Renzo Downey – February 10, 2022

‘Go back to your folks that are paying you to buy those $2,000 suits and beg their forgiveness and give them some of their money back.’

Legislation to strengthen consumer data privacy in Florida is moving again in the Legislature as lawmakers and businesses look to settle the differences that torpedoed the bill last year.

The proposal (SB 1864HB 9) would give consumers the right to determine what information has been collected, delete or correct the data, and opt-out of the sale or sharing of that personal information. But the version filed by Sarasota Republican Rep. Fiona McFarland, which the House Commerce Committee approved unanimously on Thursday, has drawn resistance from business interests who fear complying with the measure will be financially crippling.

McFarland told the committee there are innocuous and beneficial uses for someone’s data, such as phone notifications about a person’s commute to work.

“This bill does not impact that. But when our data is put up for sale to the highest bidder for digital advertising or manipulation, I want to have a say in who can buy that information,” McFarland said.

Florida TaxWatch estimates the 31-page legislation would saddle companies with upward of $33.8 billion in startup and compliance costs. However, McFarland and the bill’s proponents argue the measures are necessary, adding that it would put Florida at the forefront of the nation’s data privacy protections, which have been passed in states like California and Virginia.

“You have the privilege of my personal information, and I hate to tell you, but I value my privacy and I value the privacy of Floridians, so in this case, I’m okay with businesses to have to incur a compliance cost,” McFarland said.

A letter sent to the House Commerce Committee from 13 organizations — including TaxWatch, Associated Industries of Florida and the Florida Retail Federation — previewed the opposition the lobbyists mounted during the committee meeting.

The letter says that businesses are already struggling under the weight of COVID-19’s effects, an increase in the minimum wage, hyperinflation, and a broken supply chain. Florida Retail Federation President and CEO Scott Shalley said COVID-19 recovery is still underway.

“I would like to keep that up, and I would like to see continued progress and not see this burden place where we’ve seen, in the other states, the cost that has come with it and the lawsuits that have come with it,” Shalley said.

Florida Justice Reform Institute President William Large said he feared the legislation would devolve into plaintiffs purposely asking companies to delete or not share their information in the hopes of receiving the damages that could total up to $750 under the bill.

“But the real bad actor is going to be the attorney, who’s going to get their fees paid because this is a one-way attorney fees provision only for the consumer,” Large said.

While critics agreed the House proposal has improved since last year, they feared any business that collects the information of 50,000 or more consumers and uses it for targeted advertising and more could be subject to the bill’s controls.

Gainesville Republican Rep. Chuck Clemons joked it was “Haberdasher Day” with the abundance of $2,000 suits in the committee room before leveling a more serious criticism against the business lobbyists.

“I heard a lot of specious arguments against this bill today, and shame on you, shame on you, to come up in front of the dais and try to feed us some of those arguments,” Clemons said.

During the public testimony portion of the meeting, Clemons had drilled Alfred Saikali, who leads Shook, Hardy and Bacon’s privacy practice, over Saikali’s different interpretation of the bill’s exceptions. Saikali said the bill’s language that includes any business that “buys, receives, sells, or shares” personal information also includes any business that collects that information. Clemons and committee staff disagreed.

“Go back to your folks that are paying you to buy those $2,000 suits and beg their forgiveness and give them some of their money back. That’s crazy,” Clemons continued.

While businesses and the Legislature continue to fight over the more than six-page list of who and what actions are exempt from the data privacy protections, the House is standing firm against the Senate, which wants to prevent individuals from suing businesses individually.

The Senate bill, carried by Fleming Island Republican Sen. Jennifer Bradley, would tap the Florida Attorney General as the only one who can sue companies. Business lobbyists thanked McFarland for removing the opportunity for class action lawsuits, but the “private cause of action” would still allow frivolous lawsuits in their eyes.

Disputes over the House’s and Senate’s approaches helped kill last year’s data privacy bill.

Gov. Ron DeSantis began Florida’s push for increased consumer data privacy as he launched attacks against Big Tech in the wake of the 2020 election. During his State of the State address last month, DeSantis reiterated his support, but where he stands on the lawsuit issue is unclear.

House Speaker Chris Sprowls has remained firm that the private cause of action is necessary.

“Some of the ideas that were floating out there, in our view, didn’t have the kind of teeth to seem that we were really doing something for Floridians,” Sprowls told reporters last month of last year’s Senate proposal.

After Thursday’s meeting, McFarland told Florida Politics the definitions and enforcement mechanisms are important.

“I have no interest in passing a bill for symbology sake,” McFarland said. “I want to pass a bill that actually protects Floridians.”

https://floridapolitics.com/archives/495469-data-privacy-measure-emerges-from-contentious-first-hearing/ 

Renzo Downey – January 20, 2022

The current threshold hasn’t been adjusted since 2010.

A proposal to raise the cap on claims against local governments before the Legislature must intervene passed its first committee hurdle on Wednesday.

The measure (HB 985), carried by Lithia Republican Rep. Mike Beltran, would raise from $200,000 to $1 million the value of claims before sovereign immunity applies. The bill passed the House Civil Justice & Property Rights Subcommittee by a 16-1 vote.

Sovereign immunity is a principle stating that the government, including a local government, cannot be sued without its consent. The principle dates back to British common law.

Proponents hope it will reduce the number of times Floridians would have to come to lawmakers to plead their case to receive reparations for transgressions committed against them by the government.

“Every claims bill that’s filed — or that anyone approaches a member with for that matter — is one of our constituents that’s asking us to address this,” Beltran said. “They’re saying that the cap was not adequate compensation.”

Since 2010, Florida law has capped normal claims against a government entity at $200,000 per person and $300,000 per accident. Additional damages can be awarded through claims bills in the Legislature.

Beltran’s bill would scrap that outline and place the cap at $1 million per person, a value he says matches with inflation since legislation limiting sovereign immunity was first passed in the 1970s. The bill would further allow the $1 million mark to be adjusted annually with the consumer price index, or CPI.

The panel also approved an amendment halving the time jurisdictions have to pay or deny claims from 6 months to 90 days. Most people know how they’re going to approach a lawsuit within 90 days, Beltran contended.

Orlando Democratic Rep. Anna Eskamani asked Beltran, a lawyer and Vice-Chair of the committee, whether smaller jurisdictions would have the dollar amount. Beltran said he has never seen a government entity not have $1 million in insurance to cover claims.

However, Beltran’s comments didn’t assuage the concerns of groups like the Florida Association of Counties, the Florida League of Cities, and the Florida Justice Reform Institute. Representatives from Miami-Dade, Orange and Broward counties also opposed the bill, as did one from Parkland.

A 2020 ruling prevented the parents of several victims of the 2018 mass murder at Marjory Stoneman Douglas High School in Parkland from receiving a dollar amount larger than $200,000 without seeking legislative approval. An existing claims bill (SB 84), carried by Sarasota Republican Sen. Joe Gruters, would authorize a $25 million claim on behalf of the Broward County School Board for its negligence in the shooting.

While several members had reservations, all but Davie Democratic Rep. Mike Gottleib voted in favor of the measure.

Gainesville Democratic Rep. Yvonne Hayes Hinson told the committee she would vote yes now but was hoping to see the bill resolve to a more reasonable amount, calling the current increase to $1 million significant for one fell swoop. Windermere Democratic Rep. Geraldine Thompson took Hinson’s position, but added that she has sponsored claims bills in the past, including one that took 9 years, and noted they are difficult to get through the legislative system.

Miami Beach Democratic Rep. Mike Grieco also voiced support for the measure, adding the House should “absolutely” consider the opportunity.

“This isn’t just about slips and falls and negligence,” Grieco said. “There’s a criminal justice piece of this when we’re talking about wrongful arrests, police brutality, civil rights violations.”

Gruters also is carrying a bill similar to Beltran’s. That measure (SB 974) has not been scheduled for a committee hearing. Beltran’s measure next heads to the House Appropriations Committee, its second of three committee stops.

Both versions would take effect July 1.

https://floridapolitics.com/archives/488231-bill-raising-claims-cap-before-state-intervention-to-1-million-advances-in-the-house/ 

Renzo Downey – December 7, 2021

The Legislature, not so much.

Despite the Legislature landing on a watch list of “Judicial Hellholes,” the Florida Justice Reform Institute says Florida has improved its standing for the third year in a row.

No Florida jurisdictions appeared on the American Tort Reform Association’s ranking of eight “Judicial Hellholes” in the nation. However, the group’s annual report, the latest installment of which was released Tuesday, flagged the Florida Legislature on its watchlist, citing a history of abusive litigation in the state.

“Despite all the work done by the Florida Supreme Court and Gov. Ron DeSantis to mitigate lawsuit abuse, much-needed reforms continue to stall in the Florida Legislature,” according to the report. “Without these reforms, the trial bar is still able to capitalize, and they know it. Issues that need to be addressed include inflated medical damages, bad faith reform, litigation financing and attorneys’ fees multipliers.”

Florida ranked as the worst “Hellhole” in the nation as recently as the group’s 2018 report. It fell to number two in 2019. It fell off the ranking in 2020, landing instead on the watch list. The state as a whole, minus the Legislature, fell off the list in this year’s report.

William Large, president of the Florida Justice Reform Institute, praised DeSantis for his actions since he took office nearly three years ago, in January 2019.

“From ensuring businesses could reopen after the COVID-19 shutdown without fear of an avalanche of lawsuits, to combatting frivolous property insurance litigation, to the downstream effects of his judicial appointments, Gov. DeSantis continues to pull Florida out of the judicial hellhole we were in not so long ago,” Large said.

The American Tort Reform Association reported lawmakers have failed for multiple years to enact reforms related to phantom damages, bad faith claims and more. Among the nearly 3,000 bills that were filed but never passed last Session was legislation that would have established a “reckless disregard” standard for bad faith claims against insurers. The measure, carried by St. Petersburg Republican Jeff Brandes, never received a hearing and didn’t attract a House counterpart.

“Plaintiffs’ lawyers in Florida have long abused what are known as ‘letters of protection’ to inflate medical expenses for the purpose of lawsuits,” said the group’s president, Tiger Joyce. “The use of inflated billed amounts only increases the overall cost of the judicial system, spreading the financial burden on the backs of every American through higher costs on goods and services.”

Unlike the Legislature, the Supreme Court was named a “Point of Light” in the Judicial Hellholes report for helping to create a more fair and balanced civil justice system.

Large also credited the Court for doing its part by adopting a federal summary judgment standard, improving fairness and efficiency by saving the work of juries for when “real facts” are “in dispute.” Additionally, the Court ruled Florida’s “apex doctrine” extended to high-ranking corporate officers, protecting them from depositions and discovery he said were meant to harass and force meritless settlements.

 “By using their exclusive rulemaking authority to address entrenched, systemic problems, the Florida Supreme Court is remaking our judicial system for the better,” Large said. “And we have Governor DeSantis to thank for it.”

California earned the worst spot on the list of “Judicial Hellholes,” followed by New York. The Georgia Supreme Court, Philadelphia and Pennsylvania courts, and major Illinois counties’ courts rounded out the top 5. Louisiana, St. Louis and South Carolina finished off the Hellholes list.

https://floridapolitics.com/archives/478384-ron-desantis-florida-supreme-court-earn-praise-in-judicial-hellholes-report/ 

 Christine Jordan Sexton – October 25, 2021

Vaccine mandates wouldn’t exclude health care providers from extended COVID-19 liability protections.

Health care providers could get COVID-19 liability protections extended through December 2023 under a bill Sen. Jeff Brandes filed Monday.

Immediate attempts to contact Brandes Monday were unsuccessful.

Brandes’s bill does not change the underlying law — or exclude businesses with vaccine mandates from the protections, as Gov. Ron DeSantis said last week should happen.

Health care associations and lobbyists, meanwhile, were pleased with Brandes’ legislation.

“The pandemic has brought on financial and workforce challenges for nursing centers and assisted living communities and these extended protections will ensure providers can maintain the resources they need to stay focused on resident safety and deliver care in what is still a challenging environment,” Florida Health Care Association Communications Director Kristen Knapp said in a statement to Florida Politics.

Jacksonville health care lawyer and lobbyist Christopher Nuland agrees.

The physicians he represents were hopeful the pandemic would have been over by now and that extending liability protections wouldn’t be necessary, he said.

“We thank Senator Brandes for acknowledging that we are all still in the fight and need these protections to continue,” Nuland said.

The Centers for Disease Control and Prevention said there were 2,006 COVID-19 infections in Florida last Thursday, the latest available data. And the Florida Department of Health reported on Friday that 58,803 people have died from COVID-19 since the start of the pandemic in spring 2020.

The number of deaths in Florida has increased by a little more than 50% since July 30 when the delta variant started spreading across the nation and the state.

Florida lawmakers in 2021 agreed to pass legislation filed by Brandes that provides Florida businesses protections from COVID-19-related lawsuits. SB 72 contained provisions applying to general liability claims filed against businesses, as well as extending protections to health care providers from COVID-19-related claims alleging medical malpractice or violations of nursing home residents’ rights.

DeSantis signed the bill into law last March. It requires plaintiffs who file medical malpractice claims or claims against nursing homes to prove health care providers’ actions were grossly negligent. If not, health care providers who substantially comply with authoritative or applicable government-issued health standards or guidance related to COVID-19 have immunity. At the insistence of House Speaker Chris Sprowls, the health care liability protections would remain in effect for just one year. That means they expire March 29, 2022.

Florida Justice Reform Institute President William Large started pushing for an extension last month, telling Florida Politics at the time, “it needs to be extended until the crisis abates.”

“With developments concerning the delta variant, it is now necessary to extend the protections,” Large said. His group is dedicated to protecting businesses from lawsuits.

https://floridapolitics.com/archives/467491-jeff-brandes-bill-would-extend-covid-19-liability-protections-for-health-care-providers/ 

Christine Jordan Sexton – September 16, 2021

Sprowls already tackled DNA privacy, but he’s not done.

Florida lawmakers appear poised to wage another bruising battle over data privacy in 2022, as House Speaker Chris Sprowls vows to push through a measure that would put pressure on tech companies when it comes to sharing valuable information they collect on customers.

Earlier this year, Republican-friendly interest groups lined up in opposition to a Sprowls-pushed bill, but the Palm Harbor Republican isn’t walking away from the fight. Sprowls has been in some of these battles before, like in 2020 when he pushed through a measure dealing with how life insurance companies use DNA information, and he is used to winning.

The goal, the Speaker says, is to ensure Florida’s laws aren’t lagging when it comes to consumer privacy and to enact a new policy to “get ahead of the game.”

“I am very interested — I think the House is very interested — in data privacy and making sure we get it right so that we are protecting people’s data and making sure that they are empowered on how their data is used and monetized,” Sprowls told Florida Politics.

After working to pass a DNA privacy law for three years, Sprowls now wants the Florida Legislature to pass a comprehensive data privacy bill that gives Florida internet users more control over the data companies aggregate on them and what can be done with the data. Sprowls also wants to empower consumers to sue companies that violate the law.

“This is the new frontier of privacy. Before, a lot of our laws about privacy dealt with the papers in our briefcase,” the Speaker said. “Well, that’s not the real risk of privacy nowadays. It’s the data on our phone. It’s the monetizing of our genetic information without our permission.”

There is no federal law governing internet users’ privacy information. The Federal Trade Commission first recommended Congress pass baseline protections in 2000. Included in the FTC report were recommendations that companies be required to provide customers a choice as to whether they agree information can be shared, as well as provide consumers reasonable access to the information, including the ability to correct inaccuracies or delete information.

While Congress has not acted, California, Virginia and Illinois have enacted privacy laws. Sprowls last Session unsuccessfully championed legislation that would have given Florida internet users more control over their personal data, much along the lines of what the FTC first recommended 20 years ago.

Sprowls’ bill also would have allowed Florida consumers to sue companies that violated their rights.

But Florida Justice Reform Institute President William Large sees things differently.

Large’s group will lobby against any provision in any bill that would create a new opportunity for people to sue Florida businesses. He also lobbies for business-friendly litigation changes.

“I would coin this the ‘jobs program for class-action plaintiff’s attorneys,’” Large said. He underscores his point with a recent legal analysis of the impact of California’s data privacy law, which also has a private cause of action for consumers whose rights have been violated.

Conducted by the insurance defense law firm Akin Gump Strauss Hauer & Feld, the analysis shows that 76 class-action lawsuits had been filed in California state and federal courts in 2020.

This isn’t Sprowls’ first tangle with the insurance lobbyist over privacy issues, though.

The lawyer and former prosecutor first took on the life insurance industry in 2018 and 2019 when behind the scenes, he pushed for bills that would have prevented life insurance, disability, and long-term care insurance carriers from using DNA information to price policies or to cancel policies based on data from 23andMe and AncestryDNA.

Sprowls didn’t sponsor the bill either year, though; Rep Jason Brodeur sponsored the proposal in 2018, and Rep. Jayer Williamson filed the bill in 2019.

Sprowls filed the DNA privacy bill in 2020 and subsequently rolled over the American Council of Life Insurers and other industry lobbyists who warned Florida would be the only state in the nation to ban companies from using the DNA data. If passed, opponents argued, it would increase the cost of insurance for healthy consumers. Insurers, proponents argued, would stop writing policies in Florida.

The ACLI declined to comment for this story. But Sprowls says their argument doesn’t hold.

“I can fly to Atlanta, go in the airport, never leave, and buy life insurance in the airport and then fly home,” he said.

Long-time insurance lobbyist Mark Delegal was at odds with Sprowls over the DNA privacy law and will be at odds with the Speaker over the data privacy bill. Delegal said the bill created a cottage industry for lawyers who would squabble over small amounts of money.

“The only winner in that equation are the lawyers who will grind away at an infinite number of hours over pennies for a consumer,” Delegal said. “And the only winner who comes out is a lawyer collecting fees for that.”

In place of a private right of enforcement, both Large and Delegal say the Department of Legal Affairs, and not consumers, should be empowered to sue businesses, which was the Florida Senate’s position in its version of the bill.

Gov. Ron DeSantis and Lt. Gov. Jeanette Nuñez stood by Sprowls’ side during a February news conference announcing the data privacy bill in the House. But after business interests lobbied the Governor’s office, sources say, the executive branch backed off its support, ultimately leading to the bill’s demise.

Sprowls, though, denied the civil enforcement provision in the bill killed it.

“I think the stumbling block had to do with enforcement generally,” Sprowls said. “What is the kind of enforcement that allows there not to be perversion in the system, people doing frivolous things to harass, versus people who are empowered to make sure that their data is protected and what’s their hook if something goes wrong or if somebody does something they’re not supposed to be doing?”

Meanwhile, Florida’s business interest groups have been anticipating another fight over the data privacy bill and the inclusion of a private cause of action and are starting to prepare for the legislative battle.

To that end, Associated Industries of Florida and NFIB Florida co-hosted a three and a half-hour meeting Aug. 25 in Orlando on Sprowls’ privacy proposal, along with the Florida Credit Union Association, the Florida Bankers Association, the Florida State Hispanic Chamber of Commerce, the Florida Insurance Council, Florida Internet & Television, the Florida Restaurant & Lodging Association, the Florida Retail Federation and Florida TaxWatch.

“I think it was altogether appropriate for more people to become aware of what this means since this was left at the doorstep last year,” said NFIB Florida Executive Director Bill Herrle, who said about 50 people attended the meeting, which was offered both in-person and virtually.

”We have concerns about the issue,” Herrle said. “We have concerns with the overall impact.”

https://floridapolitics.com/archives/456231-data-privacy-is-new-frontier-for-chris-sprowls-to-tackle/