Tuesday, November 15, 2016

A fine imposed by a homeowners’ association (“HOA”) for violating the HOA’s governing documents is a debt for purposes of the Florida Consumer Collection Practices Act

In Agrelo v. Affinity Management Services, LLC,  Case No. 15-14136, the Eleventh Circuit on November 9, 2016 overruled a Florida  district court decision and held that a fine imposed by a homeowners’ association (“HOA”) for violating the HOA’s governing documents is a debt for purposes of the Florida Consumer Collection Practices Act. The Court also held that it was a question of fact under Florida law as to whether the homeowner's association was libale for the acts of debt collector law firm. The Court found, " Unlike the FDCPA, the FCCPA’s proscriptions are “not limited to debt collectors.” Schauer v. Gen. Motors Acceptance Corp., 819 So.2d 809, 812 n.1 (Fla. Dist. Ct. App. 2002). Compare 15 U.S.C. § 1692e (prohibiting “[a] debt collector” from engaging in “any false, deceptive, or misleading representation or means in connection with the collection of any debt”), and id. § 1692f (prohibiting “[a] debt collector” from employing “unfair or unconscionable means to collect or attempt to collect any debt”), with Fla. Stat. § 559.72 (regulating the conduct of any “person” collecting debts).[The homeowner's association] is not exempt from the FCCPA simply because it is not a statutorily defined debt collector."

Tuesday, November 8, 2016

Predictive Scheduling Laws

New laws are being touted at federal, state, and local levels to alter the ways employers schedule workers. Proposed bills  suggest the need to  provide increased predictability to workers' schedules by requiring employers to give employees advance notice of work schedules, pay employees for rescheduling by the employer and so forth.  So far, such proposals have focused on the food service, hospitality, and retail sectors who have fluctuating work schedules.Unions in particular have been pushing for  such legislation.On the other hand, retail and hospitality employers and industry groups, take an inapposite view due in part to the variation in their customer demand. Such employers argue that predictive scheduling  would hamper their businesses by eliminating flexibility 

In January 2015, San Francisco became the first city to pass predictive scheduling laws implementing the Predictable Scheduling and Fair Treatment for Formula Retail Employees Ordinance as part of the city's larger Retail Workers' Bill of Rights aimed at chain stores and restaurants. The ordinance among other things, that employers pay employees for cancelled on-call shifts, provide notice to workers of their biweekly schedules, give new hires written estimates of expected hours and schedules, and offer extra hours to current part-time employees before hiring new workers or utilizing a staffing agency. In September 2016, Seattle  followed with a unanimous vote on its Secure Scheduling Ordinance, which  imposes additional requirements on employers. 

The U.S. Department of Labor has voiced that  it is considering  whether employees should be legally entitled to predictive scheduling under the Fair Labor Standards Act.Predictive scheduling legislation currently is pending at the federal level as well as a the state level in California, Connecticut, Illinois, Indiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, Oregon and Rhode Island.


Monday, November 7, 2016

Mortgage Acceleration and Statute of Limittaions

The Florida Supreme Court has decided in Bartram v. U.S. Bank National Association, Case No. SC14-1265 (Fla. November 3, 2016) and held that a statute of limitations did not bar foreclosure for missed monthly installment mortgage payments notwithstanding that the mortgage had been previously been accelerated in a prior lawsuit.  Specifically, the Court ruled on the following certified question:
DOES ACCELERATION OF PAYMENTS DUE UNDER A RESIDENTIAL NOTE AND MORTGAGE WITH A REINSTATEMENT PROVISION IN A FORECLOSURE ACTION THAT WAS DISMISSED PURSUANT TO RULE 1.420(B), FLORIDA RULES OF CIVIL PROCEDURE, TRIGGER APPLICATION OF THE STATUTE OF LIMITATIONS TO PREVENT A SUBSEQUENT FORECLOSURE ACTION BY THE MORTGAGEE BASED ON PAYMENT DEFAULTS OCCURRING SUBSEQUENT TO DISMISSAL OF THE FIRST FORECLOSURE SUIT?
In Singleton v. Greymar Associates, 882 So. 2d 1004 (Fla. 2004) the Florida high court had ruled that res judicata did not bar successive suits on the same mortgage notwithstanding the mortgage had been previously accelerated. The borrower had argued in Singleton  that a lender was allowed only one acceleration of the note and mortgage, and  thus failure to successfully foreclose the mortgage in the first suit barred further foreclosures on res judicata grounds. However, the FLSCT ruled each monthly mortgage installment as a separate obligation, and accordingly  each monthly installment owed as beginning the running of a new statute of limitations. In so ruling, the Singleton Court emphasized the equitable nature of mortgage foreclosure actions.
The  Bartram reasoning carried forward as the Court restated Singleton’s holding  that “acceleration and foreclosure predicated upon subsequent and different defaults present a separate and distinct issue’ than a foreclosure action and acceleration based on the same default at issue in the first foreclosure action.” Borrowers should not be incentivized to stop making payments on future installments just because they were able to defeat foreclosure based on one particular default. The Court then discussed eight post-Singleton cases that extended Singleton’s res judicata analysis to cases involving a statute of limitations defense, and concluded that the underlying reasons support both res judicata and statute of analysis. 

Friday, November 4, 2016

Pleading of Equitable Claim Removes An Action From F.S. 768.79


In Davenport v. Thor Motor Coach, Inc., 2016 WL 5750502, the Eleventh Circuit applied Florida law as articulated in Diamond Aircraft Industries, Inc. v. Horowitch, 107 So.23d 362, 368-71 (Fla. 2013) that the pleading of an equitable claim in an action removes the action from teh application of teh Florida Offer of Judgment statute. This is true even if the equitable claim was patently without merit. In such a case, the only remedy would be under F.S. 57.105.

Protecting Practice and Trade Internal Manuals

A frequent question posed to me by business clients is how to protect their internal practice and trade manuals, often the compilation product of months if not years of work. Frequently such materials are purloined by a disgruntled ex-employee and provided to a competitor. The two traditional methods are to use copyright law and trade secret law. The former may or may not protect materials depending upon whether the underlying materials are deserving of copyright protection. However, the posting of the traditional copyright notice on the materials may suffice to deter prospective pilferage and use by a competitor. With respect to the latter protection, it is essential that the materials be marked and treated as  truly "confidential." The number of manuals should be tracked and there should be a prohibition against copying.

National Labor Relations Board nixes Uber arbitration agreements



The National Labor Relations Board has told a federal appeals court that arbitration agreements signed by Uber Technologies Inc drivers were invalid despite being voluntary, a key issue in a series of lawsuits claiming the company misclassified drivers as independent contractors

Thursday, October 27, 2016

SEC Releases Data on Enforcement and Whistleblower Actions--$100 Million Paid

The United States Securities and Exchange Commission ("SEC") has  commenced a record-breaking 868 enforcement actions in 2016. This milestone suggests the SEC's continuing commitment to expanding the scope and reach of its enforcement programs to remedy federal securities law violations.
The SEC recently cited in a release its use of computer data analytics to discover fraud,as well as heightened focus  on attorneys, investment advisers, and auditors..
The SEC release also noted  548 standalone or independent actions, 160 cases against investment advisers and investment companies, and 21 Foreign Corrupt Practices Act cases. The Agency also The total historical payouts under the Whistleblower Program now exceed $100 million.

100 Million Story Graphic

For more information go to https://www.sec.gov/page/whistleblower-100million