Thursday, December 29, 2011

3d DCA Watch -- Special Holiday Edition!

Wow, who knew the hardest working bunker in the law biz would keep on swilling right through the holidays, very impressive when you consider the holiday party got a little out of hand (again) -- let's not discuss what happened when the Bilzin shot put lunch club made an unannounced appearance and hung the mistletoe in a strategically awkward location -- say no more, as they say.


Goldblatt v. C.P. Motion:

Nice holiday present -- a $5 million liquidated damages award reversed:
We thus conclude that the liquidated damages clause was unenforceable because the damages were readily ascertainable, and it constituted a penalty.  Accordingly, we reverse the judgment award of $4,969,339 and remand for a proper determination of the actual damages.
American Safety v. Mijares:

Trial court reversed for applying limited exception to enforcement of mandatory forum selection clauses:
 Mijares asserts that litigation in Georgia might produce results inconsistent with the litigation remaining in Miami and that this constitutes a compelling reason to keep the litigation in Miami. While we agree that inconsistent and simultaneous interstate litigation is an applicable compelling reason, see McWane, Inc. v. Water Mgmt. Servs., Inc., 967 So. 2d 1006 (Fla. 1st DCA 2007), we do not agree it applies in this case to override Florida law’s presumption in favor of enforcing forum selection clauses. Mijares’ arguments regarding the possible impractical or inconsistent litigation it may have to pursue against other defendants who need not litigate in Georgia, do not overcome the certainty that Mijares freely agreed to the mandatory forum selection clause as to its claims against American.
Have fun in Georgia, Mijares!

Giordano v. Romeo:

Get ready kids, it's time to hold your nose and apply the law:
The business practices of Xcentric, as presented by the evidence before this Court, are appalling. Xcentric appears to pride itself on having created a forum for defamation. No checks are in place to ensure that only reliable information is publicized. Xcentric retains no general counsel to determine whether its users are availing themselves of its services for the purpose of tortious or illegal conduct.  Even when, as here, a user regrets what she has posted and takes every effort to retract it, Xcentric refuses to allow it. Moreover, Xcentric insists in its brief that its policy is never to remove a post.1 It will not entertain any scenario in which, despite the clear damage that a defamatory or illegal post would continue to cause so long as it remains on the website, Xcentric would remove an offending post.

However much as this Court may disapprove of business practices like those embraced by Xcentric, the law on this issue is clear. Xcentric enjoys complete immunity from any action brought against it as a result of the postings of third party users of its website.
 Who knew the application of the law could bring such sorrow?


Rumpole said...

So I am completely liable for the comments on my blog? Great. Another decade of anonymity.

Nickuaig said...

So I am completely liable for the comments on my blog? Great. Another decade of anonymity.