Contesting Judgments From Abroad

Originally posted on The Florida Litigator:

Imagine that your long time international business client calls you one day, in a panic, to tell you that a foreign court has entered a judgment against his company.  Now, some local lawyer is attempting to “domesticate” that judgment and enforce it against your client in the United States.  The judgment is for a large dollar amount and the stakes are high.  But the case is already over, isn’t it?  Your client has already lost, hasn’t it?

Of course not.

This is because foreign legal systems do not always comport with our notions of “due process” and substantial justice.  Look carefully at the foreign judgment and the proceedings and circumstances which gave rise to it.  There may be ample reason/opportunity for you to poke holes in it and, ultimately, defeat the entry of the judgment.

Foreign country judgments in Florida are governed by F.S. § 55.605.  That Statute provides several reasons…

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The Discovery of Private Financial Information in Commercial Litigation – Are your Secrets Safe and, if so, Until When ?

Originally posted on The Florida Litigator:

     Imagine that you are a Plaintiff in a very large, complicated, and potentially, very expensive commercial litigation matter.   You meet with your attorney to discuss the case.   You review the facts.   You ask the attorney how much it will cost and, of course, the attorney declines to describe with certainty the ultimate cost of the case.   It depends, she explains, on various factors outside of her control, mostly relating to the reaction/behavior of the other party and their attorney after they are sued. She assures you, however, that it will be expensive.   There will be pleadings to be filed, discovery to be requested, depositions to be taken and, potentially, a very long trial.

            Naturally, you ask her –  what are your chances of winning ?   Once again, your attorney demurs explaining, instead, that it is too soon to determine the answer to that question.   That will depend…

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How to Settle a Commercial Case (And How Not To)

Settlements can be achieved at the strangest times. There are settlements which can be made over the telephone, in the office, on the courthouse steps, or while you are driving in your car. Seldom does a settlement occur at the optimum time. The key to achieving an enforceable settlement, whenever and wherever it may occur, is understanding how to properly document it.

1. When to Make a Settlement Offer and Demand (and when not to).

There is an art form to settling cases. Part of the art consists of, as poker players say, “when to hold em and when to fold em.” This takes experience and generally cannot be described in detail in the context of this article. However, there are several general rules which bear mention.

The worst time to discuss settlement is generally after a ruling on the Summary Judgment Motion. If you have won the motion, chances are that your opponent is likely not in the proper frame of mind to discuss settlement. If you lost the Motion, it is likely that you or your client will not be in the proper frame of mind. Try discussing settlement after the motion has been fully briefed but before argument and before it has been ruled upon. At this time, there is often uncertainty in the air. Uncertainty is one factor which often convinces litigants to resolve disputes. After all, a settlement will remove the uncertainty and take the decision out of the hands of the Court or the Jury which is often desirable.

I like to discuss settlement after an important deposition has gone well for my client’s case. Most lawyers know, instinctively, whether the deposition has helped their case or hurt their case. During depositions, the parties are often all together in the same room. This is often a good time to discuss a potential resolution of the case. However, as mentioned, settlements can be discussed in a variety of contexts and there is no hard and fast rule as to when to make a settlement offer or demand.
2. How to Make a Settlement Offer.
Written settlement offers are often helpful. However, there should always be a legend at the top of the letter which indicates “Privileged and Confidential Settlement Communication.” Similarly, I like to include the phrase in the body of the letter which says: “this settlement shall not be enforceable unless a written agreement is signed by all parties.” This statement will likely eliminate the possibility that opposing counsel may argue that there was a “meeting of the minds” as to “all material terms” and, therefore, the settlement, which has yet to be signed, is enforceable. The settlement cannot be enforceable if there is a caption on your letter or email which indicates that no such enforcement can take place until a settlement agreement is signed by everyone.
3. Are Client Signatures Required ?

There are several misconceptions about settlements under Florida law. The first is that all of the relevant parties must sign settlement documents. While this may be a requirement for an enforceable mediation settlement, client signatures are not necessarily required in order to enforce a settlement achieved outside of mediation. See Fla. R. Civ. P. 1.730; Gordon v. Royal Caribbean Cruises Ltd., 641 So.2d 515, 517 (Fla. 3d DCA 1994) (holding that a settlement agreement reached in mediation must be in writing and executed by both parties in order to be binding); see also Smiley v. Greyhound Lines, Inc., 704 So.2d 204, 204-06 (Fla. 5th DCA 1998) (enforcing a settlement agreement despite one party’s refusal to sign the release); State Farm Mut. Auto. Ins. Co., 781 So.2d 500, 502 (Fla. 3d DCA 2001) (noting that when all parties have agreed to the essential terms of a settlement, it will be enforced). Since email can be the preferred mode of communication in the modern world, many settlements can actually be achieved by email and may be enforced by a Court. See Miles v. Northwestern Mutual Life Ins. Co., 677 F.Supp.2d 1312, 1315 (M.D. Fla. 2009) (concluding that an email constituted a binding and enforceable settlement agreement). The key is not necessarily the mode of communication but, rather, the ability to demonstrate that there has been a meeting of the minds as to all of the material terms.

4. The Material Terms of the Settlement

So, what are the material terms? Monetary settlements in collection cases tend to be straightforward and easier to document. For example, if your client is suing for the repayment of money the settlement can be easily documented by making a determination as to how much is to be paid, when, and what happens if the payments are not made. Complicated settlements arise when the parties are required to do things such as return products, calculate amounts owed based upon future events and exchange releases. The more extensive the settlement terms, the more likely the Court is to find that the settlement has to be in writing and signed by the parties.

However, the courts have held that a settlement does not necessarily need to be signed by the parties to be enforceable. Settlements can be enforced based upon an email exchange between the lawyers if the Court finds that all of the “material terms” have been included as part of the email exchange. See Warrior Creek Dev., Inc. v. Cummings, 56 So.3d 915, 917 (Fla. 2d DCA 2011) (finding that an email contained the essential and material terms of the settlement and thus enforcing the settlement agreement); Blunt v. Tripp Scott, P.A., 962 So.2d 987, 989 (Fla. 4th DCA 2007) (the party seeking to enforce a settlement agreement must show that the opposing party agreed to all of the material terms).

Generally, the mere fact that the parties have not agreed to the scope of a release is not enough to prevent enforcement of the settlement. See BP Products N. Am., Inc. v. Oakridge at Winegard, Inc., 469 F. Supp. 2d 1128, 1133 (M.D. Fla. 2007) (holding that uncertainty as to nonessential terms in a settlement agreement will not preclude its enforcement); Sands v. Wagner & Hunt, P.A., No. 09-60557-CIV, 2009 WL 2730469, at *4 (S.D. Fla. 2009) (noting that the “scope of the release” is not an essential settlement term). Conversely, lack of client approval can often be a valid reason for a Court to decline enforcement. See Sharick v. Southeastern Univ. of Health Sciences, Inc., 891 So.2d 562, 565 (Fla. 3d DCA 2004) (a party seeking to compel enforcement of a settlement must prove that the attorney has the “clear and unequivocal” authority to settle on the client’s behalf); see also Baratta v. Homeland Housewares, LLC, No. 05-60187-CIV, 2007 WL 2668585, at *2 (S.D. Fla. 2007).
5.  How to Conclude a Settlement

If you want to conclude an enforceable settlement, treat it as an urgent matter. This is because the longer each side has to negotiate the terms of the settlement, the longer they will negotiate. Trading one draft of the settlement agreement per day is a very inefficient way to conclude the deal. I like to have meetings with opposing counsel in which it is agreed, in advance, that no one will leave until the principals have all signed the settlement agreement or reached an impasse. In this manner, you will be able to see whether the parties are serious about settlement or are simply blowing smoke.

One way to document a settlement is to put it on the record in Court or at deposition. Many settlements are achieved at deposition, during a hearing or even at trial. If there is a court reporter present, it is usually a good idea to announce a settlement on the record and explain the terms in as much detail as possible. If clients are present, have them affirm the terms of the settlement by indicating their agreement on the record. In this manner, the client will not be able to change their minds and the settlement will later be immune from challenge.
In real life, even the best meaning people sometimes get cold feet and change their minds. The best way to prevent this is through signatures of all parties or an announcement on the record.

Litigation concerning the enforcement of the settlement can be time-consuming and expensive. Be forewarned, however, the courts will enforce settlements even when a client signature is not present and even when the scope of releases to be exchanged is in doubt. The key to the enforcement of settlements is the same as the law that governs the enforceability contracts – whether the parties had a meeting of the minds as to all of the material terms of the deal.


The Author gratefully acknowledges the assistance of Jacob Epstein in the preparation of this Post.

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2014 in review

The stats helper monkeys prepared a 2014 annual report for this blog.

Here’s an excerpt:

The concert hall at the Sydney Opera House holds 2,700 people. This blog was viewed about 13,000 times in 2014. If it were a concert at Sydney Opera House, it would take about 5 sold-out performances for that many people to see it.

Click here to see the complete report.

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It’s Bonus Time ! Top Ten Tips for Business Owners to Follow Regarding Their Employees.

Originally posted on The Florida Litigator:

This is the time of year where companies begin the process of evaluating their employees, their businesses and their future.  It is often a period in the life of a company where managers take stock of themselves and analyze those employees who have excelled and those who have not.   Compensation is often tied to an employee’s ability to excel during the course of the year and there are several things which companies can do in order to maximize employee efficiency and insulate themselves from future legal problems.  Here are some time worn techniques for preventing legal problems with your employees during  the coming year.

  1. Provide Written Job Descriptions.

The first question a new employee will ask is – what am I supposed to do?  This is a reasonable question and one which an employer should be readily able to answer.   An employee’s job should not be a guessing game.  …

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The Perils of A Family Business or How to Save Thanksgiving

Originally posted on The Florida Litigator:

Imagine that you are sitting at the Thanksgiving dinner table with your family—aunts, uncles, cousins, and distant relatives from out of town.  Someone at the table cavalierly asks: “who do to plan to vote for in the next election?”  World war III breaks out while the family members debate whether Obama or Romney is right for the county.

Now imagine that these same people are shareholders and employees in your family business.  If these people cannot agree among two candidates about whom to vote for, how they will be able to agree about the joint management of their financial affairs?  The answer is – only with great difficulty.  This is one reason why so many family businesses, and so many families, end up in costly litigation.

Here are some observations, from someone who has litigated many intra-family disputes, about what might have been done to avoid a nasty and expensive…

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Summary Judgment

Originally posted on The Florida Litigator:

Sometimes lay people and even practicing lawyers do not seem to understand what a Summary Judgment is and how to get one.   In some Courts, obtaining a Summary Judgment is difficult, if not impossible.   Other Courts love Summary Judgment and use it as a mechanism to reduce case load.   This article will provide some tips about how to get Summary Judgment and how to avoid having such a motion granted against your client.

1.            Where Summary Judgment Works and Where it Does Not.

There are certain cases which do not lend themselves to Summary Judgment.   Examples of such cases include the typical negligence case, medical malpractice and cases involving the interpretation of a contract where there is an ambiguity which is required to be explained by oral testimony.   Judges are reluctant to grant Summary Judgment in these types of cases because of the likelihood of reversal.   Remember that State and…

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