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Florida Fourth DCA affirms jury verdict and judgment for plaintiff in case brought under Florida’s Whistleblower Act

On May 27, 2020, in Le Publications, Inc., et al, v. Kohl, No. 4D19-2053, the Florida Fourth DCA affirmed a jury verdict in favor of the plaintiff in a case brought under Section 448.102, Florida Statutes (2005), also known as Florida’s Whistleblower Act (“FWA”). The complaint alleged that the defendants, who were in the business of selling vitamins and supplements, fired the plaintiff from his position as a “Senior Editor” on July 7, 2005, in retaliation for reporting to upper management “serious violations of Federal Drug laws taking place at the Defendants’ premises.” The defendants argued on appeal they had been entitled to a directed verdict at trial because the evidence failed to establish a prima facie case under the FWA. Among other arguments, they maintained the plaintiff did not prove that an act of his employer was in violation of a law, rule or regulation, citing Kearns v. Farmer Acquisition Co., 157 So. 3d 458, 465 (Fla. 2d DCA 2015) (stating the FWA requires a plaintiff to prove “that he objected to an actual violation of law or that he refused to participate in activity that would have been an actual violation of law”). The Court noted that it had previously rejected this standard in Aery v. Wallace Lincoln-Mercury, LLC, 118 So. 3d 904, 916 (Fla. 4th DCA 2013), in which the Court interpreted the first element of an FWA claim to mean that a plaintiff objecting to the employer’s conduct need only have “a good faith, objectively reasonable belief” that the employer’s activity was illegal. The defendant raised Judge Gross’s specially concurring opinion in Usher v. Nipro Diabetes Systems, Inc., 184 So. 3d 1260, 1262 (Fla. 4th DCA 2016), which suggests that the Fourth DCA may one day “reconsider language in Aery . . . that may conflict with the thoughtful analysis in Kearns . . . .” However, the Fourth DCA declined to reconsider its position, noting that the defendant’s argument was not preserved before the trial court and was consequently waived and that the jury instruction in the case did not even rely on the subjective standard articulated in Aery.

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