Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Technology Training Associates, Inc. v. Buccaneers L.P.

United States District Court, M.D. Florida, Tampa Division

September 30, 2019

TECHNOLOGY TRAINING ASSOCIATES, INC., et al., Plaintiffs,
v.
BUCCANEERS LIMITED PARTNERSHIP, Defendant.

          ORDER

          ANTHONY E. PORCELLI UNITED SPATES MAGISTRATE JUDGE.

         Once again, the Court confronts the issue of the propriety of the preliminary approval of the settlement of the class claims in this matter. Procedurally, however, the landscape has changed. Following reversal and remand of the Court's prior Order denying the Motion to Intervene, the Intervenors, or Cin-Q Plaintiffs, now appear in this action. By the instant motion, Cin-Q Plaintiffs seek a ruling by this Court decertifying the settlement class, vacating the preliminary approval order, and striking the class allegations (Doc. 131). Both Plaintiffs Technology Training Associates, Inc. and Larry E. Schwanke, D.C. d/b/a Back to Basiccs Family Chiropractic (collectively, “TTA Plaintiffs”) and Defendant Buccaneers Limited Partnership (“BLP”) respond in opposition (Docs. 141 & 148). For the reasons detailed below, Cin-Q Plaintiffs' Renewed Motion to Decertify Settlement Class, Vacate Preliminary Approval Order, and Strike Class Allegations (Doc. 131) is granted.

         I. Background

         A. Cin-Q Action

         In June 2013, Cin-Q Automobiles, Inc. (“Cin-Q”) initiated an action against BLP, alleging that BLP sent unsolicited advertisements via facsimile to Cin-Q in violation of the TCPA and its implementing regulations. See Cin-Q Automobiles, Inc. v. Buccaneers Ltd. P'ship, et al., No. 8:13-cv-1592-T-AEP (M.D. Fla. filed June 18, 2013) (“Cin-Q Action”) (Doc. 1). The faxed advertisements pertained to Tampa Bay Buccaneers tickets and were allegedly sent by or on behalf of BLP in 2009 and 2010. In January 2014, the Court allowed Cin-Q to file a Second Amended Class Action Complaint adding Medical & Chiropractic Clinic, Inc. (“M&C”) as another named plaintiff and putative class representative (collectively, “Cin-Q Plaintiffs”). Cin-Q Action, (Doc. 68). The Second Amended Class Action Complaint in the Cin-Q Action defined the putative class as follows:

All persons from July 1, 2009, to present who were sent facsimile advertisements offering group tickets or individual game tickets for the Tampa Bay Buccaneers games and which did not display the opt out language required by 47 C.F.R. 64.1200.

See Cin-Q Action, (Doc. 37, Ex. 1, at ¶25).

         During the proceedings in the Cin-Q Action, the parties engaged in extensive discovery, motion practice, and mediation conferences, with no resolution, over the course of three years. On March 25, 2016, after surviving BLP's motions to dismiss and for summary judgment, CinQ Plaintiffs filed their Motion for Class Certification. Cin-Q Action, (Doc. 207). BLP received extensions to file its response to the Motion for Class Certification, during which the parties continued to leave settlement discussions open. BLP then moved, on April 18, 2016, for a settlement conference before the Court or a designee as the parties had reached an impasse in their other settlement efforts, which Cin-Q Plaintiffs opposed. Cin-Q Action, (Docs. 215 & 219). Indeed, on May 2, 2016, at the request of Cin-Q Plaintiffs, the mediator declared an impasse. Cin-Q Action, (Doc. 218).

         BLP never filed a response to Cin-Q Plaintiffs' Motion for Class Certification. Instead, on May 12, 2016, BLP filed a Notice of Pendency of Related Action indicating that a related action was filed in the Circuit Court of the 13th Judicial Circuit in and for Hillsborough County, Florida, captioned Technology Training Associates, Inc. v. Buccaneers Limited Partnership, et al., No. 16-CA-004333 (Fla. Cir. Ct.) (filed May 6, 2016). Cin-Q Action, (Doc. 222).

         B. Technology Training I Action

         Namely, after the settlement discussions in the Cin-Q Action reached an impasse, and while the motion for class certification was still pending in the Cin-Q Action, TTA Plaintiffs contacted BLP regarding pursuit of the same class claims on behalf of the same purported class at issue in the Cin-Q Action. Subsequently, on May 6, 2016, TTA Plaintiffs initiated the aforementioned action against BLP in the Circuit Court of the 13th Judicial Circuit in and for Hillsborough County, Florida, alleging violations of the TCPA on behalf of the same class as the Cin-Q Action and regarding the same facsimile advertisements. See Technology Training Assocs., Inc. v. Buccaneers Ltd. P'ship, No. 16-CA-4333 (Fla. Cir. Ct.) (filed May 6, 2016) (“Technology Training I Action”) (Doc. 1). TTA Plaintiffs similarly sought damages and injunctive relief under the TCPA both on behalf of themselves and a proposed class of similarly situated persons. Upon becoming aware of the pending Technology Training I Action, Cin-Q Plaintiffs sought to enjoin BLP from proceeding in the Technology Training I Action and moved for an order immediately certifying the class in the Cin-Q Action rather than in any other action. Cin-Q Action, (Docs. 223 & 224). Cin-Q Plaintiffs also moved the state court on May 13, 2016, to allow them to intervene in, to dismiss, or to stay the Technology Training I Action. The state court set the motion for a hearing to occur on May 19, 2016, but, prior to the state court's consideration of Cin-Q Plaintiffs' motion, TTA Plaintiffs voluntarily dismissed the Technology Training I Action on May 18, 2016.

         Shortly thereafter, and given the existence of the claims by TTA Plaintiffs, the undersigned conducted a status conference in the Cin-Q Action on May 25, 2016 to address multiple motions filed by the parties in that action, including BLP's motion for settlement conference, Cin-Q Plaintiffs' motion to enjoin BLP from participating in a competing case, and BLP's motion for a determination that the mediation privilege had been waived. Cin-Q Action, (Docs. 215, 223, 231). After hearing oral argument regarding the motions and the status of the Technology Training I Action, the undersigned denied all three motions and directed Cin-Q Plaintiffs and BLP to conduct another mediation conference prior to BLP's deadline for filing a response to the motion for class certification in the Cin-Q Action on June 20, 2016. Cin-Q Action, (Doc. 233). During the hearing, the undersigned further directed that, if BLP entered into a settlement affecting class certification in the Cin-Q Action, BLP must notify Cin-Q Plaintiffs of the potential settlement in any separate action three days prior to the filing of any settlement or pleading relating to a settlement.

         C. Technology Training II Action

         Following dismissal of the Technology Training I Action, TTA Plaintiffs and BLP conducted two full days of mediation, which resulted in an agreement on a class settlement (the “Settlement”) on June 16, 2016. Upon reaching the Settlement with TTA Plaintiffs, BLP provided written notice to Cin-Q Plaintiffs of the Settlement in accordance with the undersigned's directive at the May 25, 2016 hearing. Subsequently, TTA Plaintiffs initiated the instant action (“Technology Training II Action” or “this action”) on June 20, 2016 (Doc. 1). TTA Plaintiffs filed their Class Action Complaint on behalf of themselves and a class of similarly situated individuals, alleging claims for violations of the TCPA, conversion, and invasion of privacy. Essentially, TTA Plaintiffs alleged that BLP violated the TCPA by sending unsolicited advertisements by facsimile in 2009 or 2010 offering tickets to Tampa Bay Buccaneers games, while failing to provide the proper opt-out notice required by the TCPA. In doing so, TTA Plaintiffs defined the similarly situated members of the class as:

All persons who, in 2009 or 2010, received one or more facsimile advertisements sent by or on behalf of BLP and offering tickets for Tampa Bay Buccaneers games.

(Doc. 1, at ¶17). Specifically excluded from the Settlement Class are the following Persons: (1) BLP and its respective parents, subsidiaries, divisions, affiliates, associated entities, business units, predecessors in interest, successors, successors in interest and representatives and each of their respective immediate family members; (2) Class Counsel; and (3) the judges who have presided over the Litigation and any related cases (Doc. 1, at ¶17). As for the relief requested, Plaintiffs sought statutory damages, treble damages, injunctive relief, costs, and attorney's fees.

         On the same day, Cin-Q Plaintiffs filed a Motion to Transfer Related Case under Local Rule 1.04(b), to Consolidate Cases, and Appoint Interim Class Counsel seeking to (1) transfer the Technology Training II Action to the undersigned pursuant to Local Rule 1.04(b); (2) to consolidate the Cin-Q Action with the Technology Training II Action following transfer; and (3) appoint the law firms of Addison & Howard, P.A. (“Addison”), and Anderson Wanca as interim co-lead counsel for the class (Doc. 8). Additionally, on that day, Cin-Q Plaintiffs filed an identical Motion to Transfer Related Case under Local Rule 1.04(b), to Consolidate Cases, and Appoint Interim Class Counsel in the Cin-Q Action seeking the same relief, while BLP filed a Motion for a Stay or, in the Alternative, an Extension of Time in the Cin-Q Action seeking a stay of the Cin-Q Action or, alternatively, an extension of time to respond to the CinQ Action motion for class certification. Cin-Q Action, (Docs. 236 & 237). Subsequently, on June 22, 2016, TTA Plaintiffs filed their Unopposed Motion for Preliminary Approval of Class Action Settlement and Notice to the Class (Doc. 18). Pursuant to Rule 23(e), Plaintiffs requested, on behalf of themselves and a proposed settlement class of similarly situated persons (the “Settlement Class”), that the Court enter an order (1) preliminarily approving the parties' proposed class action settlement agreement (the “Settlement Agreement”) that appoints Plaintiffs as class representatives and their attorneys as class counsel; (2) approving the form of Class Notice attached to the Settlement Agreement and its dissemination to the Settlement Class by U.S. mail, website, and publication; and (3) set dates for opt-outs, objections, and a fairness hearing (Doc. 18).

         Thereafter, on June 27, 2016, the undersigned conducted a status conference in the CinQ Action and the Technology Training II Action. After hearing oral argument regarding the motions for class certification, to transfer, and to stay, pending in both actions, the undersigned granted BLP's request to stay the Cin-Q Action, stayed the Cin-Q Action pending further order of the Court, and permitted the parties in both the Cin-Q Action and the Technology Training II Action to file a supplemental memorandum regarding the appropriateness of conducting an inquiry into the allegations by Cin-Q Plaintiffs regarding the occurrence of a “reverse auction” in the Technology Training II Action. In accordance with the Court's directive, the parties briefed the issue of a “reverse auction” and the appropriateness of considering the issue prior to or after preliminary approval of class certification and the Settlement (Docs. 29-31).

         On July 8, 2016, the deadline for the briefs, Cin-Q Plaintiffs additionally submitted their Motion to Intervene (Doc. 28). By the motion, Cin-Q Plaintiffs sought intervention as of right under Rule 24(a) and by permission under Rule 24(b). Though Cin-Q Plaintiffs received permission from the Court to submit a brief as to the issue of a reverse auction, Cin-Q Plaintiffs wanted to intervene to move to strike the class allegations, arguing that the TTA Plaintiffs were barred by the statute of limitations and, if necessary, to oppose the motion for preliminary or final approval. In support of intervention, Cin-Q Plaintiffs argued that their motion was timely, they possessed an interest related to the subject matter of the Technology Training II Action, the disposition of the Technology Training II Action might impede or impair their ability to protect their interests, and their interests were not adequately represented by the parties in the Technology Training II Action. Both TTA Plaintiffs and BLP opposed Cin-Q Plaintiffs' request to intervene (Docs. 37 & 39).

         After conducting further hearings on the matter, the Court issued its Order denying CinQ Plaintiffs' Motion to Transfer Related Case under Local Rule 1.04(b), to Consolidate Cases, and Appoint Interim Class Counsel; denying Cin-Q Plaintiffs' Motion to Intervene; and granting TTA Plaintiffs' Motion for Preliminary Approval of Class Action Settlement and Notice to the Class (Doc. 56). In doing so, the Court considered, at length, the issue of TTA Plaintiffs' standing to bring the Technology Training II Action given Cin-Q Plaintiffs' argument that the statute of limitations barred TTA Plaintiffs' claims (Doc. 56, at 13-21). As discussed more fully therein, the Court concluded that Cin-Q Plaintiffs' arguments regarding the lack of standing by TTA Plaintiffs due to the running of the statute of limitations and the inapplicability of equitable tolling was misplaced because BLP explicitly and unequivocally waived the statute of limitations affirmative defense, with such waiver surviving in the event of termination of the Settlement Agreement (Doc. 56, at 14-15; see Doc. 18, Ex. 1, at 36).

         After concluding that TTA Plaintiffs established standing, the Court then determined that TTA Plaintiffs established the requirements for class certification under Rule 23(a) (Doc. 56, at 21-29). Specifically, the Court determined that TTA Plaintiffs established numerosity, commonality, typicality, and adequacy of representation. In discussing the adequacy-of-representation prong, the Court concluded that TTA Plaintiffs adequately represented the interests of the class and did not harbor any interests antagonistic or in substantial conflict with those of the rest of the class (Doc. 56, at 24-29). With respect to the adequacy of TTA Plaintiffs' Counsel, Attorneys Phillip A. Bock (“Bock”), Jonathan B. Piper, and Daniel J. Cohen of the law firm Bock Law Firm, LLC d/b/a Bock, Hatch, Lewis & Oppenheim, LLC (“Bock Hatch”), the Court found Counsel adequate to represent the interests of the Settlement Class (Doc. 56, at 25-29). In making that finding, the Court addressed the issue that arose regarding whether a conflict existed with the representation of Bock Hatch based upon David M. Oppenheim (“Oppenheim”) previously working for Anderson Wanca on behalf of Cin-Q Plaintiffs in the Cin-Q Action and then switching firms to join Bock Hatch, the firm representing TTA Plaintiffs, while the Cin-Q Action remained pending (Doc. 56, at 25-29). After conducting an evidentiary hearing and allowing supplemental briefing on the issue, the Court concluded that no conflict existed and Oppenheim only owed a duty to the putative class, not to Cin-Q Plaintiffs - an issue thoroughly explored in Medical & Chiropractic Clinic, Inc., v. Oppenheim, et al., No. 8:16-cv-1477-T-36CPT (M.D. Fla. filed June 8, 2016) (“M&C Action”), as discussed below.

         Having satisfied the requirements of Rule 23(a), the analysis turned to whether TTA Plaintiffs could establish Rule 23(b)'s requirements of predominance of common issues and superiority of the class action to other means of litigation (Doc. 56, at 29-31). See Fed. R. Civ. P. 23(b)(3). Upon consideration, the Court concluded that the common issues outweighed and predominated over any individualized issues involved in the litigation and that proceeding as a class action provided the superior method to other methods available to fairly and efficiently adjudicate the controversy. Having determined that preliminary certification of the Settlement Class was warranted, the Court then turned to the issue of whether preliminary approval of the Settlement Agreement was similarly warranted (Doc. 56, at 31-37). Namely, the Court was tasked with determining whether the Settlement constituted a fair, adequate, and reasonable resolution and did not result from collusion between the parties (Doc. 56, at 31-32). Upon review of the terms, the Court found that the Settlement Agreement, which provided, among other things, a Settlement Fund up to $19.5 million and payments of up to $350 for the first facsimile and up to $565 total for up to five facsimiles to Settlement Class members who submitted claims, appeared fair, adequate, and reasonable solely for purposes of preliminary approval (Doc. 56, at 33-34). Accordingly, the Court granted TTA Plaintiffs' Motion for Preliminary Approval of Class Action Settlement and Notice to the Class and set forth the terms of the preliminary certification of the Settlement Class, including the time for disseminating notice to Settlement Class members and the date and time for the fairness hearing (Doc. 56, at 37-39, 42-52).[1]

         In addition to granting preliminary approval of the Settlement Class, the Court denied Cin-Q Plaintiffs' Motion to Transfer Related Case under Local Rule 1.04(b), to Consolidate Cases, and Appoint Interim Class Counsel and denied Cin-Q Plaintiffs' Motion to Intervene (Doc. 56, at 39-42). As discussed, the Court did not need to transfer the action because the undersigned received the case through random assignment and then by consent to the undersigned's jurisdiction by TTA Plaintiffs and BLP (Doc. 56, at 39). Further, given the preliminary approval of the Settlement and appointment of TTA Plaintiffs' Counsel as Class Counsel, the considerations did not favor consolidation of the Technology Training II Action and the Cin-Q Action and obviated the need for appointment of Addison and Anderson Wanca (Doc. 56, at 39-40).

         Finally, in considering Cin-Q Plaintiffs' Motion to Intervene, the Court denied Cin-Q Plaintiffs' request both for intervention as of right, pursuant to Rule 24(a), and by permission, pursuant to Rule 24(b) (Doc. 56, at 40-42). The Court concluded that Cin-Q Plaintiffs could assert their objections in the normal course of the proceedings, as anticipated by Rule 23, and that a potential incentive award to Cin-Q Plaintiffs and attorneys' fees for their counsel were not foreclosed, thereby negating their contention regarding the necessity for intervention as of right. Likewise, the Court concluded that permissive intervention was not appropriate since Cin-Q Plaintiffs could still assert their claims and defenses in this action at the appropriate time or could opt out of the class and continue to pursue their claims on an individual basis in the Cin-Q Action.

         Given the rulings in the Technology Training II Action, the Court denied all pending motions in the Cin-Q Action, including Cin-Q Plaintiffs' Motion for Class Certification. CinQ Action, (Docs. 207, 236, 241, 250). The Court also stayed the Cin-Q Action pending further order of the Court. Currently, the Cin-Q Action remains stayed pending the undersigned's ruling on the instant motion in this action.

         D. M&C Action

         Meanwhile, based on the initiation of the Technology Training II Action, M&C filed an action against Oppenheim and Bock Hatch, in the Circuit Court of the 13th Judicial Circuit in and for Hillsborough County, Florida, on June 1, 2016, which Oppenheim and Bock Hatch then removed to federal court a week later. See M&C Action, (Docs. 1 & 2). M&C asserted claims for (1) breach of fiduciary duty against Oppenheim and Bock Hatch and (2) aiding and abetting breach of fiduciary duty against Bock Hatch. M&C Action, (Doc. 2). Essentially, M&C claimed that it had an interest in being named as class representative and obtaining class certification for the proposed class after vigorously litigating the Cin-Q Action for the past three years through fact discovery, class discovery, depositions, expert discovery, dispositive motions, and mediation conferences. M&C Action, (Doc. 2, at ¶¶14-15). M&C further alleged that, during the course of the proceedings in the Cin-Q Action through his resignation from Anderson Wanca on April 8, 2016, Oppenheim represented M&C as its attorney in the CinQ Action, billing at least 80 hours on the matter; intimately involving himself in the preparation, strategy, and participation in the two mediation conferences conducted in the Cin-Q Action; completing multiple settlement negotiations in the Cin-Q Action; and operating as the primary point of contact for Cin-Q Plaintiffs with regard to the mediation conferences in the Cin-Q Action. M&C Action, (Doc. 2, at ¶¶17-23). According to M&C, Oppenheim became familiar with and received access to the case strategy, discovery, analysis, and settlement strategy of Cin-Q Plaintiffs, the purported class, and BLP, and was granted full authority to settle on behalf of Cin-Q Plaintiffs. M&C Action, (Doc. 2, at ¶¶24-25). M&C alleged that Oppenheim prepared and submitted the mediation statements for both mediation conferences held in the Cin-Q Action, represented Cin-Q Plaintiffs at both mediation conferences, and held discussions with Michele Zakrewski, President of M&C, both before and after the mediation conferences. M&C Action, (Doc. 2, at ¶¶26-28, 30-33, 35). Even though the parties to the Cin-Q Action did not reach a resolution during either of the first two mediation conferences, M&C alleged that Oppenheim remained involved in the matter through continued correspondence with the second mediator and other counsel for Cin-Q Plaintiffs and continued to receive access to purportedly privileged and confidential information regarding Cin-Q Plaintiffs and the putative class. M&C Action, (Doc. 2, at ¶¶37-40). As a result of his involvement in the Cin-Q Action, M&C asserted that Oppenheim acted as M&C's attorney and thus owed it ethical and fiduciary duties. M&C Action, (Doc. 2, at ¶¶41-47).

         In April 2016, shortly after the filing of the Motion for Class Certification Motion in the Cin-Q Action, Oppenheim resigned from Anderson Wanca and joined Bock Hatch. M&C Action, (Doc. 2, at ¶¶48-50). Shortly thereafter, in May 2016, Bock Hatch filed the Technology Training I Action and then, in June 2016, filed the Technology Training II Action asserting claims on behalf of the same putative class members identified in the Cin-Q Action, as discussed more fully above. See M&C Action, (Doc 2, at ¶¶57-58). Based on the foregoing, M&C alleged a claim for breach of fiduciary duty against Oppenheim, which it alleged was imputed to Bock Hatch, and a claim for aiding and abetting breach of fiduciary duty against Bock Hatch. M&C Action, (Doc. 2, at ¶¶85-105). Namely, M&C alleged that Oppenheim owed M&C an undivided duty of loyalty to represent M&C's interests and a duty not to represent a client with interests materially adverse to M&C, with such duties continuing after his resignation from Anderson Wanca, which were then imputed to Bock Hatch. M&C Action, (Doc. 2, at ¶¶87-94). Further, M&C alleged that Bock Hatch aided and abetted the breach of fiduciary duty because Bock Hatch knew about Oppenheim's representation of M&C in the Cin-Q Action, and the attendant duties attached to such representation, and substantially assisted Oppenheim's breach of those duties. M&C Action, (Doc. 2, at ¶¶99-102).

         Following the filing of the Complaint and removal in the M&C Action, M&C filed its Amended Motion for Entry of Temporary Restraining Order and Preliminary Injunction seeking to enjoin Oppenheim and Bock Hatch from (1) representing any entity in a case alleging class-wide allegations substantially related to the Cin-Q Action; (2) representing TTA Plaintiffs in any actions substantially related to the Cin-Q Action; (3) engaging in settlement negotiations with BLP, or reaching a settlement, in any matter substantially related to the Cin-Q Action; and (4) using, disclosing, or relying upon confidential information Oppenheim gained while representing M&C, including information protected by the attorney-client privilege or mediation privilege. M&C Action, (Doc. 5). After conducting an evidentiary hearing in July 2016 regarding the request for a preliminary injunction, United States District Judge Charlene E. Honeywell (“Judge Honeywell”) denied M&C's motion for preliminary injunction in October 2016. M&C Action, (Doc. 71). In doing so, Judge Honeywell determined that M&C could not establish a substantial likelihood of success on the merits of either its breach of fiduciary duty claim or its aiding and abetting claim, could not establish a threat of irreparable harm, could not establish that any threatened injury to M&C outweighed the harm an injunction would cause Oppenheim or Bock Hatch, and could not establish that an injunction would serve the public interest. M&C Action, (Doc. 71, at 5-15). Namely, Judge Honeywell concluded that Oppenheim had a fiduciary duty to the entire class, including M&C, but it was questionable whether M&C could demonstrate the existence of a special fiduciary duty to M&C different from the fiduciary duty owed to all class members. M&C Action, (Doc. 71, at 7). Judge Honeywell further found, since neither Oppenheim nor Bock Hatch were pursuing relief for the class that was “materially adverse” to the interests of the other class members, including M&C, that M&C was unlikely to establish a breach of any duty owed by Oppenheim. M&C Action, (Doc. 71, at 9). Then, Judge Honeywell determined that M&C failed to demonstrate irreparable harm because, among other things, any issue related to an alleged “reverse auction” could be remedied through the normal course of litigation, namely, the approval process of the Settlement. M&C Action, (Doc. 71, at 14). Given those findings, Judge Honeywell determined that the balance of harm weighed against entry of an injunction, since M&C demonstrated no irreparable harm it would suffer, and that entry of an injunction would not serve the public interest as no materially adverse interest existed among the parties in the M&C Action, the CinQ Action, and the Technology Training II Action. M&C Action, (Doc. 71, at 15).

         Notably, though, given the issues raised during the pursuit of the preliminary injunction in the M&C Action, the undersigned conducted an independent evidentiary hearing in the Technology Training II Action in October 2016 to also consider any potential conflict of interest related to Oppenheim's participation in the Cin-Q Action on behalf of Cin-Q Plaintiffs and the proposed class given his subsequent departure from employment with Anderson Wanca to employment with Bock Hatch, currently representing Plaintiffs in the Technology Training II Action. Both Oppenheim and Bock provided testimony during the hearing, while Cin-Q Plaintiffs were not permitted to participate in the evidentiary hearing in the Technology Training II Action.

         Subsequently, in the M&C Action, M&C sought partial summary judgment on its claims solely as to the issue of liability, and Oppenheim and Bock Hatch sought summary judgment on M&C's claims in full. M&C Action, (Docs. 142 & 144). Upon consideration, Judge Honeywell denied M&C's Motion for Partial Summary Judgment and granted Oppenheim and Bock Hatch's Motion for Summary Judgment, finding that M&C could not establish the existence of a fiduciary duty owed to it individually, could not establish that Oppenheim or Bock Hatch breached any fiduciary duty owed to M&C to the extent that one existed, and could not establish any damages suffered as a result of the purported breach, and, further, given the lack of a breach of fiduciary duty on the part of Oppenheim, M&C could not establish a claim for aiding and abetting such breach by Bock Hatch. M&C Action, (Doc. 221). With respect to the alleged fiduciary duty, Judge Honeywell remained unpersuaded that any fiduciary duty existed with respect to M&C individually or that the Florida Rules of Professional Conduct provided the standard of care in a breach of fiduciary duty case involving class action litigation. M&C Action, (Doc. 221, at 13-20). Even assuming, arguendo, that a fiduciary duty existed to M&C individually under the Florida Rules of Professional Conduct, Judge Honeywell concluded that M&C could not establish that any actions taken by Oppenheim or Bock Hatch constituted a breach because M&C's interests were not materially adverse[2] to that of TTA Plaintiffs' interests for purposes of the Florida Rules and Oppenheim did not disclose any confidential or mediation-privileged information[3] related to M&C individually with Bock Hatch. M&C Action, (Doc. 221, at 20-24). Finally, Judge Honeywell determined that M&C suffered no damages as a result of the purported breach of the fiduciary duty because the decision to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.