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On January 19, 2024, the Florida Bar (“the Bar”), backed by a unanimous endorsement by the Bar’s Board of Governors, issued an ethics opinion (Opinion 24-1) related to the topic of artificial intelligence (“AI”).[1] With the rise in popularity of ChatGPT and similar products, it is necessary for the legal community to take note and adapt to the changing landscape of the practice of law. The Bar began the advisory opinion by noting, “Lawyers may use generative artificial intelligence (‘AI’) in the practice of law, but must protect the confidentiality of client information, provide accurate and competent services, avoid improper billing practices, and comply with applicable restrictions on lawyer advertising.”[2] Regarding maintaining client confidentiality, the Bar asserted that attorneys must research “the program’s policies on data retention, data sharing, and self-learning.”[3] The Bar stressed that lawyers are responsible for their work product and must “develop policies and practices to verify that the use of generative AI is consistent with the lawyer’s ethical obligations.”[4] For example, the Bar shared the story of a federal judge in New York sanctioning “two unwary lawyers and their law firm following their use of false citations created by generative AI.”[5] The Bar noted that lawyers must not engage in improper billing practices due to the use of AI, including double billing.[6] The Bar further advised that chatbots “must comply with restrictions on lawyer advertising and must include a disclaimer indicating that the chatbot is an AI program and not a lawyer or employee of the law firm.”[7]  The Bar encouraged lawyers to “educate themselves regarding the risks and benefits of new technology.”[8]

Regarding confidentiality, the Bar stressed that it is recommended that attorneys “obtain the affected client’s informed consent prior to utilizing a third-party generative AI program if the utilization would involve the disclosure of any confidential information.”[9] The Bar went on to warn about “‘self-learning’” AI, and the potential for a client’s information to be revealed to third parties in response to future inquiries.[10] The Bar stated that ethics opinions related to other matters, including cloud computing and overseas paralegals, provide guidance to attorneys when using third-party generative AI programs.[11] The Bar’s focus is very much the protection of client confidentiality.[12] The Bar did note that “[i]f the use of a generative AI program does not involve the disclosure of confidential information to a third-party, a lawyer is not required to obtain a client’s informed consent pursuant to Rule 4-1.6.”[13]

Regarding oversight of generative AI, the Bar looked to Rule 4-5.3(a) and related ethics opinions regarding nonlawyer assistants.[14] As an initial matter, attorneys must ensure that the conduct of the AI program “is compatible with the lawyer’s own professional obligations[.]”[15] As noted above, a lawyer must also review the work done by the AI program, as they are responsible for the work product.[16] If a lawyer fails to verify the accuracy of the work product, he or she may be subject to discipline.[17] The Bar cautioned attorneys that “a lawyer should be wary of utilizing an overly welcoming generative AI chatbot that may provide legal advice, fail to immediately identify itself as a chatbot, or fail to include clear and reasonably understandable disclaimers limiting the lawyer’s obligations.”[18]

Regarding fees and costs, the Ethics Opinion made it clear that “a lawyer may not ethically engage in any billing practices that duplicate charges or that falsely inflate the lawyer’s billable hours.”[19] If an attorney wishes to charge a client for the use of generative AI, the applicable “standards require a lawyer to inform a client, preferably in writing, of the lawyer’s intent to charge a client the actual cost of using generative AI.”[20] If an attorney cannot determine the cost for a particular client, the charges should be accounted for as overhead and not prorated to the client.[21] The Bar closed the section on fees and costs by noting, “while a lawyer may charge a client for the reasonable time spent for case-specific research and drafting when using generative AI, the lawyer should be careful not to charge for the time spent developing minimal competence in the use of generative AI.”[22]

Finally, regarding advertising, the Bar again cautioned lawyers that they are responsible for the information provided by an AI chatbot.[23] It is imperative that attorneys who use chatbots on their websites make it clear that the prospective client is speaking to a chatbot.[24] Finally, the Bar noted, “Lawyers may advertise their use of generative AI but cannot claim their generative AI is superior to those used by other lawyers or law firms unless the lawyer’s claims are objectively verifiable.”[25] Thus, unless an attorney is utilizing Deep Thought from The Hitchhiker’s Guide to the Galaxy that can provide the answer to life, the universe, and everything, it is unlikely that an attorney will be able to make such a claim.[26]

As AI evolves and becomes more common throughout the legal field, it is important for lawyers and clients alike to understand the limits of the technology and the rules adopted by the Bar and courts related to its use. In closing its ethics opinion, the Bar noted, “lawyers should continue to develop competency in their use of new technologies and the risks and benefits inherent in those technologies.”[27]

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.[28]

[1] The Ethics Opinion can be found at https://www.floridabar.org/etopinions/opinion-24-1/ (last visited Aug. 6, 2024).

[2] Id., at *1.

[3] Id.

[4] Id.

[5] Id., at *2. For more information, see Mata v. Avianca, 22-cv-1461, 2023 WL 4114965, at *17 (S.D.N.Y. June 22, 2023).

[6] Id., at *1.

[7] Id.

[8] Id.

[9] Id., at *2.

[10] Id.

[11] Id., at *3.

[12] Id.

[13] Id., at *3-4.

[14] Id., at *4.

[15] Id.

[16] Id.

[17] Id.

[18] Id., at *5.

[19] Id., at *6.

[20] Id.

[21] Id.

[22] Id.

[23] Id., at *7.

[24] Id.

[25] Id.

[26] Douglas Adams, The Hitchhiker’s Guide to the Galaxy (New York, Harmony Books, 1980).

[27] Fla. Bar Ethics Op. 24-1, at *7.

[28] In case you were wondering, this blog post was written by a human, not AI.

Photo by Igor Omilaev on Unsplash

On June 28, 2024, the United States Supreme Court (“the Court”) rendered its opinion in Loper Bright Enterprises, et al. v. Raimondo, Secretary of Commerce, et al. (“Loper Bright”).[1] In a 6-3 opinion authored by Chief Justice Roberts, the Court changed how courts will approach cases involving the interpretation of statutes by federal agencies. This opinion, although not involving employment law (it involved rules related to fisheries), will have wide-ranging consequences for courts moving forward when examining interpretations from agencies such as the Equal Employment Opportunity Commission (“the EEOC”) and the Department of Labor (“the DOL”).  Before turning to the Court’s analysis, it is important to understand the Chevron doctrine.

In Chevron USA Inc. v. Natural Resources Defense Council, Inc., 476 U.S. 837 (1984) (“Chevron”), the Court rendered an opinion that “sometimes required courts to defer to ‘permissible’ agency interpretations of the statutes those agencies administer—even when a reviewing court reads that statute differently.”[2] The Court established “a two-step framework to interpret statutes administered by federal agencies.”[3] If the preconditions under Chevron were met, the first step was for a court to determine “‘whether Congress has directly spoken to the precise question at issue.’”[4] If congressional intent was clear, that would end the analysis.[5] If not, the second step was for a court to “defer to the agency’s interpretation if it ‘is based on a permissible construction of the statute.’”[6]

In overturning Chevron, the Court first provided a history of Article III of the Constitution, which “assigns to the Federal Judiciary the responsibility and power to adjudicate ‘Cases’ and ‘Controversies’—concrete disputes with consequences for the parties involved.”[7] The Court went on to state, “To ensure the ‘steady, upright and impartial administration of the laws,’ the Framers structured the Constitution to allow judges to exercise that judgment independent of influence from the political branches.”[8]  The Court further noted, “The Court also recognized from the outset, though, that exercising independent judgment often included according due respect to Executive Branch interpretations of federal statutes.”[9] This “respect was thought especially warranted when an Executive Branch interpretation was issued roughly contemporaneously with enactment of the statute and remained consistent over time.”[10] According to the Court, “[w]hatever respect an Executive Branch interpretation was due, a judge ‘certainly would not be bound to adopt the construction given by the head of a department.’”[11]

The Court then turned its attention to a thorough review of case law and legislative history in the decades preceding Chevron. The Court asserted that when there was deferential review of an agency’s action, it was limited to “fact-bound determinations[.]”[12] The Court “did not extend similar deference to agency resolutions of questions of law.”[13] Chief Justice Roberts noted that the Court “was far from consistent in reviewing deferentially even such factbound statutory determinations.”[14] In 1946, Congress enacted the Administrative Procedure Act (“APA”), which “codifies for agency cases the unremarkable, yet elemental proposition reflected by judicial practices dating back to Marbury [v. Madison, 5 U.S. 137 (1803)]: that courts decide legal questions by applying their own judgment.” According to the Court, “Chevron, decided in 1984 by a bare quorum of six Justices, triggered a marked departure from the traditional approach.”[15]

According to Chief Justice Roberts, “Chevron cannot be reconciled with the APA, as the Government and the dissent contend, by presuming that statutory ambiguities are implicit delegations to agencies.”[16] The Court rejected the arguments that agencies should be able to resolve ambiguities because they “have subject matter expertise regarding the statutes they administer; because deferring to agencies purportedly promotes the uniform construction of federal law; and because resolving statutory ambiguities can involve policymaking best left to political actors, rather than courts.”[17] Instead, Chief Justice Roberts asserted that “Congress expects courts to handle technical statutory questions.”[18] Courts routinely rely upon the parties and amici (a party not involved in a matter that submits a brief to the court with its permission) to help inform their decisions.[19] The Court went on to state that “delegating ultimate interpretive authority to agencies is simply not necessary to ensure that the resolution of statutory ambiguities is well informed by subject matter expertise. The better presumption is therefore that Congress expects courts to do their ordinary job of interpreting statutes, with due respect for the views of the Executive Branch.”[20] The Court further determined that stare decisis, which governs judicial adherence to precedent, did not bind the Court to continue to follow Chevron.[21] Chief Justice Roberts noted, “Its [i.e., Chevron] flaws were nonetheless apparent from the start, prompting this Court to revise its foundations and continually limit its application.”[22] The Court went on to state, after reviewing the decreasing reliance on Chevron over the past few decades, that “[a]t this point, all that remains of Chevron is a decaying husk with bold pretensions.”[23]

The Court thus overturned Chevron and determined, “Courts must exercise their independent judgements in deciding whether an agency has acted within its statutory authority, as the APA requires. Careful attention to the judgment of the Executive Branch may help inform the inquiry.”[24] The Court concluded by stating, “And when a particular statute delegates authority to an agency consistent with constitutional limits, courts must respect the delegation, while ensuring that the agency acts within it. But courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.”[25]

Although Loper Bright did not involve employment law, its ramifications will be felt across all federal agencies.  Regulations and rules promulgated by the EEOC, the DOL, and other employment-related agencies will come under a new form of scrutiny when challenged. No longer will the agencies be granted deference under Chevron. Instead, courts must conduct a thorough and independent analysis to determine if an agency’s action is legal. Employees and employers will want to monitor the developments as agency regulations and rules face challenges in the future.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The opinion is available at https://www.supremecourt.gov/opinions/23pdf/22-451_7m58.pdf (last visited July 2, 2024).

[2] Loper Bright, at *1.

[3] Id., at *1-2.

[4] Id., at *2 (quoting Chevron).

[5] Id.

[6] Id. (quoting Chevron).

[7] Id., at *7.

[8] Id. (citations omitted).

[9] Id., at *8.

[10] Id. (citations omitted)

[11] Id., at *9 (citation omitted).

[12] Id., at *11.

[13] Id., at *9-10 (emphasis in original).

[14] Id., at *12.

[15] Id., at *18. The decision was 6-0, with Justices Marshall, Rehnquist, and O’Connor taking no part in the consideration or decision of the case.  Justices Marshall and Rehnquist were ill, and Justice O’Connor recused herself due to having a financial interest in one of the parties.  Thomas W. Merrill, The Story of Chevron: The Making of an Accidental Landmark, 66 ADMIN. L. REV. 253, 270-73 (2014), available at https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1461&context=faculty_scholarship (last visited July 2, 2024).

[16] Id., at *21.

[17] Id., at *24.

[18] Id.

[19] Id., at *24-25.

[20] Id., at *25.

[21] Id., at *29.

[22] Id., at *30.

[23] Id., at *33.

[24] Id., at *35.

[25] Id.

Photo by Kyle Glenn on Unsplash

On April 17, 2024, the United States Supreme Court (“the Court”) released its opinion in Muldrow v. City of St. Louis, Missouri, No. 22-193 (Apr. 17, 2024).[1]  In Muldrow, the Court clarified the standard to be used “in addressing Title VII suits arising from job transfers.”[2] This opinion provides important guidance on an issue we often encounter.

As the Court noted, “Sergeant Jatonya Clayborn Muldrow maintains that her employer, the St. Louis Police Department, transferred her from one job to another because she is a woman.”[3]  Sergeant Muldrow brought suit under Title VII alleging she was discriminated against based on her sex.[4]  The lower courts rejected her claim “on the ground that the transfer did not cause Muldrow a ‘significant’ employment disadvantage.”[5]  Other courts previously utilized a similar standard in such Title VII job transfer cases.[6]  The Supreme Court, in a unanimous opinion, held that “[a]lthough an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test.  Title VII’s text nowhere establishes that high bar.”[7]

Sergeant Muldrow served as a plainclothes officer in the Intelligence Division from 2008 through 2017.[8]  Against Muldrow’s wishes, she was transferred out of the Intelligence Division.[9]  The new commander wanted to replace Muldrow, whom he sometimes called “‘Mrs.’” instead of the customary “‘Sergeant,’” with a male officer.[10]  Muldrow was reassigned to a uniformed job in another division.[11] Muldrow’s responsibilities, perks, and schedule changed in the new role.[12]  Muldrow also lost her status as an FBI task force officer and the vehicle that came with that title.[13]  Muldrow alleged that the City changed her position because of her sex.[14]  The District Court granted summary judgment in favor of the City, and the Court of Appeals for the Eighth Circuit affirmed.[15]  The Court agreed to review the matter “to resolve a Circuit split over whether an employee challenging a transfer under Title VII must meet a heightened threshold of harm—be it dubbed significant, serious, or something similar.”[16]

In reversing the lower courts, the Court began with the statutory language of Title VII.[17]  The Court noted that the pertinent provision of Title VII “prohibits ‘discriminat[ing] against’ an individual ‘with respect to’ the ‘terms [or] conditions’ of employment because of that individual’s sex.”[18]  Title VII “requires Muldrow to show that the transfer brought about some ‘disadvantageous’ change in an employment term or condition.”[19]  In reviewing the statutory language, the Court determined that “[t]o make out a Title VII discrimination claim, a transferee must show some harm respecting an identifiable term or condition of employment.”[20]  The Court held that Title VII does not require an individual to show a “significant” harm or a similar adjective.[21]  The Court rejected the City’s claims regarding the text of Title VII, precedent, and public policy.[22]  Regarding the latter argument, the Court noted, “Had Congress wanted to limit liability for job transfers to those causing a significant disadvantage, it could have done so.”[23]

The Court concluded by reiterating that “Muldrow need show only some injury respecting her employment terms or conditions.  The transfer must have left her worse off, but need not have left her significantly so.”[24]  The Court thus reversed the decision of the Eighth Circuit and remanded the case for further proceedings.[25]  Already, the Eleventh Circuit (as noted in previous posts, Florida is in the Eleventh Circuit) has acknowledged the impact of Muldrow in a recent unpublished opinion.[26]

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The full opinion is available at https://www.supremecourt.gov/opinions/23pdf/22-193_q86b.pdf (last visited June 3, 2024).

[2] Muldrow, at *1.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id. (emphasis added).  The Court’s opinion was authored by Justice Kagan.  Justices Thomas, Alito, and Kavanaugh filed separate opinions concurring in the judgment of the Court.

[8] Id.

[9] Id., at *2.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id., at *3.

[15] Id., at *3-4.

[16] Id., at *4.

[17] Id., at *5.

[18] Id.

[19] Id. (citation omitted).

[20] Id., at *6.

[21] Id.

[22] Id., at *8.

[23] Id., at *10.

[24] Id.

[25] Id., at *11.

[26] Regina Bennett v. Butler Co. Bd. of Ed., et al., Case No. 23-10186 (11th Cir. May 24, 2024), available at https://media.ca11.uscourts.gov/opinions/unpub/files/202310186.pdf (last visited June 3, 2024).

Photo by Fine Photographics on Unsplash

The Headline

On April 23, 2024, the Federal Trade Commission (FTC) announced that it had finalized a new rule that, once implemented, will prohibit employers from enforcing noncompete clauses.

When does the new rule become effective?

The new rule will become effective one hundred twenty (120) days after the publication date of the new rule (which has not yet occurred).

What is the definition of “noncompete clauses” under the new rule?

A non-compete clause means any term or condition of employment that prohibits or prevents a worker from, or penalizes a worker for:

1. seeking or accepting work with a different employer in the United States after separating from the current employer; or
2. operating a business in the United States after separating from the current employer.

What, specifically, does this new rule prohibit?

Under the new rule, employers will be prohibited from:

1. enforcing existing noncompete clauses, except with respect to senior executives (defined as individuals earning at least $151,164 annually and are in a “policy-making” position); and
2. entering into new noncompete agreements with employees.

What does the rule NOT prohibit?

Employers are not prohibited under the new rule from:

1. entering into and enforcing non-solicitation agreements and non-disclosure agreements, provided that they do not meet the definition of “noncompete clause.”
2. entering into and enforcing noncompete clauses in connection with the sale of a business.
3. continuing to litigate noncompete enforcement actions that accrued before the effective date of the new rule.

What obligations does the new rule create for employers?

Employers will be required to inform employees who have signed noncompete clauses that those clauses are no longer in effect and will not be enforced.

What else should employers be doing?

As the effective date approaches, employers should review existing agreements or form agreements they regularly utilize, and eliminate noncompete clauses.  Once again, the new rule does not prohibit clauses that prevent solicitation of clients or customers, nor does it probit non-disclosure provisions that protect confidential information or trade secrets.  Employers may continue utilizing these narrower restrictive covenants.

Can the FTC really do this?

That is a good question that many are asking.  Undoubtedly, legal challenges to the FTC’s authority to implement this rule have already been initiated by several business groups, and those challenges will likely reach the United States Supreme Court.  We will monitor these challenges and provide updates as they become available.

Photo by Romain Dancre on Unsplash

Every now and then, we will have a company (or an employee) contact us and tell us that an employee has been involved in a car accident while performing duties for the company. The question we of course are asked is, “Are we on the hook for this?” The answer is possibly, under the theory of vicarious liability. Recently, Florida’s Fifth District Court of Appeal (“Fifth DCA”) addressed this issue and provided guidance on when an employer can be held liable in such circumstances.

In Kulzer v. Way & Greenleaf Trust, No. 5D23-0750 (Fla. 5th DCA Feb. 2, 2024), an employee of Greenleaf Trust got into a car accident while “running errands she said were related to her employment duties of inspecting and readying a condominium unit and its contents for sale.”[1] According to the record, “[a]fter completing two errands, Ms. Way grabbed a hamburger which she ate in the parking lot of McDonald’s. She was then heading back to the condominium for a business meeting when she negligently collided her car into the car driven by Appellant, Carol Ann Kulzer[.]”[2] Ms. Kulzer filed suit, claiming injuries and damages in her suit against Ms. Way and Greenleaf.[3] The trial court granted summary judgment in favor of Greenleaf, absolving it of any liability for Ms. Way’s negligence.[4] The trial court held that Ms. Way “was not within the course and scope of her employment at the time of the wreck based upon application of the coming and going rule.”[5] Ms. Kulzer appealed.[6]

The Fifth DCA began its analysis with an overview of the pertinent facts. Ms. Way ordinarily worked for Greenleaf in Kalamazoo, Michigan, but she was temporarily assigned to Ormond Beach, Florida.[7] On the day in question, “she traveled to the condominium in the morning, left the premises around noon, and was scheduled to attend a 2:00 p.m. work-related meeting at the condo.”[8] Around noon, Ms. Way traveled from the condo to a store where she purchased packing supplies; there was no dispute that this errand was within the course and scope of her employment.[9] Next, Ms. Way drove to an ABC Fine Wine & Spirits to purchase wine and hors d’oeuvres.[10] She next stopped at McDonald’s for lunch.[11] As she was driving back to the condo, Ms. Way crashed into Ms. Kulzer’s vehicle.[12] Ms. Way admitted fault for the accident, but Greenleaf denied that it was vicariously liable for her conduct, “claiming that Ms. Way was not within the course and scope of her employment at the time of the wreck.”[13]

As the Fifth DCA asserted, “[a]n employer is vicariously liable for the tortious conduct of its employee only if committed within the scope of employment.”[14] The court noted that the Third District Court set forth a widely accepted test of whether an employee, while driving, was within the scope of employment in the case Sussman v. Florida East Coast Properties, Inc., 557 So. 2d 74 (Fla. 3d DCA 1990).[15] There, the Third District Court stated that employer liability arises:

only if (1) the conduct is of the kind the employee is hired to perform, (2) the conduct occurs substantially within the time and space limits authorized or required by the work to be performed, and (3) the conduct is activated at least in part by a purpose to serve the master.[16]

Regarding the “coming and going” rule, the court noted that it applies in “situations where the employee’s wreck occurred as the employee was simply going to the workplace at the beginning of the workday or as she was coming home at the end of the normal workday.”[17] The rule has been codified as part of the workers’ compensation statute (section 440.092) and has been judicially adopted in tort cases.[18] The court noted that here, “the traditional coming and going rule was inapplicable.”[19] The court further noted that “[w]hen an employee is on a single-purpose, personal lunch break, away from the workplace, and not engaged in the employer’s business in any manner, the employee is not considered to be within the course and scope of employment for workers’ compensation purposes.”[20] In a 1935 Florida Supreme Court opinion, the court determined that the jury “should decide whether the employee’s lunch detour was merely a slight departure from work or an abandonment of the employer’s business, with vicarious liability attaching only for the former circumstances.”[21] Vicarious liability can be found if an accident occurs after an employee returns to her duties.[22]

In determining that the trial court erred, the Fifth DCA reviewed the factors set forth in Sussman.[23] As to the first factor, “Ms. Way running the errands was self-described as work-related, and at least one of the errands was indisputably conduct of the kind the employee was hired to perform.”[24] As to the second factor, “there was no undisputed evidence that the mid-day journey occurred substantially outside the time and space limits authorized or required by the work to be performed.”[25] Finally, as to the third element, the Fifth DCA held that “the evidence was undisputed that Ms. Way’s mid-day journey was motivated at least in part by a purpose to serve her employer, Greenleaf.”[26] Thus, the court reversed the trial court’s granting of summary judgment in favor of Greenleaf and remanded for further proceedings.[27]

It is imperative that employers be aware that there are circumstances where a company will be held liable for the conduct of its employees.  As Kulzer demonstrates, the analysis can be complicated, and it is vital to seek guidance from experienced counsel. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] Kulzer, at *1-2. The opinion can be found at the following link: https://5dca.flcourts.gov/content/download/1700274/opinion/Opinion_23-0750.pdf (last visited Mar. 1, 2024).

[2] Id., at *2. An appellant is the party who filed an appeal.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id., at *3.

[13] Id.

[14] Id. (citation omitted).

[15] Id.

[16] Id. (quoting Sussman, 557 So. 2d at 76).

[17] Id.

[18] Id. at *3-4.

[19] Id. at *4.

[20] Id.

[21] Id. (citing W. Union Tel. Co. v. Michel, 163 So. 86, 87-88 (Fla. 1935)).

[22] Id.

[23] Id. at *5.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

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On occasion, we will have a client ask whether their company’s CEO will have to testify if the matter proceeds to litigation. Recently, the Fourth District Court of Appeal provided guidance on what is known as the “apex doctrine,” which governs depositions of individuals at the highest levels of corporations. This blog post will discuss the court’s opinion in Tesla, Inc. v. Monserratt, No. 4D2023-2075 (Fla. 4^th DCA Jan. 3, 2024), and discuss its implications for cases moving forward.[1]

The facts of Monserrat are tragic. The case involved a 2018 accident where an 18-year-old crashed his Tesla Model S while driving 116 miles per hour.[2] The driver and his passenger died in the crash.[3] Subsequently, the father of the passenger sued Tesla for negligence, alleging that “a Tesla service technician deactivated the 85-mph top speed limiting software previously enabled on the vehicle” at the driver’s behest.[4] Following the crash and ensuing media coverage, Elon Musk, CEO of Tesla, called the driver’s father to extend his condolences.[5] According to the father, during the course of the conversation Mr. Musk “‘said something to the effect of, perhaps we should not have removed the limiter. We will have to review and revise our policies.’”[6] Mr. Musk and the father also exchanged e-mails where “Mr. Musk conveyed information learned in Tesla’s initial investigation of the crash.”[7]

Subsequently, the plaintiff sought to depose Mr. Musk regarding the conversation with the driver’s father.[8] Tesla asserted that Mr. Musk was entitled to protection under Florida Rule of Civil Procedure 1.280(c) and (h).[9] In a declaration filed by Tesla, Mr. Musk described his executive role in the company and other companies and “stated that it would place a substantial burden and hardship on him if he were to be deposed.”[10] Mr. Musk also asserted, under penalty of perjury, that “he had no independent recollection of the phone call beyond what was in the e-mail communications and his extension of condolences.”[11] Tesla did produce the e-mails between Mr. Musk and the father of the driver.[12] The presiding judge granted Tesla’s motion for protective order (blocking the deposition of Mr. Musk), “finding that the call was sympathy call and that Mr. Musk did not possess unique, personal knowledge.”[13]

After the case was transferred to another judge as part of a routine administrative transfer process, Plaintiff again sought to depose Mr. Musk.[14] In lieu of the deposition, Tesla agreed to have Mr. Musk respond to requests for admissions and interrogatories about the phone call.[15] Mr. Musk reiterated that he did not recall discussing the matters claimed by the father, besides extending his condolences.[16] After receiving the answers, Plaintiff again sought to compel the deposition of Mr. Musk.[17] The new trial judge granted the request, reasoning “‘apparently there allegedly is a dispute as to what was said by Mr. Musk via-à-vis (sic) his conversation with [the father].’”[18] Tesla timely sought review of that determination by filing a petition for writ of certiorari.[19]

The Fourth District Court addressed “the merits of the petition—whether the trial court departed from the essential requirements of the law when it granted Plaintiff’s motion to compel the deposition of Mr. Musk.”[20] In reaching its decision that the trial court did err, the court began by setting forth the text of rule 1.280(h), Florida Rules of Civil Procedure, as adopted in 2021.[21] That rule provides:

Apex Doctrine. A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking the deposition demonstrates that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information.

The court may vacate or modify the order if, after additional discovery, the party seeking the deposition can meet its burden of persuasion under this rule. The burden to persuade the court that the officer is high-level for purposes of this rule lies with the person or party opposing the deposition.[22]

The Fourth District Court noted that in deciding whether the trial court erred, “the first inquiry is whether Tesla met its two-fold burden of (1) demonstrating that Mr. Musk met the high-level officer requirement, and (2) producing an affidavit or declaration explaining Mr. Musk’s lack of unique, personal knowledge of the issues being litigated.”[23]

The court held that the Plaintiff did not demonstrate that the existing discovery was inadequate or that Mr. Musk possessed unique, personal knowledge.[24] The court noted that Mr. Musk twice denied making any statements during the call regarding the limiter.[25] The court determined that “[u]nder these circumstances, requiring Mr. Musk to sit for a deposition would serve no purpose other than to harass and burden Tesla and disrupt Mr. Musk’s ability to meet his obligations to consumers, stockholders, Tesla’s employees, and other activities integral to his position as CEO.”[26] The court therefore granted Tesla’s petition and quashed (i.e., voided) the court’s order compelling Mr. Musk’s deposition.[27]

As the Monserratt opinion demonstrates, Florida courts are now reluctant to subject high-level government or corporate officers to depositions, absent certain circumstances. As two authors have  noted, Florida was the first state to codify the apex doctrine “as a stand-alone rule of civil procedure.”[28] The doctrine is designed to protect high-ranking government officials and corporate officers from harassment and discovery abuses.[29] In determining whether an individual is a high-level officer, courts will look to well-established precedent.[30] It is important to note that the party seeking the deposition of the officer will have the opportunity to demonstrate “that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of the discoverable information.”[31] Reviewing the text of rule 1.280(h) and the pertinent case law is vital in those matters where a party contemplates deposing a high-level government or corporate officer.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] The opinion is available on the Fourth District Court of Appeal’s website at the following link: https://4dca.flcourts.gov/content/download/1702694/opinion/Opinion_2023-2075.pdf (last visited Feb. 2, 2024).

[2] Monserratt, at *1.

[3] Id.

[4] Id.

[5] Id., at *2.

[6] Id.

[7] Id.

[8] Id.

[9] Id. Florida Rule of Civil Procedure 1.280(c) involves protective orders in discovery disputes, while 1.280(h) sets forth the apex doctrine. The rules can be found at the following link: https://www-media.floridabar.org/uploads/2023/12/Civil-Procedure-Rules-01-01-24.pdf (last visited Feb. 2, 2024).

[10] Monserratt, at *2.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id., at *3.

[21] Id.

[22] Id.

[23] Id., at *4.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Mark A. Behrens & Christopher E. Appel, Florida Supreme Court Leads on Apex Doctrine, American Bar Association (Mar. 9, 2022), available at https://www.americanbar.org/groups/tort_trial_insurance_practice/publications/the_brief/2021-22/winter/florida-supreme-court-leads-apex-doctrine/ (last visited Feb. 2, 2024). According to Behren and Appel, “Florida’s approach provides a clear expression of the doctrine that should serve as a model for other states.” Id.

[29] See id.

[30] Id.

[31] Fla. R. Civ. P. 1.280(h).

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In June 2023, the United States Supreme Court released its opinion in U.S. ex rel. Polansky v. Executive Health Resources, Inc., 143 S. Ct. 1720 (2023) (“Polansky”). Justice Kagan authored the opinion of the 8-1 decision (Justice Thomas was the sole dissenter). The C­­ourt addressed “the Government’s ability to dismiss an FCA (False Claims Act) suit over a relator’s objection.”¹ As we have discussed previously, the FCA “imposes civil liability on any person who presents false of fraudulent claims for payment to the Federal Government. The statute is unusual in authorizing private parties—known as relators—to sue on the Government’s behalf.”² This blog will discuss the Court’s opinion in Polansky and whether the Government can dismiss a suit over a relator’s objection if it does not initially intervene in the matter.

The Court begins Polansky by providing a historical overview of the FCA.³ The Court noted that “Congress gave the Government continuing rights in the action—not least the right to the lion’s share of the recovery. Most relevant here, the Government can intervene after the seal period ends, so long as it shows good cause to do so.”⁴ The Court summarized the main issue as “whether the Government, if it has declined to intervene during the seal period, retains yet another right: the right to dismiss a qui tam action over the relator’s objection.”⁵ The pertinent statutory provision, 31 United States Code section 3730(c)(2)(A) (“Subparagraph 2(A)”) does not expressly state whether the authority for the Government to dismiss “survives the Government’s decisions to let the seal period lapse without intervening.”⁶ Instead, it provides that “‘[t]he Government may dismiss the action notwithstanding the objections of the [relator],’ so long as the relator has received notice of the motion and an opportunity for a hearing.”⁷ The Court thus sought to answer whether the Government had the right to dismiss when it did not initially intervene.

The Court did not delve too deeply into the facts of the case. The Relator, Jesse Polansky, is a doctor who worked for a “company that helped hospitals bill the United States for Medicare-covered services.”⁸ Polansky alleged that his former employer allowed its clients to charge “inpatient rates for what should have been outpatient services.”⁹ The Government reviewed the matter and declined to intervene; the case “then spent years in discovery, with [the company] demanding both documents and deposition testimony from the Government.”¹⁰ Ultimately, the Government determined that the “varied burdens of the suit outweighed its potential value” and sought to dismiss the action over the relator’s objection.¹¹ The District Court granted the Government’s request, and the court of appeals affirmed.¹² The court of appeals held that the Government does have the power to dismiss an action under Subparagraph (2)(A) as long as it intervened at some time; here, the court held the Government’s “motion to dismiss was reasonably construed to include a motion to intervene[.]”¹³ The court further held that the proper standard a district court should utilize comes from Federal Rule of Civil Procedure 41(a) (governing voluntary dismissals in civil matters), and it found that the district court’s decision, “which was based on a ‘thorough examination’ of the interests that Rule 41 makes relevant, was not an abuse of discretion.”¹⁴ The Supreme Court granted review because there was a split among the circuit courts.¹⁵

The Court affirmed the court of appeals and agreed with the lower court “across the board.”¹⁶ In reaching its decision, the Court carefully reviewed the pertinent statutory provisions. The Court determined that “Congress decided not to make seal-period intervention an on-off switch” and that “Congress enabled the Government, in the protection of its own interests, to reassess qui tam actions and change its mind.”¹⁷ Regarding the standard courts should utilize to assess the Government’s motion to dismiss, the Court held that courts should “assess a (2)(A) motion to dismiss using Rule 41’s standards.”¹⁸ The Court noted that the FCA references the Federal Rules of Civil Procedure, providing support for the position that the Rules apply.¹⁹ In the FCA context, courts must provide notice and an opportunity for a hearing before a (2)(A) dismissal can take place.²⁰ Furthermore, courts must consider the relator’s interests as well as the Government’s.²¹ The Court did hold, however, that “the Government’s views are entitled to substantial deference” in the FCA context.²² Here, the Court held the case was “not a close call” and that the district court did not abuse its discretion in granting the Government’s motion to dismiss.²³

The Polansky decision provides valuable guidance for Relators and counsel and should be kept in mind when considering pursuing a qui tam action. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

1 Polansky, 599 U.S. at 1726

2 Id. at 1726; see Don’t Cross Uncle Sam: A Brief Overview of the False Claims Act (May 16, 2022), available at https://www.schwartzlawfirm.net/dont-cross-uncle-sam-a-brief-overview-of-the-false-claims-act/, and Case Law Update: The United States Supreme Court Provides Guidance on the False Claims Act, available at https://www.schwartzlawfirm.net/case-law-update-the-united-states-supreme-court-provides-guidance-on-the-false-claims-act/ (July 31, 2024) (last visited Jan. 11, 2024).

3 Id. at 1727.

4 Id. at 1728 (citation omitted).

5 Id.

6 Id.

7 Id. (quoting Subparagraph 2(A)).

8 Id. at 1729.

9 Id.

10 Id.

11 Id.

12 Id.

13 Id.

14 Id. at 1730.

15 Id.

16 Id.

17 Id. at 1733.

18 Id.

19 Id.

20 Id. at 1734.

21 Id.

22 Id.

23 Id. at 1734-35.

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On December 12, 2023, the Eleventh Circuit Court of Appeals (as referenced in a previous blog, Florida is in the Eleventh Circuit) issued its opinion in Tynes v. Florida Department of Juvenile Justice, Case No. 21-13245 (11th Cir. Dec. 12, 2023).  In the opinion, the court reiterated that the McDonnell Douglas framework (discussed more below) is not “a stand-in for the ultimate question of liability in Title VII discrimination cases.”[1]  The court held, “Properly understood, McDonnell Douglas is an evidentiary framework that shifts the burden of production between the parties to figure out if the true reason for an adverse employment action was the employee’s race. It is not a set of elements that the employee must prove[.]”[2] This blog post will discuss the Tynes opinion and its importance in discrimination cases.

The court provided only a brief recitation of the facts in Tynes.  Tynes was an employee of the Department of Juvenile Justice (“Department”) for sixteen years.[3] “At the time of her termination, she was the superintendent of the Broward Regional Juvenile Detention Center.”[4]  One day, while Tynes was on medical leave, “an unusually high number of incidents required an officer to call for back up.”[5] In response, the assistant secretary of detention services assembled “a technical assistance team to review staffing and personnel issues.”[6] Before the final report was issued, the Department terminated Tynes.[7] Tynes did not have any disciplinary history.[8] The Department alleged that Tynes was terminated for “poor performance, negligence, inefficiency or inability to perform assigned duties, violation of law or agency rules, conduct unbecoming of a public employee, and misconduct.”[9]

Tynes subsequently filed suit under Title VII for race and sex discrimination.[10] Her “complaint also stated that it brought ‘other causes of actions [sic] which can be inferred from the facts herein.”[11] Tynes alleged that similarly situated white and male employees were treated differently and that the reasons for termination were pretextual (i.e., dubious).[12] Tynes pointed to two white superintendents whose facilities had “incidents that reflected a lack of control or failure to abide by the Department’s policies,” but they were not terminated.[13] Regarding pretext, Tynes presented evidence that the assistant secretary was biased against her.[14] Tynes’s direct supervisor testified that the written report from the assistant director contained inaccuracies and that the efforts of the technical assistance team amounted to a ‘search-and-kill mission’ against Tynes.”[15] The assistant director faltered during her testimony at trial.[16] The jury returned a verdict in favor of Tynes and awarded her $424,600 in compensatory damages and $500,000 in damages for emotional pain and anguish.[17] The court ordered the Department to reinstate Tynes under a new supervisor.[18]

Following the verdict, the Department renewed its motion for judgment as a matter of law, or alternatively, sought a new trial.[19] The Department argued that for the Title VII claims, Tynes did not “present comparators who were ‘similarly situated in all material respects’ and therefore failed to satisfy her burden to establish a prima facie case under McDonnell Douglas.” The Department also argued that Tynes did not properly plead her section 1981 claim (section 1981 does not have a cap on damages).[20] The district court denied the Department’s motion, holding that Tynes presented sufficient circumstantial evidence to establish the discrimination claims and that even if Tynes did not properly plead the section 1981 claim, the Federal Rules of Civil Procedure (rule 15(b)(1), to be exact) gives the court the discretion to allow an amendment to the complaint during the trial.[21] The Department appealed.

The Eleventh Circuit affirmed the district court’s decision.[22] In reviewing the district court’s order, the court provided an overview of Title VII case law.[23] As the court noted, “the Supreme Court in McDonnell Douglas set out a burden shifting framework designed to draw out the necessary evidence in employment discrimination cases.”[24] The court set forth a detailed breakdown of the McDonnell Douglas framework that is certainly worth reviewing.[25] The court summed up the framework as “an evidentiary tool that functions as a ‘procedural device, designed only to establish an order of proof and production.’”[26] The court further noted that “[w]hat McDonnell Douglas is not is an independent standard of liability under either Title VII or § 1981.”[27] The court continued:  Nor is its first step, the prima facie case—‘establishing the elements of the McDonnell Douglas framework is not, and never was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion.’”[28] The court asserted that the Supreme Court’s terminology led to the confusion, as “prima facie case” in McDonnell Douglas “has a different meaning—it marks ‘the establishment of a legally mandatory, rebuttable presumption.’”[29]

The court went on to note that “McDonnell Douglas is ‘only one method by which the plaintiff can prove discrimination by circumstantial evidence.’”[30] The court explained that “[a] plaintiff who cannot satisfy the framework may still be able to prove her case with what we have sometimes call a ‘convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.’”[31] As the court stated, “[a] ‘convincing mosaic’ of circumstantial evidence is simply enough evidence for a reasonable factfinder to infer intentional discrimination in an employment action—the ultimate inquiry in a discrimination lawsuit.’”[32] Under the “convincing mosaic” standard, a plaintiff may use “any relevant and admissible evidence” to prove her case.[33] The court emphasized that the McDonnell Douglas framework is used like the convincing mosaic standard to “decide the ultimate question of intentional discrimination.”[34] As the court stressed, “[u]nder McDonnell Douglas, the failure to establish a prima facie case is fatal only where it reflects a failure to put forward enough evidence for a jury to find for the plaintiff on the ultimate question of discrimination.”[35] Following trial, the court’s only questions was “whether there is a sufficient evidentiary basis for the jury to find that the defendant intentionally discriminated against the plaintiff.”[36]

Turning to the facts at hand, the court determined that Tynes did present sufficient evidence to support the jury’s verdict that it intentionally discriminated against her.[37] The court held that “to the extent that there are material differences between Tynes and her comparators at this stage of the case, it is the jury’s role. . .to determine how much weight the comparator evidence should be given.”[38] The court thus affirmed the district court’s order denying the Department’s renewed motion for judgment as a matter of law.[39] The court concluded by asserting that “[a]fter a full trial on the merits, a defendant cannot successfully challenge the jury’s verdict by arguing only that the plaintiff’s comparators were inadequate or that the prima facie case was otherwise insufficient.”[40]

The Tynes opinion provides much-needed guidance for practitioners and litigants alike. Although there was some confusion surrounding the use of McDonnell Douglas, the Eleventh Circuit has done an excellent job of clarifying the framework. If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] Tynes v. Fla. Dep’t of Juvenile Justice, Case No. 21-13245 (11th Cir. Dec. 12, 2023), at *2, available at https://media.ca11.uscourts.gov/opinions/pub/files/202113245.pdf (last visited Dec. 14, 2023). The full citation for McDonnell Douglas is McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

[2] Tynes, at *2.

[3] Id., at *3.

[4] Id.

[5] Id.

[6] Id., at *4.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id., at *5.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id., at *6.

[21] Id.

[22] Id., at *3. The Department did not even cite to rule 15(b)(1) on appeal, and the Eleventh Circuit determined that the Department’s challenge of that portion of the district court’s order was forfeited. Id.

[23] Id., at *7-8.

[24] Id.

[25] Id., at *8.

[26] Id., at *9 (quoting St. Mary’s Honor Ctr. V. Hicks, 509 U.S. 502, 521 (1993)).

[27] Id.

[28] Id. (quoting Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)).

[29] Id. (quoting

[30] Id., at *12 (quoting Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 n.3 (11th Cir. 2005)).

[31] Id. (quoting Smith,644 F.3d at 1327-28).

[32] Id., at *12-13 (citation omitted).

[33] Id., at *13 n.2.

[34] Id., at *14.

[35] Id.

[36] Id. (citation omitted).

[37] Id., at *15.

[38] Id.

[39] Id.

[40] Id., at *18.

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As we enter the holiday season, we would like to begin by expressing our sincere gratitude to our clients, current and former, who have allowed us to serve the community since 1993.  We are fortunate to be able to provide high-quality legal representation to such wonderful individuals.  Turning to this blog post, in light of the holidays, this edition will explore the Age Discrimination in Employment Act (“ADEA”) with a holiday twist.

The ADEA was passed by Congress and signed into law by President Lyndon B. Johnson in 1967.  The ADEA prohibits discrimination against people who are 40 or older.¹  The ADEA applies to employers with 20 or more employees.²  As the EEOC has noted, the ADEA “prohibits discrimination in any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.”³  The ADEA also prohibits harassing an employee because of his or her age.⁴  In 2022, the EEOC received 11,500 Charges of Discrimination alleging age discrimination.⁵  The law also protects employees from retaliation for raising complaints of age discrimination.⁶  Age is also a protected category under the Florida Civil Rights Act (“FCRA”), which applies to employers with 15 or more employees.⁷  Courts analyze claims for age discrimination under the FCRA using the same framework as the ADEA.⁸

As a hypothetical, imagine that Yohan (who is 33) and Daniele (who is 63) work for Santa’s Workshop, conveniently located in Christmas, Florida.  Yohan is Daniele’s manager in the facility, which manufactures toys that are distributed all around the world.  Daniele has been with the company for over twenty years, and Yohan was appointed her manager two months ago after the unexpected retirement of her former manager, Buddy.  Under Buddy, Daniele consistently earned high praise and had excellent performance scores.  After a few weeks of taking over the department, Yohan begins criticizing Daniele’s performance, while continually praising her younger colleagues.  Yohan also tells Daniele that she is “slowing down in her old age” and repeatedly asks her when she is going to retire.  Daniele has clear grounds to raise a complaint to Nick, the owner of the workshop, for age discrimination and harassment.  If Nick ignores Daniele’s complaint, or retaliates against her for raising the complaint, he is at risk of Daniele having a cause of action against Santa’s Workshop under the ADEA and the FCRA.

As the example above shows, employers must take complaints of age discrimination seriously, or they risk being placed on the “Naughty list.”  If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

[1] For context, the life expectancy in 1967 was 67 for men and 74.3 for females. Social Security Administration, Period Life Expectancies—Calendar Years 1940-2001, available at https://www.ssa.gov/OACT/TR/TR02/lr5A3-h.html (last visited Nov. 17, 2023).  We often hear surprised comments about 40 being the threshold, but it has not been raised since the Act’s passage.

[2] U.S. Equal Employment Opportunity Commission, Age Discrimination, available at https://www.eeoc.gov/age-discrimination (last visited Nov. 17, 2023).

[3] Id.

[4] Id.

[5] U.S. Equal Employment Opportunity Commission, Age Discrimination in Employment Act (Charges filed with EEOC) (includes concurrent charges with Title VII, ADA, EPA, and GINA) FY 1997 – FY 2022, available at https://www.eeoc.gov/data/age-discrimination-employment-act-charges-filed-eeoc-includes-concurrent-charges-title-vii-ada (last visited Nov. 17, 2023).

[6] See U.S. Dep’t of Labor, What do I need to know about . . . Age Discrimination, available at https://www.dol.gov/agencies/oasam/centers-offices/civil-rights-center/internal/policies/age-discrimination (last visited Nov. 17, 2023).

[7] §§ 760.02, 760.10, Fla. Stat. (2023).

[8] Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1266 (11th Cir. 2014).

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In 2021, the Florida Supreme Court amended Rule 1.510, Florida Rules of Civil Procedure, which governs summary judgment. In short, summary judgment is a procedural tool that permits courts to allow only cases with genuine issues of material facts to proceed to trial.² In Whitlow v. Tallahassee Memorial Healthcare, Inc., the First District Court of Appeal (“DCA”) addressed the revision to rule 1.510 and its impact on cases in Florida.³ Understanding this change is critical for practitioners and those looking to proceed through Florida’s state court system.

For purposes of this blog, the facts of Whitlow will only be briefly summarized, as it involved a slip-and-fall injury at Tallahassee Memorial Hospital.⁴ Ms. Whitlow alleged that she slipped on water left by employees pushing a stretcher out of an elevator immediately before she entered.⁵ The DCA noted that pursuant to statute, Ms. Whitlow had to prove that the hospital “had ‘knowledge of the dangerous condition and should have taken action to remedy it.’”⁶ The DCA agreed with the lower court that Ms. Whitlow “failed to present substantive evidence from which a jury reasonably could infer that the [hospital] employees knew of the dripping water . . . or that the employees could have done anything to correct the unsafe condition in the short time” between when the employees got off the elevator with the stretcher and she got on.⁷ The court thus affirmed the lower court’s granting of summary judgment in favor of the hospital, meaning that Ms. Whitlow did not “come forward with evidence that could lead a rational jury to find in her favor.”⁸ 

For purposes of this blog, the key aspects of the Whitlow opinion are the DCA’s discussion of the history of summary judgment and the relatively new standard being used by Florida’s state courts. The DCA begins its analysis with an excellent historical overview of the right to trial by jury and its importance under federal and Florida law, with roots dating back to ancient English common law.⁹ As the DCA notes in Whitlow, the right to trial by jury is a matter of substance, not procedure, leaving “open the possibility that the legislative or judicial power could develop mechanisms of procedural expediency to weed out cases that lacked a genuine dispute over facts requiring court resolution.”¹⁰ Judges are free to determine if the evidence presented is sufficient to warrant a trial by jury, “provided the judge limit[s] the assessment to the quantum of evidence and not the weight of it.”¹¹ One such method judges use to make such a determination is the directed verdict, which permits judges “to take the case from the jury without running afoul of the constitutional right, provided he concluded ‘as a matter of law that no recovery can be lawfully had upon any view taken of facts that the evidence tends to establish.’”¹² The directed verdict is sought during the course of the trial.¹³

Summary judgment is another tool judges can use in determining if a case should proceed to a jury, although that determination occurs before the trial begins.¹⁴ The United States Supreme Court adopted a summary judgment rule applicable to all civil cases; similarly, the Florida Supreme Court also adopted such a rule.¹⁵ The Florida Supreme Court has urged lower courts to exercise caution in utilizing the summary judgment power.¹⁶ The new Rule 1.510 adopted by the Florida Supreme Court mirrors the summary judgment standard set forth in Rule 56 of the Federal Rules of Civil Procedure.¹⁷ According to the DCA, this change “represents a return to the procedural expediencies that the supreme court had approved over a century earlier as complementing, rather than conflicting with, the right to a trial by jury.”¹⁸ The Florida Supreme Court “essentially requires that the directed verdict standard—which it has approved for application mid-trials since the nineteenth century—now to be applied pre-trial as well.”¹⁹ As the DCA notes, “The function of the trial court at the summary judgment stage is not ‘to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.’”²⁰ The non-moving (i.e., the party who did not file the summary judgment motion) party has the burden “to come forward with evidence showing a ‘dispute about a material fact [that] is “genuine,”’ or, in other words, demonstrate that ‘the evidence is such that a reasonable jury could return a verdict for the’ party opposing the motion.”²¹ If the non-moving party fails to meet that burden, the trial court “may grant summary judgment against the party without running afoul of the constitution’s jury-trial guarantee.”²²

Turning to the case at issue, the DCA held that the trial court correctly determined that “Whitlow failed to come forward with evidence that demonstrated one or more genuine disputes of material fact that required resolution by a jury.”²³ In making its determination, the DCA reviewed the trial court’s decision de novo (Latin for “anew”), meaning the court does not owe the trial court’s decision deference.²⁴

The revised Rule 1.510 will have far-reaching consequences for litigants in Florida. It is critical that practitioners and clients understand this change and consider its application in determining whether to proceed to filing a claim in state court.

If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.

1 Credit to Coach Lee Corso for popularizing the catchphrase.

2 See Whitlow v. Tallahassee Mem’l Healthcare, Inc., No. 1D21-3413 (Fla. 1st DCA Aug. 16, 2023), available at https://1dca.flcourts.gov/content/download/875603/opinion/Opinion2021-3413.pdf (last visited Oct. 2, 2023).

3 See id.

4 Id., at *1.

5 Id.

6 Id., at *1-2 (citing section 768.0755(1), Florida Statutes.

7 Id., at *2.

8 Id. 2

9 Id., at *2. The right to a trial by jury in civil matters is enshrined in the United States and the Florida Constitutions. U.S. Const. amen. VII; Art. I, § 22, Fla. Const. Furthermore, the denial of the right to trial by a jury was one of the grievances raised by the colonists against the Crown in the Declaration of Independence. Whitlow, at *2-3.

10 Id., at *4.

11 Id.

12 Id., at *5 (citation omitted).

13 Id., at *9.

14 Id., at *6.

15 Id., at *7.

16 Id., at *8.

17 Id.

18 Id., at *8-9.

19 Id., at *9.

20 Id. (citation omitted).

21 Id., at *9-10 (citation omitted).

22 Id., at *10.

23 Id., at *10, 15.

24 See id., at *10.

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