Orlando, FL

The Ninth Circuit’s decision in AK Futures LLC v. Boyd St. Distro, LLC has broad implications for the future of delta-8 THC as federal and state authorities grapple with the sudden popularity of these unregulated intoxicating products. This article examines the underlying dispute over delta-8 THC’s federal legality, as well as the AK Futures opinion and its likely impact on the hemp and marijuana industries and on the insurance companies that insure them.

A recent ruling by the Florida Supreme Court should universally limit personal injury plaintiffs to introducing only the discounted amounts Medicare paid, prohibiting plaintiffs from introducing the full amount of the bills, the majority of which they were never obligated to pay.

The U.S. Supreme Court reversed the Ninth Circuit, holding that lack of either factual or legal knowledge can excuse an inaccuracy in a copyright registration, and thus does not preclude a copyright holder from asserting a valid copyright infringement claim.

The Florida Supreme Court held that attorney-client privilege shields from discovery virtually any attempt to determine the relationship between a plaintiff’s law firm and a plaintiff’s treating physician. However, the Court did not address the opposite situation, namely, the extent to which privilege shields from discovery the relationship between an insured defendant’s law firm and the insured defendant’s retained compulsory medical examiner.

On January 6, 2022, the Florida Supreme Court amended Florida Rule of Appellate Procedure 9.130, effective April 1, 2022, to explicitly permit interlocutory appeals of orders granting or denying leave to amend a complaint to add a claim for punitive damages. The amendment now allows interlocutory review of both procedural and evidentiary challenges.

A recent Third Circuit decision examined the scope of the “any law pertaining to intellectual property” carveout to the immunity granted to internet platforms under the Communications Decency Act (CDA), ultimately choosing to significantly expand it to include the “nontraditional” intellectual property laws, including the right of publicity. In a previous decision addressing the same subject, the Ninth Circuit expressed concern that the interpretation that the Third Circuit now advanced will cause great uncertainty for the platforms and open the floodgates to litigation.

The Florida Supreme Court has refused to sign off on a proposed ballot title and summary, defeating an effort to place a question on the ballot next year that would permit “adults 21 years or older to possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason,” as well as allow existing medical marijuana dispensaries to sell it.

A recent decision by the U.S. Federal Circuit Court of Appeals dramatically changes the risk exposure for generic manufacturers that have a drug on the market with a skinny label. The Federal Circuit has paved the way for a finding of induced infringement against every skinny-label drug, many of which have been on the market for years, and therefore have years of potential exposure.

To protect patients and staff at long-term care facilities, and to avoid missteps, it is essential that such facilities immediately enact a written protocol to be disseminated to staff, residents and their families, and visitors.

A proposed Florida bill highlights the inherent conflict between the rights of the individual to accept and undergo treatment for legitimate medical conditions in contradiction to employers’ desire to have a “drug-free” working environment in order to maintain certain standards of work quality and safety.

When the art world makes headlines, it becomes clear just how important the field of at law is to all of us. From the upcoming sale at auction of a lost Lewis Chessman, to a cruise ship crashing into Venice Harbor, to the auction of Madonna’s personal possessions, Wilson Elser’s Art Law practice features summaries of recent news reports pertaining to art law and art markets.

When the art world makes headlines, it becomes clear just how important the field is to all of us. From Notre Dame de Paris suffering a devastating fire, to the first-ever photograph of a Black Hole, to the discovery of ancient treasures in Lake Titicaca, Peru, Wilson Elser’s Art Law Perspectives blog features summaries of recent news reports pertaining to art law and art markets.

Ultimately, the new federal protections contained in the 2018 Farm Bill will move the CBD-based food and supplement industry closer to unrestricted national and international distribution of hemp-derived CBD products. Until approved by the FDA, however, CBD as an ingredient in foods and supplements will continue to be risky.

The wake of Hurricane Irma is generating yet another storm of which insurers must be aware − the storm of false or inflated claims. The assignment of benefits (AOB) crisis that has loomed over Florida in the past actually may be the silver lining.

The U.S. Department of Labor has withdrawn its 2015 and 2016 Administrative Interpretations regarding joint employment and independent contractors, which many businesses had argued were unduly burdensome on employers. While an attempt to limit the expansive definition of “employment,” this move does not relieve companies of their legal obligations under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act.   

A Florida appellate court has upheld the suppression of data from an automobile’s event data recorder, focusing on the evolving nature of technology and privacy. It analogized the black box information to that of other electronic storage devices for which courts have recognized a reasonable expectation of privacy, such as a cell phone.

The Florida Supreme Court has found that insurance companies can owe attorneys’ fees to insureds under Florida law if they incorrectly deny benefits. The court found that the degree of wrongfulness or bad faith in the denial does not factor into the decision to award attorneys’ fees. 

The Florida Supreme Court recently held that defendants are precluded from introducing evidence regarding collateral source benefits that plaintiffs may receive in the future from social legislation, such as Medicare and Medicaid. The decision has significant ramifications because it removes a tool that could be used to diminish the jury award for the plaintiffs’ future damages.

In addition to tailoring prescription drugs to the needs of particular classes of patients, 3D printing opens the possibility of tailoring each tablet to the needs of one specific patient, regardless of the physical location of the printer. Until now, this has not been financially feasible with mass-produced medications.

The Supreme Court’s ruling granting same-sex couples nationwide the constitutional right to marry strikes down same-sex marriage bans in 13 states and mandates that all 50 states must recognize same-sex unions. Employers should review benefits programs, handbooks and employment policies and practices to ensure they treat all married couples in the same manner.

A recent decision by the Florida Supreme Court confers a benefit on a state-created entity that provides property insurance that private insurers do not enjoy. Critics of the opinion say that the entity has no incentive to handle claims quickly and correctly, and that, as a practical matter, this decision actually creates a disincentive for it to do so. Proponents counter that the entity will not be burdened the by abuse of bad faith litigation that drives up rates to policyholders.

Florida’s First District Court of Appeals noted that before requiring the head of a state agency to testify, a trial court must find that the party seeking the testimony had exhausted all discovery tools in an attempt to obtain the information sought and that the testimony sought is necessary and unavailable from other witnesses. 

A Florida appeals court ruled that in a first-party coverage dispute, settlement following determination of liability and the extent of the insured’s damages in the appraisal process is sufficient to permit filing of a bad faith claim, even in the absence of a ruling that the insurer has breached the insurance contract.

A recent Florida intermediate appeals court decision suggests, by extension, that a Canadian insurer that only insures Canadian residents could be sued for bad faith in Florida for failing to perform certain duties that must be performed in Florida. The discussion focused on personal jurisdiction and Florida’s long-arm statute.

The Eleventh Circuit affirmed a district court’s judgment denying an insurer’s motion for summary judgment on no duty to defend or indemnify its insured in connection with hurricane repair work, and granting in part and denying in part a cross-motion for summary judgment filed by plaintiff. The insurer was estopped from denying coverage because the insurer failed to adequately comply with the procedures set forth in Fla. Stat. § 627.426.

While Florida’s Second District Court of Appeal ruled that it would not be fair to businesses to require them to preserve video evidence without a written request, the court noted that the Fourth District Court of Appeal has held there can be circumstances in which a defendant has a duty to preserve evidence absent a request to preserve it. There is now a conflict among the appellate districts, which may ultimately be resolved by the Florida Supreme Court.

Effective September 1, 2012, Florida will take another major step toward paperless litigation. While not substantive law, the procedural events that are occurring in Florida in this area are leading to an e-practice that will result in greater efficiency and expediency in the practice of law in Florida.

Florida’s First District Court of Appeals distinguished cases involving payments made by Medicare from those involving payments made by a private health insurer to whom the plaintiff actually paid premiums and “earned” the benefits.

Both houses of the Florida Legislature have passed a bill that would allow defendants in "enhanced injury" product liability cases to present evidence relating to the fault of anyone whose negligence may have contributed to an underlying accident. Governor Rick Scott is expected to sign the bill into law.

A bill pending in the Florida Legislature could change the litigation landscape in product liability cases where the "crashworthiness" of a motor vehicle is involved.