arbitration provision, the court will compel arbitration when the party’s claims have a “significant relationship” to the contract.  The test to determine whether a “significant relationship” exists has been described as follows:

A “significant relationship” between a claim and an arbitration provision does not necessarily exist merely because the parties in the dispute have a contractual relationship. Rather, a significant relationship is described to exist between an arbitration provision and a claim if there is a “contractual nexus” between the claim and the contract. A contractual nexus exists between a claim and a contract if the claim presents circumstances in which the resolution of the disputed issue requires either reference to, or construction of, a portion of the contract. More specifically, a claim has a nexus to a contract and arises from the terms of the contract if it emanates from an inimitable duty created by the parties’ unique contractual relationship. In contrast, a claim does not have a nexus to a contract if it pertains to the breach of a duty otherwise imposed by law or in recognition of public policy, such as a duty under the general common law owed not only to the contracting parties but also to third parties and the public.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment

Posted by David Adelstein on December 03, 2018
Trial Perspectives / Comments Off on Non-Solicitation Agreements / Clauses and Proactively Soliciting Employment

Certain employment contracts will contain non-solicitation clauses.  Such clauses may be important if a company hires an employee for a specific project or purpose. Language may include that the employee agrees that she/he will NOT solicit employment with any other company associated with the project or purpose during the employment or a certain post-employment period.

For example, in Convergent Technologies, Inc. v. Stone, 43 Fla. L. Weekly D2521a (Fla. 1stDCA 2018), a company that provides cyber-security training for the US government entered into a subcontract to provide instructors for a program for Navy personnel.   The company hired employees to serve as instructors and made them sign non-solicitation agreements that the employees would not solicit employment with any other company associated with the program or six months after their employment period. 

During the course of the program, three employees left to join another subcontractor providing analagous services under the program.  The company then sued its former employees for violating the non-solicitation agreement.   The issue was whether the former employees’ behavior were proactive in soliciting employment with the other company, regardless of who made the initial contact (the employee or the other company). 

The First District Court of Appeals found this to be a question of fact: “[W]hether the terms of the non-solicitation agreements were violated here is largely predicated on the inferences to be drawn from the facts of Appellees’ [former employees] behavior prior to, and during, their negotiations with Epsilon [other company].

When signing an employment agreement with a non-solicitation clause, it is important to consider the ramifications of the clause and how it could impact your employment, particularly if you are looking to explore other similar opportunities.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , ,

Proposals for Settlement ONLY Apply to Claims for Monetary Relief

Posted by David Adelstein on December 02, 2018
Trial Perspectives / Comments Off on Proposals for Settlement ONLY Apply to Claims for Monetary Relief

While there are times I will serve a proposal for settlement to create an argument to recover attorney’s fees, I always tell clients proposals for settlement create nothing more than an argument.  In other words, you cannot bank on actually recovering attorney’s fees because of conflicting case law or case law that finds reasons to invalidate a proposal for settlement. Thus, when I serve a proposal for settlement, I make sure the client’s expectations are tempered.  But, when I receive a proposal for settlement on behalf of a client, I make sure the client appreciates that they can be liable for attorney’s fees regardless of the conflicting case law in effect.  Proposals for settlement, in my opinion, have become head scratchers. 

 

The case of Starboard Cruise Services, Inc. v. DePrince, 43 Fla. L. Weekly D2581a (Fla. 3d DCA 2018) exemplifies the confusing nature of proposals for settlement.  In this case, the defendant served a proposal for settlement conditioned on the plaintiff releasing all claims asserted in his amended complaint and dismissing the amended complaint with prejudice.  The plaintiff’s amended complaint contained claims for monetary relief and a specific performance claim for equitable relief (where non-monetary damages were sought).  Prior to trial, the plaintiff dismissed his equitable claim and proceeded to trial only on his claim for monetary relief. The jury found in favor of the defendant and the defendant filed a motion for attorney’s fees based on its proposal for settlement (that the plaintiff did not accept).  The trial court denied the defendant’s motion for attorney’s fees finding that the proposal for settlement was invalid since it applied to plaintiff’s claims for monetary relief and equitable relief. 

The appellate court agreed with the trial court finding that the defendant’s proposal for settlement was invalid because it was conditioned on the plaintiff releasing all his claims—his claims for monetary relief and his claim for equitable relief (where non-monetary relief was also sought).   A proposal for settlement only applies to claims for money damages.

Due consideration is required when serving a proposal for settlement.  Even with that consideration, there is still the possibility that the proposal for settlement will be deemed invalid, as was the circumstance in this case.  

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: ,

Must be a “Property Owner” to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act

Posted by David Adelstein on November 22, 2018
Trial Perspectives / Comments Off on Must be a “Property Owner” to Avail Yourself of the Bert J. Harris, Jr. Private Property Rights Protection Act

In a prior article, I discussed the Bert J. Harris, Jr., Private Property Rights Protection Act.   This Act is designed to provide statutory protection to a property owner when governmental action inordinately burdens (directly restricts or limits) the owner’s use of their property without the governmental action amounting to a taking.  Vale v. Palm Beach County, 43 Fla. L. Weekly D2591a (Fla. 4th DCA 2018).  This Act, however, does NOT apply if governmental action does not inordinately burden YOUR property, i.e., property you own.  

For example, in Vale, a group of homeowners purchased property in a planned used development next to a golf course.  The golf course was part of the planned unit development but the homeowners did not own the golf course.  The development of the golf course was unsuccessful and it was rezoned for residential development.  The homeowners sued the County under the Act claiming that the rezoning inordinately burdened their property by diminishing the value of their homes, which they anticipated to be next to a golf course.  The trial court, as affirmed by the appellate court, dismissed this argument because the homeowners did not own the golf course: “As it is undisputed that plaintiffs do not hold legal title to the former golf course, they are not ‘property owners’ as contemplated under the Act.”  Vale, supra.  Hence, the homeowners did not have standing under the Act to sue the County based on the rezoning of the golf course. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

Tags: , , , , ,

Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member

Posted by David Adelstein on November 17, 2018
Appeal, Trial Perspectives / Comments Off on Involuntary Dismissal should have been Granted because Damages Rested with LLC and Not Its Member

During a bench trial, the defendant moved for an involuntary dismissal after the plaintiff’s case-in-chief.  The defendant argued the plaintiff had no standing.  The trial court denied the motion and a judgment was ultimately entered in favor of the plaintiff.  The defendant appealed.  On appeal, the appellate court reviews on a de novo standard of appellate review a trial court’s ruling on a motion for involuntary dismissal.  In doing so, the trial court reversed the trial judge with directions to enter judgment in favor of the defendant.  Why?

Well, this case involved a member of a limited liability company (LLC), the plaintiff, filing a lawsuit against a third-party, the defendant, due to a real estate transaction.  The overriding problem for the plaintiff was that the damages he was suing for were damages associated with his LLC, and not him individually. “Generally, a shareholder of a corporation or a member of an LLC may not maintain an action in his or her own right if the cause of action is derived from the right of the corporation or the LLC to bring the action.” Home Title Co. of Maryland, Inc. v. LaSalla, 43 Fla.L.Weekly D2561a (Fla. 2d DCA 2018).  Because the plaintiff (member of the LLC) was suing for damages that directly belonged to the LLC, the cause of action rested with the corporation.  Id. (“The property belonged to the LLC, and thus, the LLC suffered the direct harm when Home Title [third-party] transferred the property…Even though LaSalla [plaintiff-member] is the only other member of the LLC who suffered as a result of the transfer, the harm to him individually was indirect and the result of the harm to the LLC.”). 

The moral of this case is make sure you have standing to sue for the damages/injuries you are suing for.  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , ,

If You File a Frivolous Motion or Pleading: BEWARE

Posted by David Adelstein on November 03, 2018
Trial Perspectives / Comments Off on If You File a Frivolous Motion or Pleading: BEWARE

If you file a frivolous motion or pleading: BEWARE.  Appellate courts are taking seriously frivolous filings. Frankly, they should!  

In a recent case, Mark W. Rickard, P.A. d/b/a Law Guard v. Nature’s Sleep Factory Direct, LLC, 43 Fla.L.Weekly D2438b (Fla. 4th DCA 2018), a plaintiff voluntarily dismissed its lawsuit prior to trial.  The defendant than filed a motion for prevailing party attorney’s fees.  However, the defendant NEVER pled an actual entitlement to attorney’s fees. The plaintiff served a Florida Statute s. 57.105 motion that is designed to notify a party of a frivolous filing and give them a safe-harbor time period to withdraw the filing before sanctions (attorney’s fees and costs) can be imposed.  The defendant withdrew its motion, albeit too late–after the safe harbor period expired.  

The trial court denied the plaintiff’s Florida Statute s. 57.105 motion for sanctions. The plaintiff appealed and the appellate court reversed finding that the defendant’s motion for attorney’s fees without a basis was frivolous and its withdrawal of the motion was too late since it came after the expiration of the safe harbor time period: 

Section 57.105(1) provides for attorney’s fees as sanctions for being forced to participate in frivolous litigation. In determining whether to award such fees, “[t]he [trial] court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.” Motions for attorney’s fees count as “claims.” 

Typically, a party seeking attorney’s fees must specifically allege and request the award in the pleadings…. However, Appellees’ counsel failed to withdraw the meritless motion until well after the safe harbor period had passed….

Mark W. Rickard, P.A. d/b/a Law Guard, supra (internal citations omitted).

Frivolous filings are a big deal. A filing is deemed frivolous if a party or its counsel knew or should have known that a claim or defense was not supported by the facts or application of existing law.  In this case, the defendant and its counsel should have known the motion was frivolous under existing law.  The fact that the defendant’s counsel ultimately recognized this and withdraw the motion was of no moment because it was too late–after the expiration of the safe harbor period.  

Thus, if you file a frivolous motion of pleading: BEWARE

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

Tags: , , , ,

Not Everything a Potential Judgment Debtor Does Constitutes a Fraudulent Transfer

Posted by David Adelstein on October 28, 2018
Trial Perspectives / Comments Off on Not Everything a Potential Judgment Debtor Does Constitutes a Fraudulent Transfer

Not everything a potential judgment debtor does constitutes a fraudulent transfer to avoid anticipated collection efforts from a judgment creditor.  This does not mean arguments cannot and should not be made.  It just means that just because a potential judgment debtor does something does not automatically translate into a fraudulent transfer.

In a recent post-judgment collection case, Villamizar v. Luna Capital Partners, LLC, LLC, 43 Fla.L.Weekly D2395a (Fla. 3d DCA 2018),  a plaintiff (judgment creditor) recovered a judgment against a defendant on unsecured promissory notes (i.e., the notes were not secured by any mortgage).  During the underlying lawsuit, the defendant sold condominium units to a bulk buyer for approximately $13 Million.  Although the defendant and buyer shared a similar name, they were unrelated parties, and there was no evidence that they were related parties.  Thereafter, the plaintiff recovered a judgment against the defendant and, through post-judgment collection efforts, sued the new buyer arguing that the bulk sale of condominium units was a fraudulent transfer. 

The plaintiff (judgment creditor) first argued that the new buyer had some duty to the plaintiff simply because it knew that the plaintiff was suing the defendant / seller of the units on unsecured promissory notes.  The appellate court, affirming the trial court, dismissed this argument, as it should:

Luna Capital’s [buyer of units] awareness that Mr. Nieto [plaintiff / judgment creditor] was suing the seller, Luna Developments [defendant / seller of units], on unsecured indebtedness that had not yet been reduced to judgment, did not create a legal duty on Luna Capital’s part. This is so because there is nothing in this record to suggest that Luna Capital was partially or totally controlled by Luna Developments at the time of the sale, or that these entities were under common control, or that they were anything other than a buyer and seller dealing at arm’s length.

***

Luna Capital’s alleged knowledge of Luna Development’s debts did not impose a legal duty on Luna Capital’s part to assure that specific unsecured creditors of Luna Development were paid. Luna Capital naturally assured that all liens against the condominium units were paid from the proceeds and satisfied of record, but payment of an unsecured claim in a lawsuit pending trial is not such a matter.

***

Buyers may insist (by contract) on escrows to cover claims-in-process “which, if successful” might become a judgment lien after the closing, but an arm’s length buyer at a fair market price is not under a legal duty to do so for the protection of such claimants.

Villamizar, supra.

The plaintiff / judgment creditor next argued that the property was not sold for reasonably equivalent value.  However, the plaintiff did not even retain an expert appraiser to support this argument, rendering this theory speculative from the get-go.  The appellate court, affirming the trial court, dismissed this argument too, as it should:

Mr. Nieto’s [plaintiff / judgment creditor] affiant [attorney expert] provided a back-of-the-envelope computation questioning whether the per-unit price was below market. Unsubstantiated “guesstimates” of what inflation might have done to values, or what appreciation or depreciation might have been expected during the period Luna Developments [judgment debtor] owned the property, create no genuine issue as against the competent, substantial evidence of an actual arm’s length sale between “a purchaser willing but not obliged to buy” and “one willing but not obliged to sell.” 

***

Mr. Nieto did not file an appraisal or other evidence probative of actual market value of the condominium units as of the July 2015 sale.

Villamizar, supra

The reality is that the defendant / judgment debtor sold condominium units prior to the plaintiff / judgment creditor obtaining a final judgment on unsecured promissory notes.  There was no evidence that the buyer was merely a straw party or that the sale was intended to delay, hinder, or defraud the defendant’s creditors, such as the plaintiff.  And, on top of that, there was nothing to suggest that the sale was not at fair market value or reasonably equivalent value such that the transaction was really not an arm’s length transaction.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , ,

A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause

Posted by David Adelstein on October 14, 2018
Trial Perspectives / Comments Off on A Party may Not Expand the Scope of Judicial Review of an Arbitration Clause

Arbitration is a creature of contract.  This means if you are going to arbitrate a dispute, as opposed to litigating a dispute, there must be an agreement to arbitrate.  However, whether a dispute should be arbitrated pursuant to the terms of the contract is an area that has been heavily litigated for a couple of reasons: 1) a party does not want to arbitrate the dispute and, therefore, files a lawsuit versus a demand for arbitration and 2) an opposing party that has been sued wants to enforce an arbitration provision in a contract.  As a result, an order granting or denying arbitration is an appealable non-final order

In a recent construction dispute between a general contractor and its millwork subcontractor, National Millwork, Inc. v. ANF Group, Inc., 43 Fla.L.Weekly D2207a (Fla. 4th DCA 2018), the subcontractor filed a lawsuit against the general contractor and the general contractor’s payment bond.  The general contractor moved to stay the litigation and compel arbitration pursuant to the arbitration provision in the subcontract.  The subcontractor argued that the arbitration provision was unenforceable, and, therefore, void, because it expanded the scope of judicial review after an arbitrator renders an arbitration award contrary to the Revised Florida Arbitration Code in Florida Statutes Chapter 682 (and, specifically, Florida Statute s. 682.014). 

The arbitration clause in the subcontract empowered the court to address on judicial review any failure by the arbitrator to properly apply the law and if the court or arbitrator failed to properly apply the law then this was subject to appellate review. 

This clause was creating an appellate basis to challenge an arbitration award based on a party’s position that the arbitrator did not correctly apply the law.  However, challenging an arbitrator’s award is very limited to discrete statutory circumstances and a party’s position that the arbitrator did not correctly apply the law is not one of them.   For this reason, the millwork subcontractor claimed the arbitration provision is void against public policy because it expanded the statutory circumstances to challenge an arbitration award set forth in the Revised Florida Arbitration Code.  The appellate court agreed: “A party may not expand the scope of judicial review of an arbitration agreement.”  National Millwork Inc., supra

The contract had a severability clause, an important clause in contracts.  Based on the severability clause, the appellate court remanded the issue back to the trial court to determine whether the unenforceable language in the arbitration clause that expanded judicial review of an arbitrator’s award could be severed from the clause such that the parties are still required to arbitrate without the expanded judicial review.   In other words, the appellate court wanted the trial court to determine whether severing the unenforceable language would still retain the essence of the arbitration clause or whether the entire clause was unenforceable because the offending language was integral to the agreement to arbitrate.  See National Millwork, Inc. supra, citing Obolensky v. Chatsworth at Wellington Green, LLC, 240 So.3d 6 (Fla. 4th DCA 2018).

It would seem that the offending language expanding the scope of judicial review of an arbitration award could be, and should be, severed.  This is the value and point of a severability clause in a contract.  It is uncertain why the appellate court did not make this ruling instead of remanding the matter back to the trial court which could lead to a further appeal.  Severing the offensive language still requires the parties to arbitrate, which is the basis of the arbitration clause, but without the appellate recourse / judicial review of a party challenging the arbitrator’s award based on an incorrect application of law. 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , , ,

Economic Damages Must be Based on Competent Substantial Evidence

Posted by David Adelstein on September 22, 2018
Trial Perspectives / Comments Off on Economic Damages Must be Based on Competent Substantial Evidence

Economic damages must be supported by substantial competent evidence.  Stated differently, economic damages cannot be speculative and the amount of the damages must be quantifiable.  Putting on speculative, unquantifiable damages at trial can be fatal to a claim because damages should be the most important part of a claim.  If damages cannot be proven, there is no claim, so making sure damages can be supported with competent substantial evidence is beyond important.

The recent decision of Alvarez v. All Star Boxing, Inc., 43 Fla.L.Weekly D2102a (Fla. 3d DCA 2018) establishes what can happen if a party puts on speculative damages.  This case involved the famous professional boxer Canelo Alvarez.  He was sued by a former promoter and a jury found he was liable in unjust enrichment to the promoter to the tune of $8.5 Million.  Unjust enrichment damages typically focus on the reasonable value of the labor or services performed or the reasonable value of such labor or services to the party that was unjustly enriched.   Alvarez, supra.  In this case, however, the promoter put on a forensic accountant to support damages associated with a percentage of Canelo Alvarez’s earnings during a certain period—a type of lost profits methodology.  The appellate court avoided addressing the issue of whether lost profits can form unjust enrichment damages, and instead, focused on the fact that the methodology utilized by the promoter to calculate lost profits was wholly speculative. The methodology and damages did not rest on a reasonable basis but were grounded in a lot of guesswork.  As a result, the $8.5 Million jury verdict could not stand.  The appellate court remanded back to the trial court to reconsider a motion of remittitur–a motion to reduce the damages–to reduce the damages based on evidence at trial that supported the reasonable value of the promoter’s expenses and services and, if not, to enter judgment in favor of the defense. 

 

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

Tags: , , , ,

Contact Me Now

Prove YOUR Case!

Contact:

David Adelstein ♦

(954) 361-4720 ♦

dadelstein@gmail.com