Court: 11th Judicial Circuit Court in Miami-Dade, Florida
Case No.:
03-13413-CA-21

This novel case seeks a declaratory judgment that two sections of Florida’s Business Corporations Act (Fla. Stat. § 607.0122(13) and Fla. Stat. § 607.193(2)(b)) are unconstitutional. The action involves two Plaintiff small businesses: Angelfish Swim School and Steak on the Run. Both of these Florida corporations filed their Annual Reports with the Florida Secretary of State late and were assessed a statutory $400 “late charge” and a $600 statutory “reinstatement fee,” respectively.  Plaintiffs claim that both charges were excessive penalties in violation of the Florida Constitution.

Wexler Wallace was asked to become involved in the case in 2008, just before the hearing on class certification.  Wexler Wallace, along with co-counsel, made the presentation for class certification for Plaintiffs.  Judge Mary Barzee Flores, the judge at that time, certified the class.  The State appealed the decision to the Third District Court of Appeal in Miami.  Wexler Wallace conducted the appellate oral argument on behalf of Plaintiffs.  The appellate court held that three of the four prerequisites to class certification were satisfied and remanded the case to the trial court to address the issue of adequacy.  Judge William Thomas, presiding trial court judge, certified the class. The State also appealed that decision.

The issue on appeal was whether or not Plaintiffs had demonstrated that they were willing to “participate” in the costs of funding the litigation.  As the issue raised a fundamental due process question of access to the courts, the Plaintiffs were joined on appeal by several amici including the Florida Justice Association, Jacksonville Area Legal Aid, Inc., the Public Interest Law Section of the Florida Bar, Florida’s Children First, Inc., and Public Justice, P.C.

The Third District Court of appeal issued a per curiam opinion reversing the second certification order, without explanation.  Because of the fundamental constitutional issues involved, counsel is now petitioning for rehearing, rehearing en banc, and to certify the following question of great public importance to the Florida Supreme Court:

Whether class representatives, who are of limited economic means, are entitled to rely on their counsel to advance the costs attendant to class action litigation pursuant to Rule 4-1.8 of the Rules Regulating the Florida Bar in order to be considered financially adequate representatives of the class.

To learn more about the case and view the most recent Complaint, click here.