By: Justin C. Carlin
As a business litigator who depends on business litigation cases to sustain my business law practice, it may seem strange that I would write a blog post about how to avoid litigation. But my goal as a business attorney is to provide valuable services to people, so I’ve always made it a practice to assist my clients with avoiding litigation, even though I am a litigator. Here below are my top five strategies for avoiding business litigation in South Florida: READ MORE
By: Justin C. Carlin
Those who know me even moderately well know that I am a huge Florida State football fan. So, I was obviously very pleased to learn that FSU’s contract with its preeminent coach, Jimbo Fisher, was extended for five years. Upon reading the contract extension, however, I was somewhat dismayed that the buyout for his early termination of the contract was “a mere” $5 million in 2016, $3 million between 2017 and 2018, and $1 million before 2019.
While buyouts in the low millions are properly considered “real money,” it’s conceivable that a competing university (or even an NFL team) could, at some juncture, pay the buyout money and lure Jimbo Fisher away from FSU. If Jimbo Fisher is considered so valuable to FSU, and FSU is offering Jimbo such a high salary (in terms of pay, the contract places Jimbo in the top five of all college coaches), why wouldn’t FSU req
uire that the buyout be higher?
Rather than any inability of FSU to convince Coach Fisher to accept a higher buyout, I surmise that the buyout was mostly the result of Florida law, which prohibits so-called “penalty clauses” in contracts. Under Florida law,
parties to a contract may stipulate in advance to an amount to be paid or retained as liquidated damages in the event of a breach. The Florida Supreme Court has established a two-prong test to determine whether a liquidated damages provision will be stricken as a penalty clause. First, the damages consequent upon a breach must not be readily ascertainable. Second, the sum stipulated to be forfeited must not be so grossly disproportionate to any damages that might reasonably be expected to follow from a breach as to show that the parties could have intended only to induce full performance, rather than to liquidate their damages. READ MORE
By: Justin C. Carlin
Applying Florida law, the Eleventh Circuit Court of Appeals recently issued a decision (Kolodziej v. Mason, — F.3d —, 2014 WL 7180962) involving a fundamental question of contract law on somewhat interesting facts. A Texas criminal attorney (James Mason) handling a high-profile murder case asserted that it was impossible for his client to have committed certain murders in accordance with the prosecution’s suggested timeline. Specifically, he argued that his client would have had to get off a flight in Atlanta and travel to a La Quinta Hotel (several miles away) in only 28 minutes. Thus, Mason challenged the prosecution to prove that somebody could make that route and that he’d “pay them $1 million if they [could] do it.” Mason’s remarks were later featured in a television program on NBC, as follows: “I challenge anybody to show me—I’ll pay them $1 million if they can’t do it.”
A law student at the South Texas College of Law heard Mason’s (edited) remarks and interpreted the remarks as an offer to form a contract that could be accepted by performance. The law student from Texas went to Georgia and actually recorded himself traveling the route from the airport to La Quinta in less than 28 minutes. He then sent Mason a copy of the recording, along with the letter demanding payment of $1 million. Mason refused payment, and the law student sued both Mason and his law firm in federal court, alleging breach of contract. The trial court entered summary judgment in favor of Mason, and the law student appealed. READ MORE
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