The topic of defamation has become more prevalent as civil discourse has eroded. Unfortunately, sometimes it is the rare board member and/or manager who has not been subject to some form of potential slander or libel throughout their course of community association service.
Host Donna DiMaggio Berger sits down with the highly respected litigator Keith Grumer of Grumer Law, to guide you through the complex legal terrain surrounding defamation as well as the ubiquitous non-compete clauses managers face throughout their careers. With their help, you'll learn the differences between libel and slander, understand statutory damages in cases of libel and slander per se, and identify crucial communication strategies to avoid potential legal disputes. Donna and Keith also tackle non-compete provisions, providing insights into how these clauses bind both management professionals and the communities they serve.
Donna and Keith talk about the emotional toll board members often face when slander strikes. They examine alternatives to litigation, like the power of an apology. They also outline the critical distinction between opinion and accusation, helping board members discern when it’s time to defend their reputation and when it might be wiser to let cooler heads prevail.
Finally, they dive deep into the psychological battleground of legal disputes, offering practical advice to mitigate the stress and toxicity that often accompany them. Donna and Keith emphasize the importance of maintaining a healthy lifestyle and the power of community support to stay afloat during these trying times. With a thoughtful approach to litigation, they arm you with the tools for a resilient and strategic response to the challenges that come with defending your integrity in the face of adversity.
Conversation Highlights Include:
The topic of defamation has become more prevalent as civil discourse has eroded. Unfortunately, sometimes it is the rare board member and/or manager who has not been subject to some form of potential slander or libel throughout their course of community association service.
Host Donna DiMaggio Berger sits down with the highly respected litigator Keith Grumer of Grumer Law, to guide you through the complex legal terrain surrounding defamation as well as the ubiquitous non-compete clauses managers face throughout their careers. With their help, you'll learn the differences between libel and slander, understand statutory damages in cases of libel and slander per se, and identify crucial communication strategies to avoid potential legal disputes. Donna and Keith also tackle non-compete provisions, providing insights into how these clauses bind both management professionals and the communities they serve.
Donna and Keith talk about the emotional toll board members often face when slander strikes. They examine alternatives to litigation, like the power of an apology. They also outline the critical distinction between opinion and accusation, helping board members discern when it’s time to defend their reputation and when it might be wiser to let cooler heads prevail.
Finally, they dive deep into the psychological battleground of legal disputes, offering practical advice to mitigate the stress and toxicity that often accompany them. Donna and Keith emphasize the importance of maintaining a healthy lifestyle and the power of community support to stay afloat during these trying times. With a thoughtful approach to litigation, they arm you with the tools for a resilient and strategic response to the challenges that come with defending your integrity in the face of adversity.
Conversation Highlights Include:
Hi everyone, I'm Attorney Donna DiMaggio-Burger and this is Take it to the Board where we speak Kondo and HOA. Most of us know the old adage sticks and stones may break your bones, but names will never hurt you. Well, that saying is not always true, because calling someone names may sometimes result in a lawsuit. Today, we're going to talk about two unrelated topics that can be extremely frustrating for both board members and managers Defamation and non-compete clauses.
Speaker 1:How many of you listening have been the subject of nasty and possibly defamatory comments sent out via mass email, uttered at board or membership meetings or posted on an unofficial association website? Have any of you had your career choices limited as a result of a lengthy non-compete clause and wondered if it is truly enforceable? Well, you're in luck today, because my guest is Attorney Keith Groomer. Keith is a commercial and real property litigator and the founder of Groomer Law. Keith is a UM law grad who has been married to Penny, the love of his life, for several decades and is the very proud father of three lovely daughters. He is also the person I recommend when somebody asks for a tough litigator and my firm cannot handle the case due to a conflict. I've personally seen Keith in action during a deposition, and it is a sight to behold. So, keith, welcome to Take it to the Board.
Speaker 2:Thank you very much for having me, donna. It is a great pleasure and professional honor to be here.
Speaker 1:Well, keith, I was excited about these topics. And let's start with defamation, because I can tell you, not a month goes by in my career and I've been doing this for a minute, as you well know where the topic of defamation doesn't come up. It comes up very, very frequently. So I want to start out with that topic and over the years I've heard from so many board members and managers who believe that they've been defamed and they want to know what they can do about it. So can you walk us through the various forms of defamation and explain the difference between libel and slander?
Speaker 2:So defamation is a catch all term, the catch all being libel meaning a written false statement, and slander being a spoken statement. So defamation, by definition, involves the publication, either by writing or by oral statement, of a false statement which the speaker or writer knows is false or is in reckless disregard of the truth and causes actual or presumed damages for the statement to be defamatory.
Speaker 1:So you know, I remember in law school, keith, a professor, said slander starts with an S. It's spoken and that's how I've always remembered it, because I know people get those terms confused. You talk about damages, so is it just? You hurt my feelings? You said something nasty about me and now you've hurt my feelings, so I have, I am damaged.
Speaker 2:This invites the next step in the law school discussion of libel or slander per se. And a per se. Defamation involves the presumption of irreparable injury, so damages are presumed. So if the false statement suggests that the target of the statement has a communicable disease, is engaged in some improper professional conduct, is engaged in some criminal act, that presumes damages, whereas just a generalized statement of wrongdoing without any basis in fact requires that the defamed individual, the victim, roof their actual damages. So really what it does. The distinction is it's easier if it's per se, because damages are presumed, whereas when it is not a per se, it is to use another law school term per quad. It is an element of proof creating a greater burden on the plaintiff.
Speaker 1:So the form most defamation takes in community associations, keith, is as follows you've got one or more people who are upset owners and they may put out either on the website or though you know typically what they do is they get everybody's emails. First thing I always ask is how did they get everybody's emails? Well, normally another board member or a prior manager has sent out a mass email and they have not BCC, and now everybody has their emails. So first takeaway for our listeners is please, when you're sending out mass emails, don't put everybody's email out there. Make sure you BCC, because once they're out there anybody can use those emails.
Speaker 1:But defamation typically takes this form somebody gets the emails and then they send out and they say I think this board is stealing or they're mismanaging our money, and it's normally financially related. Sometimes it's about rules enforcement. But let's say somebody does commit libel percent because it's written and they put out there that they believe the board president is or the manager stealing money. Now you said there's statutory damages. Is there a certain dollar amount, or is it a percentage, or how does that work?
Speaker 2:Well, it's presumed damages because it implies the statement in and of itself implies a criminal act. It's not statutory but it's presumed. So condo member X publishes a statement with mass distribution to all members accusing board member number two of theft of condo funds. That would be defamation, slander, technically libel if it's in an email per se, meaning damages are presumed. Now the board member does not have to go through the process of proving how this statement has embarrassed them in front of their world, their community, their associations, their bridge clubs, their golf groups.
Speaker 2:Any of those things where the practicality becomes important and this is something that everybody needs to think about on both sides of this is when you litigate these things and we're going to talk about defenses, but truth is always a defense. So all of a sudden, the victim is now having to justify their entire life, having to defend from discovery. Have you ever been involved in a lawsuit where you ever accused of theft before? Have you ever been a fiduciary in control of somebody else's money? So, as much as everyone can't wait to go to the courthouse and as litigious as we are as Americans, my first rule of thumb is, if you can stay out of the system, demand an apology, but unless you're prepared to go through the hell of litigation, expect it to occur.
Speaker 1:Well, let's dig into that a little bit. So how far back can somebody go? Let's say unit owner X has accused board member two of reach a fiduciary duty. Let's say it hasn't even gone as far as per se. They're not accusing this director of a crime, but they're hinting at it and they're throwing all sorts of things at the wall to see what sticks. They've hired their brother-in-law to fix the roof. There's money missing. Why are the reserves so low? I mean, they're just throwing everything out there.
Speaker 1:Are you telling me that if director Y says I'm going to bring a lawsuit against this person and my damages are what? Well, they've embarrassed me. Now it's hurt my chances for reelection on the board, although I have to tell you I'm not sure that that's a bad thing sometimes not getting reelected to the board. But are you telling me that during deposition defendants, council can go all the way back in terms, if it's a breach of fiduciary duty, to find out what other time in that director's life he or she served as a fiduciary? I mean, is everything fair game at that point to get?
Speaker 2:to the truth. Yes, so that's the pain of the litigation. It's not necessarily the correct or just process, but that is the process. So if one's a defendant, one can say I had a good faith basis for making that statement, and the fact that I didn't even know it, that I had my sixth sense, told me this person was a scoundrel. You know, yes, unfortunately, you know, life is not fair, and so there are ways to handle this, perhaps without resorting to the courts. But once you're in for a penny, you're in for a pound, so be prepared.
Speaker 1:And I guess if you have skeletons in your closet you may want to think twice before sitting for that deposition. What you're saying actually reminds me of a story that a former partner of mine told me years ago. But they were at a deposition and the standard questions being asked of this board president, you know. Have you ever been arrested? Yes, you ever been okay, all right. Could be a traffic violation. Have you ever been convicted? Yes, what was the charge? Murder that actually threw my former partner for a loop. Was not expecting that answer.
Speaker 2:Well, having had that type of truth exposed, then it's up to the board members attorney to say it's not relevant, it doesn't relate to the actual statement and therefore it would not be admissible in court. However, court proceedings, including depositions, are all public proceedings and so once the deposition is transcribed without some sort of restraint, that deposition transcript will make the rounds of the community and leading to further harassment and angst.
Speaker 1:Your point is well taken, because I've told clients for many, many times that you don't want to give more oxygen to this than it already has. So sometimes it's better off just to let somebody you know vent and people, especially when a hyperbole is involved, most people take it for what it is. Okay. They're not putting too much credence, particularly if it's anonymous. So sometimes we get the anonymous but the board or the manager knows who it is. That's a whole different realm and my standard response is if they don't have the will to put their name behind that statement, don't even bother responding. But these are not easy cases to pursue A claim for defamation. They're emotional. What are some other defenses, keith? Are there other defenses besides? This is the truth.
Speaker 2:Well, there is a qualified privilege, so if the speaker or author has a good faith, belief and justification. There is a privilege that the law recognizes. And then, to really complicate the matters, has the privilege been abused? Did they excessively publish the statement? So if you're privileged to make a statement, for example, we think this board members acting inappropriately, please investigate, but then to publish it to the local congregation or church, that's excessive and that would be an abuse of the privilege. So the publication, if privileged, the privilege cannot be abused. So there are so many nuances to these fights and not always the best fights to have. And they bring to use another legal term, one from law school surus Nothing but worries, nothing but worries.
Speaker 1:Well, who holds the privilege though? Keith Like, for instance, I could see a treasurer who is concerned. Let's say that the manager may be doing certain things and maybe the financial statements that are being provided to the board are not accurate. So I could see a treasurer who is reviewing these things having a privilege being able to say to fellow his or her fellow board members hey, I think maybe our manager is up to something here, but who else? What if it's just Mrs Smith in the community who sat in on a board meeting and maybe just has a hunch? Would Mrs Smith have a privilege, a limited privilege, to raise those concerns?
Speaker 2:Well, it's limited. The privilege itself is limited because, as you described the scenario, it was only on a hunch, whereas a treasurer, having reviewed books and records and financial statements, having an educated opinion and exercising the discretion to make that statement or expressing that concern, that is a reasonable good faith belief and a legitimate basis and performing one's obligations, as if I do share it as an officer, to bring that to the board's attention. And again, limited publication only to the board, not spreading it out to the entire community, gotcha.
Speaker 1:So I know board members have a little bit tougher path to follow when they try to go after somebody for defamation Because of the case law that's out there that says a board member may be seen as a limited purpose public figure. Can you talk to us a little bit about that?
Speaker 2:Your listeners, I'm certain, are familiar with public figures versus private figures. Certainly, we've all been in line at the grocery store and we've seen the National Enquirer talk about. Be it Hillary or anybody, it's a public figure, barry Gibb or you know any Beyonce, anybody Beyonce any public figure and so by being an officer you are a limited public figure.
Speaker 2:You are not a private person where the standards and the elements of proof are much lower. To say that about a limited purpose public figure, it must obviously relate to your performance, to the officer's performance in their respective role. But if and I'm sure the examples are legion if there's a golfing community and the allegation is that the board member cheats at golf, that's not related to the performance of the officer or director position, so that's not a defamation of a limited public figure. They would seek private figure status, which makes the burden of proof on the declarant much greater.
Speaker 1:Let's get back to what you said, though, about escalation. So board members are limited purpose public figures, which, by the way, I think they should learn and know when they get on the board, because a lot of them don't. I mean, we always say you need to have a thick skin to serve on the board, because you're just not going to make everybody happy. They also need to understand that they are in a different category than the regular unit owners. Ok, but let's say and I've seen this happen, keith where Somebody's making statements about this person, but now they copy that person's employer or they send it to their employer. If I'm hearing you correctly, you may want to respond to the fact that it's being directed, even if it's about what they're doing in their capacity, let's say, as a board officer, what if they send it to people that have nothing to do with the community?
Speaker 2:That would be excessive publication and that would be outside of the scope of the privilege and abusing the privilege and that would be an unprivileged communication and that would be the way to defeat the defense. But again, it is litigious to fight the scope of the privilege and to overcome it by showing excessive publication.
Speaker 1:I think the motivation for some board members and, by the way, we're going to get into unit owners who might be the target of defamation in a minute but for my board members, I think their motivation, I think it's dependent on the egregious nature of what's being said and I also think sometimes it's one person who's just made it their mission to make this board's life a hell and it's just the harassment. So I think that factors into it. But you said something a few minutes ago and I agree completely that litigation is hell, it's costly, it's time consuming. There's certainly a value to people's time. I think most people will agree that their time has a value to it. What are the other options? You mentioned an apology. Let's talk about that. Private, public. Are there other avenues for showing remorse where you know, outside the scope of litigation?
Speaker 2:Well, let's begin with the first part of that. There's always humankind, there's always going to be a malcontent, somebody who is a miserable mum-zer, somebody who wants to be a thorn in the side of some aspect of the community. The question becomes how to respond, and certainly board members have the ability to publish the truth. They can publish their annual financial statements, they can provide a report to the community, they can show their actions, they can invite members to come to a board meeting and air any questions, to quell any rumors or address any concerns, before jumping into litigation, seeking an apology.
Speaker 2:Some people will never say I was wrong, and we certainly live in that day and age today. Some people will admit, when shown the facts, that they spoke out of turn or were misinformed, or will blame it on somebody or something else. But if that is the satisfaction that the victim wishes, that would suffice. And at the end of the day, I don't know whether that victory will ever satisfy the sense of humiliation somebody may suffer and I'm not unsympathetic to that humiliation. I'm just concerned about the further humiliation when one walks into the process that we know is litigation.
Speaker 1:You know it's interesting because tensions are so high right now in community associations, in Florida in particular because of the new legislation, the new requirements regarding reserve funding, the high insurance premiums. So we have assessments going up astronomically and whenever you have that kind of economic pressure, what happens? People can snap. So when I'm looking at whether or not associations actually want to pursue litigation when it comes to defamation, the other thing that you need to think about is number one. It can be seen as David Goliath versus David situation. You know you've got the association going after this person who's expressing an opinion. The other thing is you don't want to be. The more litigation your association is subject to, the less likely you're going to be to be a favorable candidate for financing and perhaps even insurance. So something else to think about I always caution is pick your battles. There's litigation that you really need to pursue construction defects If your insurance claim is not being properly handled, but these type of things, that defamation. That's a lot more discretionary, would you agree? I would agree.
Speaker 2:And I don't think it's a budgeted item, I don't think it's something that I don't think it's a condominium expense. Sadly, it's a board member's expense. If the board member is sued for defamation, then you've got to look at and there is a statutory privilege as well. That's one where there is one, that there's a statute that protects board members statutory privilege. And that's one where there may be, because there's indemnity, there may be insurance coverage. But if one lets their temper or anger get the better of them and they've unleashed a tirade on a member unit owner that exceeds the scope of their redress, they're going to lose coverage and they'll have to pay for it themselves. It's dollars and economics of a not good fight.
Speaker 1:At a time when most associations can ill afford any unnecessary expense. You make a really good point. I was going to ask you because some of the people doing the defaming are board members. So one of the things that I've been doing more often over the last couple of years, keith, is drafting board member codes of conduct where we create a certain framework for behavior and decorum, and certainly defamation would fall within that board member code of conduct. I did want to ask you. There's a difference between an opinion and an accusation, so can simply framing one's thoughts as an opinion avoid a possible defamation act? So what if I said is my opinion that Keith may be, you know, dipping into the reserve fund? Can I just frame everything as my opinion, no matter how inflammatory my words are?
Speaker 2:Well, that's where there's an implied meaning to the statement. So the answer is no, you can't phrase it that way. Or, as we all know from today's environment, some people believe such and such, other people may say such and such, but for the declarant to make that kind of statement, that is the republication of a falsehood, of a false statement. So that's not a way of preemptively defending the statement.
Speaker 1:So if I said a lot of people think Keith is dipping into the reserve fund, but I put it out there in a mass email or I say it at a meeting, I'm not saying it, I'm saying a lot of people say this, I still have a problem.
Speaker 2:Yes, you do.
Speaker 1:Okay.
Speaker 2:Because, assuming that a lot of people are really saying that, which is a big assumption, that's republication in a different form and a different format. This is by email to every member or some form of definition. Yes, that's still actionable.
Speaker 1:So, listeners, you heard it here there's no magic words that are going to protect you if you put things out there and you know them to be false, or there's a high likelihood that they're false. But, keith, we've been doing this a long time. It matters what people say. Right, it should matter what people say, but we've seen this on the political stage, on the national stage, on the international stage. Does it surprise you that people who should know better just continue to say reckless things? Is that just human nature or Well, yes, it's human nature.
Speaker 2:Words have meaning, words can hurt and we are all members in a society, so we have responsibilities. And in a condominium, it's not just property ownership, it is a community and so there are responsibilities to other community members. And we've become inoculated, desensitized to the reality that condominium or homeowners association ownership is not just property ownership but it is buying into a community with community rights and responsibilities.
Speaker 1:I agree. I mean, I've said many times that it's a living together relationship so, unlike a dispute you may have at work or with a vendor in a community association setting, you have to go home and live next door to these people or live on the same floor or share an elevator or a gym or what have you. But now that we're having this conversation, do you think the concept of shame has fallen by the wayside? Because I think, like in our parents' generation, people would be ashamed to do some of these things. It seems to me like maybe the concept of shame is no longer powerful, maybe it's no longer relevant.
Speaker 2:Well, and so, donna, I will tell you that we have exceeded the scope of a legal opinion, but I will share with you. Yes, I concur that so much of the conduct that we see is shameless, and it's unfortunate, because people become detached from the sense that they have community. The broad, noble goals of having the common ownership and shared common areas gets lost in the heat of private battles, in the nastiness of today's society. So, yes, I would agree with you, it's shameless, but it's not a legal issue.
Speaker 1:No, it's not and hopefully. Listen, I always think the pendulum swings so far and then it swings back again. So maybe we're on the cusp of swinging back again in terms of our civility. But before we move on to non-competes From your lips to God's ear.
Speaker 2:We see that.
Speaker 1:There's a running theme throughout the podcast for the last year and a half where I asked my guests how they think artificial intelligence or AI is going to impact their work. So I wanted to ask you how do you think AI, and, in particular, deep fake technology, might impact defamation cases?
Speaker 2:Well, the short, correct answer is I don't know completely. My instincts as a litigator are we all have digital fingerprints. Yes, I've seen modified emails come into cases. Yes, I've seen modified documents come into cases, and, to use a word that if you're ever involved in litigation your listeners will hear, which is so common now in litigation you wanna see documents in their native format, meaning in their electronic form. So they would ask for your email in literally from your Outbox, your Gmail, your AOL, to really go retro your Yahoo accounts. So that has a digital fingerprint and it's encoded in the document. It's not visible to all but the most sophisticated of programmers. So an email if somebody denies the authenticity of a transmission. I didn't write that, somebody put my name on it. That's easy enough to figure out, because it can be the document we'll have. They call it metadata, the data hidden behind the actual visual document itself, and so I'm confident that facts matter and that there are always creative ways for people to try to beat the system, but the system quickly adjusts.
Speaker 1:So all of these topics. It's funny how intermingled they are. I recently interviewed Louis DeGioia of IC Real Time. His interview just came out this week and it was about video surveillance in communities. So I'm thinking you mentioned publication. Well, let's say, we have our video camera captures two people by the pool bad mouthing the manager or the management company or the board, and let's say it's per se defamation. That's not really publication, though, is it? They weren't intending to direct that outwards. They were having an internal conversation, just happened to be caught by the surveillance camera.
Speaker 2:You got two sides to that point there. One is whether it's a private conversation not intended for publication, and then the distribution of the video is the actual publication. So, to get very technical, the speakers at that conversation may not have had a right of privacy which was something else I thought we might talk about in terms of board members having been cast in a bad light or that sort of but Florida doesn't even recognize that there is no right of privacy or bad light protection. It is totally consumed within the claim of a defamation. So it's the publication of that video, it's the distribution. If somebody then publishes it, that's the person who publishes it. It would be as if I wrote you a personal letter and then you shared it with the person I was complaining about and, mind you, it has to be published to a third person.
Speaker 1:It's always nice when your legal opinion is backed up by an expert like you. The reason I asked is because this actually happened in one of my communities where the board president actually was reviewing tape for another purpose and caught this conversation where they were badmouthing her, accusing her of certain things and wanted to potentially pursue a defamation action. And my response was that's not. That wasn't publicized. That was just the private conversation between two people that you happen to see and hear through the use of this surveillance camera. So it's nice to have your backup, keith. Yeah, you have to. Yes, it wasn't published publicized.
Speaker 2:So if she had then passed that video on to third parties, she would be the one who published it. She didn't cause the defamation.
Speaker 1:Well, I don't think the president was going to pass it on to anybody. So there's the thing. But if one of those people had you know which put it out there I can see. I want to move on to our second topic, which I think it's going to be of significance to all of our managers who are out there listening. So many community association managers are bound by the terms of a non-compete clause in their employment agreements. It's just standard, and many associations also agree to non-solicitation clauses in their management agreements, where they're basically saying hey, you know, we will not hire any of your people. So let's start with the non-compete clause, because so many of these managers sign these clauses. What are the typical elements of a non-compete clause?
Speaker 2:Time, geography and information. So Florida is pretty sophisticated about this. There are some states that for example, I know there's a movement in California and New York to ban all non-competes. Florida has statutorily adopted a three tiered structure of non-competes and they go from the employee to the mid-level manager, to a principal or former owner. So the level of the and there's a high degree of sophistication in terms of the statutory structure. The greater the sophistication of the employee to manager or to an owner, the greater the length of time, geography and scope of the non-compete. Somebody with a CAM license cannot be prohibited from exercising their profession but they can be prohibited from exercising their profession with the former employer's customers for a period of time and that varies but there are time limits built into the statute depending upon the level of employee. So somebody who's your property manager at a property they're not going to be able to work for you directly without violating their non-compete and in turn the board, in soliciting that competition improper competition with the management association, exposes themselves to damages.
Speaker 1:Let's talk about the outer. Most time I've heard, I believe, is it two years. Is that about the maximum in terms of the non-compete?
Speaker 2:Well, it depends on the level. So if you are hiring a former owner or typically non-compete occur when somebody sells a business and it's a former owner who goes into competition, that statutorily can be up to five years, but at a mid-level a manager, that's two to three years.
Speaker 1:Okay, and that's what I was actually getting at talking about managers who move from one company to another, not talking about associations who want to retain, although we'll discuss that in a second. I'm a manager. When I got hired by this management company, I signed a non-compete. Now I want to move on to another management company. I'm on an upward trajectory. Maybe that's where my non-compete comes in, maybe two years, and I know people who've been bound by these terms.
Speaker 2:So then you get into the other aspects of scope, geography, distance, all those aspects. So sorry.
Speaker 1:Doesn't the employer have to prove that they've invested something in terms of training or technology that would justify them enforcing a non-compete against that employee?
Speaker 2:If written correctly, there is a presumption of irreparable injury to the employer. They've spent years developing a customer base. They have years in the business, they spent time marketing their company. That creates a presumption that the non-compete will be enforceable. But to use another fancy-schmancy legal term, there's in Florida something called the blue pencil rule, and while judges tend to enforce contracts as written, the blue pencil rule in this area of non-compete permits judges to rewrite contracts so they are more reasonable. So if you had a property manager that was barred from competing for two years in three counties Miami-Dade, broward and Palm Beach County the employee former manager could say I think this is too broad. Please, judge, use your blue pencil rule. Keep me out of Palm Beach that's where I was employed for the last five years but allow me to exercise my license in Broward County and Miami-Dade County. And that's the type of reasonableness test a court can exercise. But that is an expensive and huge burden and it's got to be worth it for the employee.
Speaker 1:Yeah, and that's something that many managers are not going to be able to pursue, but these clauses do impact their ability to earn a living if they're still living in a certain geographic area. What other arguments would you use if a manager hired you, keith, and said I can't earn a living under the terms of this non-compete. I think it's unreasonable. What other arguments are there?
Speaker 2:The most successful argument and the simplest argument is the employer breached first. The employer didn't pay me what was agreed to. For example, I earned a bonus. I didn't get it. I wasn't paid my vacation pay. I was ordered to do something that was against the rules of the association, and so the best defense to a non-compete is the employer breach, and that's really the most effective argument to turn around and argue the reasonableness as the place, time and the restrictions. That's a hard battle to overcome.
Speaker 1:You mentioned the differing jurisdictions. I know Florida is very supportive of non-competes, but more liberal jurisdictions like California, new York, are not. I think I read that the Biden administration is considering a ban on most non-competes, just got instinct. Do you think that's likely to be upheld in a court challenge?
Speaker 2:My crystal ball. This is not a legal opinion, again, but the short answer is no. You want to protect businesses. At the same time you want to protect employees.
Speaker 2:Florida is a right to work state, which basically means you can get fired for anything except for a discriminatory legal purpose. So Florida statutory scheme is designed to assist businesses and protecting its investment in developing its business. And I would assume that association managers spend considerable money recruiting and promoting their businesses in all sorts of different formats and so they're non-competes. You just can't go to work for me and then take my five biggest associations. Whether we agree with that or not, it's designed its underlying purpose.
Speaker 2:For us University of Miami common law theorists, it's holding number two, the underlying theory behind the holding. And the underlying theory is businesses need to be protected and encouraged to invest in developing their businesses and they can't be undercut by their employees. And as good as an association may believe its manager may be I don't say this with any disrespect to any manager, but they are all replaceable and somebody a new room may sleep clean the old room knows the corners, but nobody is worth buying that fight over. If an association knows the employee is bound to a non compete. It's asking for a needless budget expense, a new, a new line in the budget that you may love this manager, she may be, or he may be, that most gracious, most courteous to all the members, but are they all prepared for that additional assessment of attorney's fees and court costs at the end of the day?
Speaker 1:Well, this is where negotiation on the front end, when you're signing that management agreement, is crucial. So you know, a lot of these contracts key have a buyout. So if you fall in love with that particular manager which you fall out of love with that, with his or her management company, there's a, there's a price tag associated with that. So often it's just a question of hey, let's, you know, let's think about paying the price to have this manager remain, even though we're severing the relationship with the company. But a lot of people don't read the fine print. So you know, their feeling is the company wasn't doing a great job, but our on site was doing a great job, so they should give us, they should allow us, and that's where it gets. That's where attorneys like I come in and then if I can't solve it, then they go to you and you know, now we're off to the races if they can pay the liquidated damage up front, buy him out.
Speaker 2:But because whatever the attorney's fees will be, it will exceed that one time payment. If they really love that person that much, bite the bullet. But then remember the association is now made a huge investment in in a manager.
Speaker 1:So I said in the introduction, I've seen you at your finest in a deposition and it was. It was a sight to be held because, listen, it's like any other profession when you see somebody and they're in the zone and when, when they're doing their job, it gives a certain sense of calmness to the situation. And in my opinion, I'm not a litigator, I'm a corporate attorney, I'm a transactional attorney, but I've been told I might have been a litigator at some point. This is a very emotional. Litigation is very emotional. How do you what advice and how do you calm down either the plaintiff or the defendant, depending on you? Know the person being sued or the person who wants to sue? How do you handle them?
Speaker 2:it seems to me like you have to be part psychologist in addition to Litigator the first response is I'm the certificate on the wall it's attorney and counselor at law. So yes, there is a huge element of humanity involved in practice and handling the stress. For me, I swim a million yards a year. That's so the, and I have a couple of stents to show for it in my, in my widowmaker artery. So we all have different ways where stress appears, it is, and it's increasingly commonplace.
Speaker 2:In my practice I have what I want to call institutional clients. Clients litigate every day. For them it's just another lawsuit in the posse of battles, be it a bank, be it a business. They have litigation all around them and they have people who handle the litigation Individuals. I like to tell them I should only see them once in in my life professionally, because you don't want to be back in court, maybe for God forbid you know a divorce or for a will or For a home purchase, but you don't want to be seeing a litigator more than once in your life. And so, as much as I may like my clients, it's not going to be a lasting relationship professionally. I hope. I hope for their say. And so you want. Shame on you, for me twice. Shame on me.
Speaker 1:You don't want to make the same mistake twice do you have any cereal litigants that you represent on them? Listen, you're right, corporation this is doing business for them. It's routine. But for individuals you would think what once in the litigation Process would be enough. But do you have any cereal litigants you've represented?
Speaker 2:Oh no, exit stage left. No, no, because that's, that's not a healthy environment. It's not. At the end of the day, one has credibility with the court tribunal.
Speaker 1:It may be a legitimate claim, but cereal claimants, it's not healthy do you have a preference, keith, in terms of playing offense or defense?
Speaker 2:Oh, it's, it doesn't. It's six or one half dozen the other is it's dependent on the cause of action.
Speaker 2:Yeah, yeah, I know some people love the idea of being a plaintiff, the ability to speak first and speak last, but at the end of the day there are thousands and thousands of cases that go to trial. And one of the I guess, not so public acknowledgments of reality is that 99% of the cases we get resolved before trial. The courts couldn't handle trying every single lawsuit and there are all these sorts of pre trial diversion Programs, and one of which is called mediation, and mediators in many cases are former judges and they they know you let people vent and then you try to get to a deal, because to go all the way to trial is psychologically and financially exhausting.
Speaker 1:So most cases so we've had former judge Jeff Stridefeld on the show and he's a mediator and talking about the mediation process and how he likes to see that unfold. Do you remember your first trial?
Speaker 2:I do remember my first trial and I always remember my trials in front of judge Stridefeld.
Speaker 1:What was your first trial about?
Speaker 2:Oh, it was a contract dispute and kind of a kind older county court judge.
Speaker 1:Help me through the rules of evidence and you know that, that patience, yes, we talked a little bit about swimming to, because I wanted to ask you about not absorbing the toxicity of the litigation process once it's over right, or even while it's going on. I mean, I go out to board and membership meetings and those can often be unpleasant, to say the least. So I have my own little tips. But I'm interested. You mentioned swimming. What else do you do to shed the stress or the toxicity that is naturally part of the litigation process?
Speaker 2:Let me tell you what. Let me give you the reverse side. First and foremost, if you don't find a way to cope and this is true not just for lawyers but also for board members If you don't find a way to deal with the toxicity of this type of living conflict the situations are legion as to alcohol, drug or other dysfunctionality and abusive behavior, self-destructive behavior. So one must be able to compartmentalize the battles and set them aside. And early on in my career, across from the Miami Dade courthouse, there was a bar called Sally Russell's and I would see the same seven or eight lawyers at the bar every night and I'm like that's not how to deal with this. And so you have to find outlets.
Speaker 2:I was just reading last night the New York Times has a wonderful wellness column and they were talking about loneliness is as toxic as smoking. And so, first and foremost, find a community. Obviously, in an, in a condominium association, there is a community. You hope that you get along with your neighbors. Or find community either in your building, in your group or in a church or congregation or some other way. For me it's my swim group. We have a community. And for those of us now that the kids are grown, but for the longest time, when the kids were young, it was, it was the community of parents, and and that's you have to find community, first and foremost, and a way of releasing steam.
Speaker 1:After doing my episode with CJ on pickleball, I will tell you that pickleball seems to be a community that embraces one and all. Ok, you get a little bit of exercise, you can de-stress, and it is. It seems to be a community that all are welcome. So for anybody that doesn't have any of the other communities you talked about, maybe pickleball is the way to go.
Speaker 2:But, but entered gently because we are the pickleball. Injuries are pretty legion, that are of themselves.
Speaker 1:Well, we talked about that too, so you've been so generous with your time. Was there anything that I didn't ask you, Keith, that I should have asked you about our two types of causes of action defamation and non-competes?
Speaker 2:Well, that's, that's the best question for the end of a deposition. What should I have asked you?
Speaker 2:And I've asked it the unspoken reality, and I think I've tried to emphasize it. As well intentioned as the court system is, it is chaos theory, which, if you've ever read Jurassic Park, not seen the movie, chaos theory is. The natural order of affairs is chaos, and the more effort that man puts into building a system, the greater the likelihood it will descend back into chaos. And that's the court system, sadly, because think about a case. You've got lawyers, you've got court reporters, you've got the other side, you've got third party witnesses, the judge's secretary, the judge, the bailiff, seven jurors. You've got total strangers. That is, so many different personalities and roles. And then they rotate judges. You could end up with a judge who's unfamiliar with your case, or the judges in trial and they send it to a substitute judge. You're there is. It's a difficult path to a conclusion and it's not for the weak or timid. It's not for people who have happiness in their lives. Avoid it at all costs.
Speaker 1:And it's not a bluffing tactic either. So I have had some boards want to threaten litigation or even start to litigate with no real intention of staying the course. So I think your point is very important, keith, that it's not for the faint-hearted, it's costly and it is an option that you want to use when it truly is merited.
Speaker 2:Steven Kovie. The seven habits of highly effective people. Number one begin with the end in mind.
Speaker 1:Great advice. So, Keith, where can people find you?
Speaker 2:Oh, I'm Keith.
Speaker 1:I actually. They can find you in the, somewhere wherever you're swimming all the time. But other than that where can they find you?
Speaker 2:Kgrumorcom, or I have a website where I share Edward Curtis, an Indian portrait photographer.
Speaker 1:Yes, lovely portraiture. I've seen that. Keith, thanks so much for joining us today.
Speaker 2:Donna, thank you very much, it was a great pleasure.
Speaker 1:Thank you for joining us today. Don't forget to follow and rate us on your favorite podcast platform, or visit TicketToTheBoardcom for more ways to connect.