However, such dismissal is without prejudice and the Plaintiffs are granted leave to amend so that they may attempt to allege actual damages4. Civil TheftPlatinum Plus first argues Plaintiffs failed to comply with the notice requirement in section 772.11(1), Fla. Stat. (Doc. # 11 at 19). Section 772.11(1) requires that “[b]efore filing an action for damages . . ., the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section.”

This is a crucial point when the intangible labor of a Professional is stolen. Florida Statute §772.11 provides a civil remedy as theft of Professional Services by defining such as “property.”Titled, “Civil remedy for theft or exploitation,” this Statute provides a cause of action to anyone, upon a showing of clear and convincing evidence, injury resulting from a statutory violation of criminal theft.

In DepthClick here to download a PDF of the full decision.In most recent decision over The Turtles’ pre-1972 sound recordings, Eleventh Circuit asks Florida Supreme Court to determine whether state law recognizes common law copyright in sound recordings and, if so, whether that copyright includes exclusive rights of reproduction and/or public performance, and scope of and limitations on those rights. Flo & Eddie Inc., a corporation with principals Mark Volman and Howard Kaylan of the iconic 1960s rock band The Turtles, sued Sirius XM Radio Inc., alleging the satellite and internet radio provider broadcast Turtles’ sound recordings to its subscribers without license or authorization, and asserting state law claims for common law copyright infringement, common law misappropriation/unfair competition, common law conversion and civil theft under Fla. Stat. Section 772.11. In 1971, Congress amended the Copyright Act to grant limited copyright protection to sound recordings fixed on or after Feb. 15, 1972, leaving intellectual property rights in sound recordings fixed before that date to be governed by state law.

The purchase price is typically payable with a 60-month promissory note from the company to the expelled member. Judicial expulsion does not limit or adversely affect any right or power the company or other members have to recover damages from the expelled member or pursue other civil, equitable, or criminal remedies.Misappropriation and TheftIf the misappropriation of assets rises to a level of theft, in addition to corporate expulsion, the company and the remaining members likely possess vested claims against the rogue member of three times the actual damages sustained and reasonable attorney’s fees and court costs incurred in prosecution of the claims in accordance with Florida Statute §772.11 governing Civil Theft and Fraud. If these claims are pursued, the case should be turned over to the local State Attorney’s office for investigation and prosecution of felony crimes of theft, access device fraud crimes, dealing in proceeds of unlawful activities, and related offenses.

Evidently, their property insurer provided a defense under a reservation of rights, but declined to indemnify. CRT then litigated coverage with the insureds’ D&O carrier and property insurer (by implication, the insureds were not parties to the coverage action) .On D&O issues, the court first found: (a) the insureds’ liability for civil theft under s. 772.11, Fla. Stat., was not a “loss” as defined because, “as a matter of law,” loss excludes “restoration of ill-gotten gains”; (b) “civil theft is not insurable as a matter of [Florida] public policy”; and (c) the policy expressly excluded coverage for the treble damages portion of the verdict (i.e., twice the ‘actual’ damages). The few cases cited for points (a) and (b) — conceptually hard to distinguish — appear to provide only analogous authority.

The purchase price is typically payable with a 60 month promissory note from the company to the expelled member. Judicial expulsion does not limit or adversely affect any right or power the company or other members have to recover damages from the expelled member or pursue other civil, equitable or criminal remedies.If the misprision of assets rises to a level of theft, in addition to corporate expulsion, the company and the remaining members likely possess vested claims against the rogue member of threefold the actual damages sustained and reasonable attorney’s fees and court costs incurred in prosecution of the claims in accordance with Florida Statute §772.11 governing Civil Theft and Fraud. In the event these claims are pursued, it is advisable to turn the case over to the local State Attorney’s office for investigation and prosecution of felony crimes of theft, access device fraud crimes, dealing in proceeds of unlawful activities and related offenses.Considering the legal and financial ramifications of expelling a member through judicially compelled means, it is often advisable that all members first seek to sit down and work through the issues to reach a mutually agreeable resolution to remedy past transgressions and smoothly transition the interests of the company.