By Carolina Bolado

Law360 (July 2, 2020, 4:15 PM EDT ) The coronavirus pandemic dominated the first half of the year in Florida as judges and litigators had to adjust to the new normal of justice by computer screen, but the courts continued their work, issuing rulings in battles over felon voting rights and bitcoin holdings, as well as handling pandemic-related litigation over business interruption coverage and cruise ship liability.

While there were some hiccups, both federal and state courts have been able to perform most functions remotely. In Broward County, Chief Judge Jack Tuter said judges in the 17th Judicial Circuit have fully adapted to the technology and have held more than 6,000 remote hearings.

He said they had initially hoped to return to face-to-face proceedings in the fall, but the recent rise in coronavirus infections in Florida has made that unlikely. In the meantime, the circuit has conducted three mock jury trials by videoconference to test it as a potential solution.

"We are hopeful but not yet committed that jury trials can resume before the end of the year," Judge Tuter said. "The judiciary, like all other phases of our county, remains frustrated about recent outbreaks. We remain committed not to reopen any courthouse until we can insure a healthy environment for our visitors."

Cruise Line Woes

Few industries have been hit harder in the pandemic than the cruise lines, which had to deal with large-scale coronavirus outbreaks on ships and have been under a no-sail order since March 14. They are now facing a spate of litigation, mostly filed in Florida where the cruise companies are headquartered, from passengers and workers who got sick on board.

Norwegian Cruise Line is in particular trouble after emails and company memos instructing employees to downplay the danger of the coronavirus outbreak to concerned customers were leaked to the Miami New Times. The company is now fighting off a consolidated investor suit as well as an investigation by Florida's attorney general.

While battling the pandemic, the cruise companies have also had to defend against lawsuits filed last year that claim they trafficked in confiscated Cuban waterfront property by docking their ships at Cuban ports. U.S. District Judge Beth Bloom, who is overseeing four suits against Norwegian, Carnival Corp., Royal Caribbean Cruise Ltd. and MSC Cruises SA, had previously dismissed the claims under Title III of the Helms-Burton Act against the cruise companies, but on April 15 she reversed course after finding that she had previously construed the liability provision of Title III too narrowly.

In May, they asked for a temporary reprieve from the Helms-Burton litigation, claiming the pandemic has squeezed their staff and made the thorough discovery requested by former port owner Havana Docks Corp. burdensome.

Florida Supreme Court Almost Back to Full Strength

For much of the first half of the year, the Florida Supreme Court operated with just five justices, as the seats previously occupied by Justices Barbara Lagoa and Robert Luck sat empty following their nominations to the federal Eleventh Circuit Court of Appeals. The judicial nominating commission for the Supreme Court had interviewed candidates and sent a list of nominees to Gov. Ron DeSantis on Jan. 23, but for months the governor dragged his feet on making a decision, and the court operated at below full strength.

The state constitution requires action by the governor within 60 days of receipt of the list of nominees, but DeSantis waited until May 26 to announce that he was tapping Kobre & Kim LLP litigator John Couriel of Miami and Judge Renatha Francis of the Fifteenth Judicial Circuit to fill the empty seats.

The delay angered some appellate attorneys who said their clients were entitled to a court with seven justices. One attorney, who asked to remain anonymous because of pending cases before the court, pointed out that for the first half of the year, the court operated without a representative from Miami, despite the constitution's requirement that the court have at least one justice from each of the state's five district courts of appeal.

Justice Couriel has already joined the bench and is hearing oral arguments, but Judge Francis — who will become the first Caribbean American on the state's highest court — won't be able to do so until September, when she reaches the 10-year Florida Bar membership benchmark necessary to be sworn in as an appellate judge.

Judge Francis was the only Black nominee on the list sent to the governor, and judicial watchers speculated that DeSantis was under pressure to appoint a woman of color to the final seat. The delay may in part have been an attempt to shorten Judge Francis' ineligibility time, according to Adam Richardson, an appellate attorney at Burlington & Rockenbach.

$10 Billion Bitcoin Fight Headed to Trial

An acrimonious discovery battle in a dispute over the ownership of potentially $10 billion of bitcoin and intellectual property came to an end June 24 when Judge Bloom denied a motion for default sanctions against self-styled Bitcoin inventor Craig Wright, who is being sued by the estate of his late business partner David Kleiman.

The judge said Kleiman's arguments about forged evidence, witness credibility and Wright's intentions "can be used to effectively persuade a jury" but do not clearly establish bad faith on Wright's part — at least not so clearly as to warrant default sanctions against him.

Wright had previously been sanctioned by a magistrate judge and was ordered to give up half his bitcoin holdings for failing to comply with court orders, but Judge Bloom later reduced that to just payment of Kleiman's attorney fees.

The judge's most recent decision paves the way for the parties to head to trial, which was initially set for July but has since been pushed back to Oct. 13. At trial, jurors will have to decide whether there was a partnership agreement between Kleiman and Wright that would entitle Kleiman to a share of Wright's bitcoin holdings.

The case is Kleiman et al. v. Wright, case number 9:18-cv-80176, in the U.S. District Court for the Southern District of Florida.

Business Interruption Challenges Heat Up

Florida courts, like those in other states, have seen lawsuits challenging denials by insurance companies of business interruption coverage under commercial insurance policies. Among the earliest filed was one filed April 2 by Tampa sports bar operator Prime Time Sports Grill Inc. claiming Lloyd's of London should cover the losses incurred during the pandemic closures.

That was followed by at least three proposed class actions — one brought by a restaurant group in Miami against Lloyd's of London, another by a Fort Lauderdale restaurant against Chubb International, and a third by a Miami Beach spa against HDI Global Specialty SE — challenging the denials of their business interruption coverage claims.

More are likely to come thanks to Florida's fertile environment for insurance coverage class actions, according to Alec Schultz of Leon Cosgrove LLP in Miami. He said that while most states construe ambiguous policies in favor of the insured, Florida has several appellate and Supreme Court opinions that broaden what could be considered ambiguous, a legacy of extensive litigation over property damage caused by hurricanes.

"It creates a little more wiggle room to get into that burden-shifting analysis," he said.

There is chatter, Schultz said, of trying to get these class suits around the country consolidated into a multidistrict litigation in Miami or Chicago, though he cautioned that it is still too early to tell whether consolidation will happen. The early enthusiasm for these types of challenges may also be waning.

"I think some people were much more bullish on the chances of the businesses at the start of this," Schultz said. "A lot of these policies have strong exclusionary language, and it's going to be difficult to get around that, even in a favorable forum like Florida."

Ex-Felons Win First Battle in Fight Over Fees

U.S. District Judge Robert Hinkle got to test the limits of the Northern District of Florida's technical capabilities early on in the pandemic, when he oversaw a bench trial by videoconference in late April in a challenge to a Florida law requiring former felons to pay all fines and fees before being able to vote.

On May 24, Judge Hinkle sided with the challengers, ruling that the expenses imposed on ex-felons to fund government operations are "taxes in substance, though not in name," and the state cannot prevent those who are unable to pay those legal financial obligations from voting.

But on Wednesday, the Eleventh Circuit put a hold on Judge Hinkle's decision while the state appeals the ruling. The Eleventh Circuit also agreed to hear the case en banc on an expedited basis, but oral arguments have not yet been scheduled, and time is running out for those former felons who can't afford to pay their fines but want to cast a vote in the November general election.

The case is Jones et al. v. DeSantis et al., case number 20-12003, in the U.S. Court of Appeals for the Eleventh Circuit.

--Additional reporting by Philip Rosenstein and Kelly Zegers. Editing by Adam LoBelia.

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