PROTECTING THE INTEGRITY OF REFERRAL SOURCES UNDER FLORIDA STATUTE s. 542.335

Posted on September 24, 2017 by David Adelstein Posted in injunctions | Tagged Florida Statute 542.335, legitimate business interest, non-compete, non-solicitation, referral, referral sources

Referral sources are generally important for all businesses. Due to their importance, certain businesses require employees to execute non-solicitation or even non-compete agreements to protect the integrity of their referral sources. Now, whether referral sources for a particular business constitutes a legitimate business interest (very important words) is a question where the context must be examined. Nonetheless, in a case that is certainly important for businesses, the Florida Supreme Court held that referral sources can serve as a legitimate business interest. While this case dealt with home health care companies, the rationale would be the same no matter the business, provided that referral sources are contextually a legitimate business interest for that business. For more information on this case, please check here.

The term “legitimate business interest” is a specific term used in Florida Statute s. 542.335, a statute I have discussed in other articles dealing with valid restraints on trade, such as restrictive covenants contained in non-compete or non-solicitation agreements. These are the types of agreements that a business would require an employee to execute as a condition of employment to protect the integrity of referral sources. Again, the restrictive covenant language –such as language precluding the employee upon leaving from competing or utilizing referral sources–needs to actually serve a legitimate business interest based on the particular business’ strategies, relationships, and objectives.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

FEDERAL INTERPLEADER DEALING WITH COMPETING CLAIMS OVER UNDISPUTED PAYABLE TO SUBCONTRACTOR

Posted on September 23, 2017 by David Adelstein Posted in interpleader | Tagged 28 USC 1335, federal interpleader, Federal Rule of Civil Procedure 22, injunction, interpleader, interpleader attorney's fees, interpleader injunction, undisputed money, undisputed payable

What do you do if you are holding undisputed money owed to a subcontractor? Well, you make an effort to pay it or tender it! Right? I am never a fan of a client holding undisputed sums without a legitimate contractual basis.

There are circumstances, however, where the effort to pay an undisputed payable is not so easy. In fact, it is challenging, as in the below case example where the subcontractor filed for an Assignment for the Benefit of Creditors (referred to as an “ABC”). An ABC, in a nutshell, allows an insolvent entity to file an insolvency action in state court governed by state law and choose its assignee (versus a federal bankruptcy action governed by federal law where a trustee is appointed). One major difference is that there is no automatic stay in an ABC as there is in a federal bankruptcy action. Thus, the insolvent entity can still be sued, but, while that entity is in an ABC, there are many creditors that will not be able to enforce a judgment. (See Florida Statute Ch. 727).

In Balfour Beatty Construction, LLC v. New Era Lending, LLC, 2017 WL 3971438 (MD.Fla. 2017), a general contractor on a pool swimming pool rehabilitation project at a large Disney hotel was holding approximately $100,000 from a subcontractor that instituted an ABC. As a result of the ABC, the subcontractor’s subcontractors and suppliers and other creditors made a claim against this money. (It is uncertain whether any of these entities had lien or payment bond claims.) Due to the competing claims for the same money, the general contractor cleverly filed a federal interpleader action pursuant to 28 U.S.C. s. 1335 and Federal Rule of Civil Procedure 22. The general contractor acknowledged that the money was an open payable owed to the subcontractor that filed an ABC, but due to the competing claims, did not know which subcontractor or supplier or creditor was owed which amounts. Hence, the interpleader action, which has advantages when a party is holding undisputed sums subject to competing claims.

The federal interpleader statute [28 USC s. 1335] gives the district court jurisdiction of “any civil action of interpleader or in the nature of interpleader,” where the claimants are minimally diverse and the plaintiff has “any obligation written or unwritten to the amount of $500 or more …” 28 U.S.C. § 1335(a)(1). “Interpleader is the means by which an innocent stakeholder, who typically claims no interest in an asset and does not know the asset’s rightful owner, avoids multiple liability by asking the court to determine the asset’s rightful owner.” In re Mandalay Shores Co-op. Hous. Ass’n Inc., 21 F.3d 380, 383 (11th Cir. 1994). The well-pleaded allegations in the Second Amended Complaint establish that here, there is a single Fund [money or bond that was interpleaded with the court’s registry] that is the subject of adverse claims by Defendants. Balfour [innocent stakeholder] has also demonstrated that it is a disinterested stakeholder in that it makes no claim to the Fund, except for its attorney’s fees and the costs of this action. Accordingly, the Court finds that this interpleader action is properly brought.

Balfour Beatty, supra, at *5.

The general contractor knowing it owed the money cleverly filed the interpleader lawsuit depositing the undisputed sums or provided a bond conditioned on a future court order and sued all parties that have made a claim or could make a claim against the sums. The contractor claimed no interest in the money except for its attorney’s fees and costs incurred in the action. Notably, a plaintiff in an interpleader action, known as the innocent stakeholder, may, and oftentimes is as a matter if equity, awarded attorney’s fees and costs if the interpleader action is successful. See Murphy v. Travelers Ins. Co., 534 F.2d 1155, 1164 (5^th Cir. 1976) (“In fact, as a general rule, when an interpleader action is successful, the court often awards costs, as well as attorney’s fees, to the stakeholder.”) See also Aetna Life Ins. Co. v. Outlaw, 411 F.Supp. 824, 826 (D.Md. 1976) (“The theory behind the award of attorneys’ fees in interpleader actions…is that plaintiff by seeking resolution of the multiple claims to the proceeds benefits the claimants and that plaintiff should not have to absorb attorneys’ fees in avoiding the possibility of multiple litigation.”).

Additionally, the general contractor knew that by filing an interpleader action, it could also move for a contemporaneous injunction preventing all of the potential claimants from prosecuting an action pertaining to the undisputed sums:

Title 28, United States Code, Section 2361 allows a district court to enter an order in an interpleader action “restraining [claimants] from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action until further order of the court.” The district court has the authority to “discharge the plaintiff from further liability, make the injunction permanent, and make all appropriate orders to enforce its judgment.” .

Balfour Beatty, supra, at 5 (citations omitted).

By moving for an injunction, the general contractor—the innocent stakeholder—could move the court for a temporary restraining order/injunction and then a permanent injunction preventing any existing or future action asserted against it for the recovery of the undisputed sums.

In this circumstance, and without knowing all of the nuances of the case, this strategy was extremely clever. By filling the interpleader action, the contractor had a basis to recover the attorney’s fees it incurred in dealing with competing claims and move for an injunction to prevent numerous, competing claims over the same money.

Strategy is always important. Always. Here, the strategy not only worked, but it was clearly the most effective strategy based on the factual issues in the case in light of the subcontractor filing an ABC. Good strategy is rewarded!

CONTRACTORS: REVISIT YOUR FORCE MAJEURE PROVISIONS TO ACCOUNT FOR HURRICANES

Posted on September 12, 2017 by David Adelstein Posted in Contract Drafting | Tagged builder's risk, force majeure, force majeure provision, hurricane, hurricane impact, hurricane irma, property damage

We now know and can appreciate the threat of hurricanes. Not that we did not appreciate the reality of hurricanes–of course we did–but Hurricane Harvey and Hurricane Irma created the type of actual devastation we fear because they hit close to home. The fear came to life, creating panic, anxiety, and uncertainty. It is hard to plan for a force majeure event such as a hurricane because of the capriciousness of Mother Nature. But, we need to do so from this point forward. No exception! And, I mean no exception!!

A force majeure event is an uncontrollable event that cannot be anticipated with any degree of definitiveness. The force majeure event will excusably delay or hinder performance obligations under a contract. One type of force majeure event is a hurricane—an uncontrollable and unforeseen act of Mother Nature.

Standard construction contracts will contain some type of force majeure language. The language will entitle the contractor to an extension of time to perform since the force majeure event will have excusably delayed the contractor’s performance. I am not going to rehash that standard language because this language needs to be modified and tailored to address the major risk of a hurricane. Not only is time impacted, but money is impacted too. We need to consider the total impact of a hurricane versus considering the impact in isolation or in a vacuum.

Take a look at your present construction contracts. Revisit the force majeure language. Does this language adequately address the time and monetary impacts associated with a hurricane? If it does, great! If it does not, or can be written much better, now is the time to make this language a MUST-INCLUDED provision in your construction contracts because this risk is real. It is not illusory and it will be a real risk during hurricane season. If you do not know or are unsure as to the language, please engage a construction attorney to review your contracts or propose standard language for you catered to your business needs. Even if you feel comfortable with the language, I would still encourage you to have a construction attorney review the language and provide constructive feedback on the language. At this point, there is no excuse to neglect this risk or minimize the potential of a devastating time and cost impact. Regardless of the type of construction work you perform, this risk needs to be addressed. Any owner should appreciate this risk because it is a reasonable risk that needs to be accounted for with certainty in your construction contract. Is this a risk you completely want to assume from a cost standpoint?

I have drafted numerous force majeure provisions tailored to the risks of a project and business objectives of a client. I have drafted specific provisions or negotiated provisions dealing with the risk of a hurricane. Based on this experience, here are my suggestions when considering the risk of a hurricane and the potential time and monetary impacts associated with the risk:

1) Make sure there is builder’s risk insurance covering property damage during construction. Builder’s risk insurance policies are specialized property insurance policies for construction projects. Make sure the policy does not exclude hurricanes. In other words, you do not want hurricanes to be an excluded peril, particularly if there is the chance your work will take place during the hurricane season and/or you are performing work where storm surge or flooding caused by a hurricane can be an issue. If there is a sub-limit for hurricane-caused damage, know what that sub-limit is. You want to know a) what property and materials will be covered for hurricane-caused damage, b) whether costs to protect the property and materials from the hurricane are covered, c) whether the policy covers repair costs, and 3) whether the policy covers delay-type damage caused by the hurricane. Get a copy of the builder’s risk policy in advance. This way you know whether or not you need to supplement the policy accordingly or, alternatively, you want specific perils covered before that policy is bound. In fact, you will likely want to supplement this with a construction equipment / inland marine insurance policy. Work with an insurance broker that has experience with construction projects to ensure you have the right insurance in place for the project and your business.

2) Make sure your contract specifically identifies a named storm such as a hurricane as a force majeure event. Make sure your contract specifically identifies a hurricane as a force majeure event. Be specific. A hurricane should be an event that entitles you to additional time to perform since time will be spent protecting the work and tying down equipment and materials, time will be spent dealing with the actual hurricane, and time will be spent assessing the damage, remediating the damage, and ramping back up.

3) Make sure your contact entitles you to delay-related compensation associated with a hurricane such as a force majeure event. A time extension for a hurricane is a given. But, what about compensation for the impact? Your project schedule is not going to include the risk of a hurricane, as there is no reasonable way to include that time in a project schedule. Hence, the time extension. As we know though, time is money. You want to include a provision that entitles you to compensation for the time impact. The provision should entitle you to utilize contingency money for any delay or, perhaps more appropriately, entitle you to a change order for the time-related costs. (I have even drafted provisions that include a specific force majeure contingency to address associated costs for a force majeure event.) You can even stipulate to a daily rate for such time-impact costs (which I have also done) caused by a hurricane or force majeure event. A hurricane will not only prevent you from performing, but it will shift your performance to essential activities (that will not be included in your schedule). It is reasonable for impact-related costs to be recoverable for such a force majeure issue. It is unreasonable for the risk to be entirely shifted to the contractor because Mother Nature is certainly a risk that a contractor cannot control.

4) Make sure your contract entitles you to recover costs associated with preserving and protecting work in-place, materials, and equipment. As mentioned, a hurricane will divert your performance to progressing the work to preserving and protecting work in-place, materials, and equipment. All of this needs to be protected from prolonged, heavy wind activity, torrential rain, and potential surge and flooding. There are costs associated with this and you want to make sure this is performed to minimize the likelihood of any loss. You also want to make sure you have time to perform this work. Be safe, rather than sorry, and do not wait to the last minute to see what direction the hurricane ultimately pursues. Hurricanes, as we know, are unpredictable and take unpredictable paths. We need to make sure we have time to not only preserve and protect the work, materials, and equipment, but that our employees and subcontractors (and their families) safely make the right decisions to protect their homes and families. Similar to the above, make sure your contract specifies how you get paid for this type of work – whether through contingency funds or, perhaps more appropriately, a change order. Notifying the owner in writing in advance of the protective measures being performed is always a good idea. If the owner elects not to implement such measures because it does not want to bear the cost, then the owner is evidently bearing risk.

5) Know your contractual notification requirements. Your contract probably includes notification provisions to address time impacts and costs associated with protecting the work. Make sure these provisions are reasonable in light of a hurricane or force majeure event. Your priorities when dealing with a hurricane, in particular, will be shifted. For this reason, you want to make sure the notification provisions are not unreasonably onerous and are more than reasonable to account for the issues you will be dealing with. Think these issues through. Remember, not only will you be dealing with the issues associated with the construction project, but there will be internal issues dealing with the safety of your employees, their families, and any subcontractors you hire.

Do not panic if your contract currently does not, in your opinion, sufficiently address all of these items. You can address this moving forward. You should address this moving forward. Again, no excuses. And, again, do not be reluctant to hire a construction attorney that can best protect your rights moving forward to account for this risk that we know is REAL.

MAKE PRUDENT DECISIONS REGARDING YOUR HURRICANE IRMA PROPERTY DAMAGE CLAIMS

Posted on September 11, 2017 by David Adelstein Posted in Uncategorized | Tagged hurricane irma, hurricane irma property damage, irma, property damage, property insurance

Hurricane Irma barreled down on us with all of her forceful winds and torrential rains. She was scary and relentless. There was mass evacuation. Commercial flights were booked. Trains were booked. There was gridlock with the concern as to whether gas would even be available. There were many people that did not evacuate, uncertain as to the eventual path Irma would take. Originally projecting an easterly course, people on the east coast evacuated to the west coast, central Florida or out-of-state. She then shifted to a westerly course forcing people on the west coast to evacuate to the east coast, central Florida, or out-of-state. It was chaos stemming from the total unpredictability of Mother Nature. It was chaos stemming from the dreadful images of Hurricane Harvey. Mother Nature and all of her uncertainty is undoubtedly frightening, as proven by her devastation throughout the amazing state of Florida.

We are fortunate. We made it through her wrath. We have our life and our health. This is the most important. I repeat — the most important. Sure, there may be property damage at our house or in our community, but it could always be worse. I repeat again — it could always be worse. Assets are replaceable. Life and health is not replaceable.

When it comes to property damage, perspective is important. Do not forget perspective. Please do not engage in an emotional knee jerk reaction and hire the first person that comes your way to assist with the damage and fallout of Irma. Disaster unfortunately causes others and the unqualified to prey on vulnerabilities. Take a deep breath and do not neglect to digest your damage and do your due diligence on your course of action and hiring someone you will trust and know will assist in your needs. Here are some tips I encourage:

1) Survey the damage. After you have initially digested and assessed the damage, do another walk-through of your property and survey and notate the damage you are observing. Either get a pen and pad and write down your assessment or use your phone, ipad, or laptop to memorialize your observations.

2) Persuasively photograph the damage. Sure, everyone tells you to do this. But, I am telling you to look at the photos you take to ensure you are capturing the damage to the best of your ability. This means to focus on the elevation of your photo and the proximity of your camera or phone (in the case of a camera phone) to the damage or item you are capturing. The reason for this is to persuasively capture the damage – take photos from various elevations, angles, and distances to capture the water damage and hurricane-caused damage. Correlate the photo with your written survey. If you use a camera that is not a camera phone, date stamp the photograph.

3) Persuasively video the damage. Similar to above, if you have a systemic leak, do not just photograph that leak. Take a video of it that captures the water intrusion and movement of the leak. Correlate your video with your written survey. You can also take a video of the damage and narrate that damage as you are observing it.

4) Obtain a copy, if you can, of your property insurance policy or your declaration page so that you can submit a claim ASAP. If you have a property insurance policy, have this handy. Insurance is complex and it is always advisable that you work with a professional when submitting a claim under your policy for hurricane-related damage. You will want to submit an insurance claim soon to report the damage caused by Irma. Your property insurer is anticipating claims caused by Irma.

5) Hire a trustworthy and qualified professional. There will be a lot of lawyers and/or public adjusters soliciting your business. Lots of them. They will be offering to help. Some will have good intentions. Others will not. They will want you to pay them a contingency percentage of anything you receive from your property insurer (oftentimes, a minimum of 20% or more based on the issue). You want someone QUALIFIED and you can TRUST – that you know will not take advantage of the situation and will keep you informed and give you the best advice so that you can make the most informed decisions. This is very important and based on the severity of the damage you may want to explore different options to compensate a professional.

6) If you hire a contractor, make sure they are licensed. If you hire a contractor to implement immediate repairs and remediate water intrusion, make sure they are licensed and read what you sign. A reason to engage a professional is to ensure you are properly notifying your property insurer and you are not being taken advantage of by hiring a qualified professional. Also, make sure you save all contracts, invoices, and payments you make to preserve a basis for reimbursement from your property insurer.

7) Do not unilaterally discard any damaged contents or otherwise. Do not start throwing things away or discarding damage before you engage in items 1 – 5 above. A reason you want to hire a professional is so that you do not prejudice your rights by discarding potential evidence before notifying your insurer.

The key is not to act haphazardly based on your emotional reaction to the damage. I know it is emotional. I get it. But, because it is emotional, you want to make sure that you are implementing prudent decisions moving forward to maximize your property insurance. You want to make sure you are implementing a path that benefits YOU!