Originally published by Law360 (January 2, 2023)
"From cryptocurrency exchange FTX investor lawsuits against celebrity promoters to abortion restrictions, Florida courts are expected to tackle a number of thorny issues in 2023, including a measure that could help defendants wield the anti-SLAPP statute more effectively and a bellwether trial on Lyft's for its drivers' use of its app.
Here are some cases attorneys in the Sunshine State will be watching in 2023.
Investors come after FTX
The bankruptcy of the beleaguered cryptocurrency exchange FTX may be playing out in Delaware, but South Florida is home to an investor lawsuit accusing FTX's former CEO Sam Bankman-Fried as well as several professional athletes and celebrities of scheming to deceive investors and offer them unregistered securities.
But investors may have a difficult time succeeding on their claims against celebrity cryptocurrency promoters, according to Kevin Paule of Hill Ward Henderson in Tampa. He pointed to a ruling in California in December dismissing claims against reality television star Kim Kardashian and others for promoting the cryptocurrency EthereumMax. The judge found the investors did not detail which promotions they saw that led them to buy EthereumMax.
Tying the celebrities to the company's wrongdoing will be difficult, too, he said.
"I would think it's unlikely that Tom Brady, for example, was aware of everything that was going on at this company," Paule said. "It's much easier to go after the actual insiders who were operating the company."
The collateral effect of the FTX bankruptcy could reverberate in Miami, where a number of cryptocurrency companies have set up shop in the last few years, according to Mark Raymond of Nelson Mullins. If FTX's assets go up for sale in the bankruptcy, the big players in cryptocurrency will likely want to buy them, he said.
"It will benefit the Miami community," Raymond said.
The case is Garrison v. Bankman-Fried et al., case number 1:22-cv-23753, in the U.S. District Court for the Southern District of Florida.
Anti-SLAPP appeals on the Florida Supreme Court docket
The Florida Supreme Court is weighing whether the state's anti-SLAPP statute allows the appeal of a non-final order denying a motion that asserts a suit is inconsistent with Florida's prohibition on SLAPP suits.
The case involves blogger Kevin Vericker, who called North Bay Village's attorney, Norman Christopher Powell, incompetent, dishonest, unethical and unqualified on his blog about local news. Vericker asked for summary judgment to end Powell's defamation suit, arguing that Powell could not prove that the blogger acted with malice, but the trial judge denied the motion after finding there was enough evidence that a jury might find malice.
The Third District Court of Appeal dismissed Vericker's petition but certified a conflict with the Second District Court of Appeal, which has ruled that interlocutory appeals like this one are allowed under the anti-SLAPP statute because the continuation of a SLAPP suit chills constitutional rights, and that harm is exactly what the statute is trying to prevent.
Thomas Julin, a First Amendment specialist at Gunster, said the anti-SLAPP statute is clear that frivolous lawsuits targeting First Amendment rights should not go on any longer than necessary. The problem, he said, is that courts have a strong policy against piecemeal review of a case.
"The general law is the fact that you have defend a lawsuit is not irreparable injury," Julin said. "But here it's not just that you have to endure a lawsuit. It's that it's being used to punish your First Amendment rights. That should be considered irreparable injury."
He noted that the Florida Bar Appellate Rules committee has proposed changing the state's procedural rules to allow immediate appeal of denials of motions to dismiss like that in the Vericker case, so the Supreme Court may opt to take that route instead of taking up the Vericker case.
The parties have briefed the high court on jurisdiction and are waiting to see whether the justices decide to weigh in or not.
The case is Vericker v. Powell, case number SC22-1042, in the Supreme Court of Florida.
Uncertainty over easements
Real estate lawyers are closely watching a case pending in the Third District Court of Appeal that could upend how easements are created and granted.
The case involves an undeveloped parcel of land that was designated as a parking area. In 2004, a developer granted and reserved easements permitting future owners access between the parcels as well as use of the undeveloped lot for parking, according to the briefs.
The developer sold the rest of the property but held on to the undeveloped lot, which was used for parking until 2019, when Common Wealth Trust LLC bought it out of foreclosure. Common Wealth then tried to invalidate the easements to re-zone it for development, according to the briefs.
The trial court in Miami ruled that the easements are void because they were created at the time that the developer, which is Common Wealth's predecessor, owned all the underlying property.
This could be a problem for a number of development projects in the state, according to Manuel Farach of Mrachek Fitzgerald Rose Konopka Thomas & Weiss PA.
"The problem is in almost every complex real estate project in Florida, the landowner creates easements on their own property with the intent to deed out parcels to third parties with the easements in place," Farach said.
Farach, who authored an amicus brief in the case for the Florida Land Title Association Inc., said in the brief that modern real estate practice requires grantors to create easements on their own land to build complex developments.
"The idea that you can't create easements on your own property is nutty because then you couldn't create subdivisions or multi-use property," he said.
In its brief, Common Wealth calls this "breathless hyperbole" and says this is a narrow, unique case that involves a developer who failed to file the necessary documents and follow the required procedures.
The Third District heard oral arguments in December and should issue a decision in 2023.
The case is AFP 103 Corp. v. Common Wealth Trust Services LLC, case number 3D21-2117, in the Third District Court of Appeal of Florida.
Lyft faces product liability claims
A woman who was hit by a Lyft driver will get to take her product liability claims against the ride-sharing company to trial in the coming year after a Florida judge ruled that the company's network application is a product, not a service, and subject to product liability laws.
Plaintiff Theresa Brookes, who was hit in January 2019 by a Lyft driver while crossing at an intersection in Palm Beach, Florida, claims that Lyft promoted reckless driving through the app that drivers use to pick up customers. The app requires drivers to respond to customer requests for pickups within 15 seconds, according to the suit.
After the September summary judgment ruling, Brookes' attorneys said this is the first time Lyft will have to face strict liability under product liability claims and puts the company and others that operate transportation apps on notice that they could be liable for their apps. A verdict in Florida could reverberate around the country.
"It's important the court system allow this to be tested," Ratzan said. "Is it safe? That's a question that is based on evidence for a jury to determine."
The case is Brookes v. Lyft Inc. et al., case number 2019-CA-004782, in the Fifteenth Judicial Circuit Court of Florida.
Abortion restrictions likely to be upheld
The Florida Supreme Court is weighing whether to take up a challenge to the state's newly passed ban on most abortions after 15 weeks of gestation. If it does so, the heavily conservative court could upend longstanding jurisprudence on abortion in the state.
Planned Parenthood and other abortion providers sued the state after Gov. Ron DeSantis signed into law prohibiting abortions after 15 weeks of pregnancy, with exceptions if the procedure is necessary to save the pregnant woman's life or prevent serious injury or if the fetus has a fatal abnormality. Previously, the state banned abortions after fetal viability, set at 24 weeks.
A trial court judge implemented an injunction in late June, based on the argument that the ban was unconstitutional, but the First District Court of Appeal lifted the block. The abortion providers asked in August for an emergency motion to vacate the automatic stay of the injunction, but the high court has failed to act on it.
The lack of urgency from the Supreme Court could indicate a willingness to uphold the 15-week ban, as well as any further restrictive laws the Legislature with its GOP supermajority might pass in the coming session. If the justices were to do that, they would have to interpret the right to privacy in the state constitution — put there by voters in 1980 — as excluding abortion and would have to throw out four decades of precedent on abortion and the privacy amendment.
The amendment, which grants citizens the "right to be let alone and free from government intrusion into his private life," has always been read by the courts to include abortion. But Robert Jarvis, a professor at Shepard Broad College of Law at Nova Southeastern University, told Law360 earlier this year that he expects this Supreme Court, with its 6-1 conservative majority, to rubber-stamp any abortion bans that come before it by simply saying that the privacy amendment never mentions abortion.
"There is another step that has to be taken in Florida that doesn't have to be taken in Oklahoma or Texas because of this privacy amendment, but let's understand that it's a molehill," Jarvis said. "It's a speed bump."
The case is Planned Parenthood of Southwest & Central Florida et al. v. Florida et al., case number SC22-1050, in the Supreme Court of Florida."
-Editing by Peter Rozovsky.