A recent appellate decision came out regarding contingency fee multipliers–the incentive for taking a case on contingency.  

I included a thorough discussion on the requirements establishing a contingency fee multiplier here.  Check out this discussion that goes into establishing reasonable attorney’s fees and then the contingency fee multiplier.

Notably, in this case, the appellate court affirmed that the elements associated with establishing an entitlement to a contingency fee multiplier are as follows:

(1) whether the relevant market requires a contingency fee multiplier to obtain competent counsel (i.e., whether there are attorneys in the relevant market and would have taken the case on contingency absent the availability of the multiplier);

(2) whether the attorney was able to mitigate the risk of nonpayment in any way; and

(3) whether any of the factors set forth in Rowe (the reasonable attorney’s fees factors) are applicable, especially, the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.  This is looked at through the lens of the counsel at the time the counsel takes the case, and not with the benefit of hindsight.

There are a number of reasons for an attorney to take a matter on contingency.  While there is certainly a risk, there is also the prospect of an award, and with the contingency fee multiplier, the incentive is that a multiplier could be added to reasonable attorney’s fees to increase the amount of awarded fees. 

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.

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“An order on a motion for temporary injunction entered by a trial court must be based on [1] the likelihood of irreparable harm, [2] the unavailability of an adequate remedy at law, [3] the substantial likelihood of success on the merits, and [4] considerations of public interest.”  XIP Technologies, LLC v. Ascend Global Services, LLC,  43 Fla.L.Weekly D1850a (Fla. 2d DCA 2018).  A trial court’s order granting a temporary injunction must contain clear factual detail to support each of these four prongs.  Id.

A trial court has discretion to grant or deny a motion for temporary injunction.  Its discretion, however, is not absolute and will be reviewed under an abuse of discretion standard of appellate review.  It will be deemed an abuse of discretion if an injunction is issued where the moving party has an adequate remedy at law or there has not been strict compliance with the factual detail needed to support the injunction.

In XIP Technologies, LLC, a defendant provided software that allowed the plaintiff to accept credit card payments from its customers and tracked all customer information, transactions, and purchases.  Due to a dispute, the defendant stopped transferring credit card payments to the plaintiff, stopped providing the plaintiff the tracked customer data, and stopped accepting credit card payments from the plaintiff’s customers.  The plaintiff stopped paying the defendant the required monthly fee for the software.  The plaintiff sued the defendant and moved for a temporary injunction that, among other things, required the defendant to pay the plaintiff the withheld credit card payment amounts, provide the plaintiff the tracked customer data, and continue to accept credit card payments from the plaintiff’s customers. The trial court granted the injunction.

On appeal, the defendant argued that it was wrong to order it to pay the plaintiff the withheld credit card payments because that payment constitutes an adequate remedy at law and injunctive relief is only when a party does NOT have an adequate remedy at law.  The appellate court agreed:  “If indeed XIP [defendant] is determined to be in breach of the parties’ contract, Ascend [plaintiff] will have an adequate remedy at law in the form of damages to replace the withheld revenue.  Because damages are available, there is no irreparable harm.” XIP Technologies, LLC, supra. 

The appellate court, on the other hand, found that injunctive relief could be appropriate relating to the customer data and refusal of the defendant to continue to process credit card payments of the plaintiff’s customers.   However, the trial court’s order was insufficient in that it did NOT contain sufficient factual detail supporting all of the four prongs to justify the issuance of a temporary injunction.  In particular, the trial court’s order did not include factual detail regarding requirements 3 (the substantial likelihood of success on the merits) and 4 (considerations of public interest).  For this reason, as to these issues, the appellate court remanded back to the trial court to enter a temporary injunction as to these issues “but only if it includes the required findings as to each of the necessary four prongs.”  XIP Technologies, LLC, supra.  

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.

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Earlier this year I wrote an article regarding proving the defense of unilateral mistake.  In that article, I discussed a case where the appellate court ruled a party asserting the defense of unilateral mistake must prove that the mistake was induced by the party seeking to benefit from the mistake.  Based on this opinion, a party moved for a rehearing en bank under Florida Rule of Appellate Procedure 9.331–see applicable portion of 9.331(d)(1)–arguing that in some prior opinions the appellate court required a party asserting unilateral mistake to prove inducement, and in other decisions it did not. 

The appellate court granted the rehearing en bank to address this undeniable conflict and lack of uniformity holding that inducement is NOT a required element in proving unilateral mistake:  “We conclude that inducement is not an element of unilateral mistake. A contract may be set aside on the basis of a unilateral mistake of material fact if: (1) the mistake was not the result of an inexcusable lack of due care; (2) denial of release from the contract would be inequitable; and (3) the other party to the contract has not so changed its position in reliance on the contract that rescission would be unconscionable.”  DePrince v. Starboard Cruise Services, Inc., 43 Fla.L.Weekly D1734a (Fla. 3d DCA 2018).   Without the inducement element, the defense of unilateral mistake becomes easier to prove.

9.331(d)(1) Generally. A rehearing en banc may be ordered by a district court of appeal on its own motion or on motion of a party. Within the time prescribed by rule 9.330, a party may move for an en banc rehearing solely on the grounds that the case or issue is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions. A motion based on any other ground shall be stricken. A response may be served within 10 days of service of the motion. A vote will not be taken on the motion unless requested by a judge on the panel that heard the proceeding, or by any judge in regular active service on the court. Judges who did not sit on the panel are under no obligation to consider the motion unless a vote is requested.

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.

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