Law360, Miami (September 15, 2017, 9:07 PM EDT) — When the Florida Supreme Court ruled Thursday that referral sources can be protected legitimate business interests under the state law governing noncompete agreements, it opened a door for employers to argue for the inclusion of additional interests in restrictive covenants, experts say.
In aunanimous decision, the Supreme Court said that though Florida Statute 542.335, which governs noncompete agreements, does not specifically list referral sources as subject to protection, they can be. The statute, which lists only five kinds of protected business interests, is not meant to be exhaustive, and trial courts are equipped to make case-by-case determinations depending on the facts of specific cases and the industries involved, the court said.
With this decision, employees can no longer swat away a suit to enforce a noncompete agreement by arguing that referral sources are not protected, and companies can argue that not just referral sources may be protected, but other types of business interests not listed in the law can be part of a noncompete contract.
Michael Landen, an employment litigator at Kluger Kaplan Silverman Katzen & Levine PL, said the two cases involved had a “clearer fact pattern than most” and wasn’t sure whether the decision would extend beyond referral sources in the noncompete litigation space, though for those who defend employers in these cases, it is a helpful tool to use.
“The language that the court uses in the opinion in the analysis can always be the kind of thing that can be helpful in another case that an employer might rely on,” Landen said.
Elder-law attorneys were quick to weigh in Thursday on the legal implications of eight deaths at a Hollywood nursing home following a loss of air conditioning during Hurricane Irma.
Any need for regulatory reform will be determined by the facts as they emerge, said Fort Lauderdale attorney Jonathan Gdanski of Schlesinger Law Offices. Key questions, he said, would include the following: What steps, if any, were taken to transport nursing home residents? Was the facility monitoring the deterioration of patients over time? And what plans were in place to help those who needed assistance the most?
“Some of the most basic facts still need to be determined, yet what is already known seems to present a clear picture of absolute, complete, reprehensible conduct, which resulted in death,” said Gdanski, a plaintiffs lawyer focused on catastrophic personal injury and medical malpractice.
Meanwhile, he said, “the large majority” of caregivers across the state appear to have been adequately cautious in the face of the storm.
More than 150 residents of the Rehabilitation Center at Hollywood Hills were evacuated to hospitals Wednesday. Three people were already dead when first responders arrived, and five more died that afternoon. Gov. Rick Scott called the deaths “unfathomable,” and state and local authorities have started a criminal investigation.
The nursing home’s administrator, Jorge Carballo, said in a statement that the facility was “cooperating fully with relevant authorities to investigate the circumstances that led to this unfortunate and tragic outcome.”
Broward County reported the nursing home told officials Tuesday the air conditioning was out but did not request help, according to the Associated Press. The facility complied with a state law requiring an evacuation plan and hurricane drills.
“I have been litigating nursing abuse cases throughout Florida for years and this is the worst case I have seen,” said Fort Lauderdale attorney Marcus Susen of Koch Parafinczuk Wolf Susen.
The Hollywood nursing home seems to be an outlier rather than an example of a systemic problem, said Miami attorney Bruce Katzen of Kluger, Kaplan, Silverman, Katzen & Levine.
“I believe our existing regulatory scheme is sufficient to administer nursing home and rehabilitation facilities,” said Katzen, whose practice includes elder abuse cases. “However, the existing regulatory system needs to be enforced. This facility apparently had a long list of violations.”
On the heels of the recent Chambers USA recognition, Kluger Kaplan and many of its attorneys have been once again recognized among the best in their field by the international publication, Best Lawyers®. The attorneys were selected by votes from a peer group, based on an exhaustive evaluation. 83,000 industry leading attorneys are eligible to vote (from around the world) every year.
The specific attorneys recognized by Best Lawyers are:
Deborah S. Chames
Abbey L. Kaplan
Entertainment Law – Motion Pictures and Television
Litigation – Mergers and Acquisitions
Litigation – Real Estate
Bruce A. Katzen
Securities / Capital Markets Law
Alan J. Kluger
Litigation – Banking and Finance
Litigation – Real Estate
Todd A. Levine
Litigation – Real Estate
Steve I. Silverman
Daniel N. Rosen
Eminent Domain and Condemnation Law
Based entirely on peer review, the methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.
Founding Member Alan Kluger said, “this recognition is yet another proud moment for the firm. The number of attorneys recognized again and again demonstrates the depth and expertise of our team, and the dedication to our clients.”
The KKSKL team is proud to announce the addition of Jordan Ziegler to our commercial litigation practice. “Jordan demonstrates a passion for the law and client advocacy, and we look forward to having him on our team,” said Alan Kluger, founding member. Read more below about Jordan and the experience he brings to the firm and its clients.
Jordan graduated from the University of Florida Levin College of Law as a member of the Legal Honor’s Society and the Teaching Assistant for Advanced Trial Practice. During law school, he served as a legal intern for Judge Robert N. Scola, Jr. of the United States District Court for the Southern District of Florida, and as a legal intern for Senior Judge Paul C. Huck of the United States District Court for the Southern District of Florida.
Prior to law school, Jordan worked with O’Quinn Stumphauzer & Sloman P.L. on white-collar criminal actions, federal regulatory investigations, and health care fraud actions. He graduated with honors from Tufts University with a B.A. in Economics and Spanish, and a concentration in Biomedical Engineering. Outside of the office, Jordan competes in Ironman competitions and enjoys portrait photography.
Bruce A. Katzen is chairman of the trust and estate’s litigation practice group at Kluger Kaplan Silverman Katzen & Levine PL in Miami. He focuses his practice on litigation of probate, trust and guardianship disputes as well as commercial litigation, including corporate matters, securities, accountants’ liability and stockbroker liability and Financial Industry Regulatory Authority arbitrations. He has become particularly recognized for his work in the areas of financial fraud, franchise disputes, probate, trust and guardianship disputes, company purchase and sale disputes, and life insurance coverage disputes.
Katzen’s early training as a certified public accountant piqued his interest in the complex financial fraud and probate cases that he handles for his clients. Given the technical financial issues in most of his cases, his background enables him to more thoroughly understand the issues, more precisely examine witnesses and experts, and more zealously advance his client’s position.
Q: What’s the most rewarding aspect of working as a plaintiffs attorney?
A: The most rewarding aspect of working as a plaintiffs attorney is assisting individuals who have been injured or harmed in some fashion. In my practice, I frequently have clients come to me facing emotional and financial hardship and are in need as a result of them being wronged. It is rewarding to work with them to right this wrong and recover damages on their behalf.