This section contains articles written by our attorneys that cover various topics pertinent to the civil recovery industry. Our goal is to provide legal summaries, statutory changes and general industry news to increase awareness and knowledge about civil recovery.
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Maryland House Bill 1239
Law Offices of Palmer, Reifler & Associates Takes Action To Defeat Harmful Maryland House Bill; Maryland Retailers and Consumers Win. Proposed Maryland House Bill 1239 Called For Repeal Of All Civil Penalty Remedies By Retailers Against Shoplifters And Dishonest Employees. Orlando, FL, May 4, 2015: On March 4, 2015, Maryland House Bill 1239 was first introduced and read, calling for the repeal of Maryland Statutes Sections 3-1301 through 3-1308 and the subtitle “Subtitle 13. Civil Penalties for Shoplifting and Employee Theft”. Two days...
read morePros of Litigation
Courts encourage out-of-court settlements, making it clear that courts either expect or contemplate that victims of theft will likely attempt to resolve their disputes with theft offenders via demand letters before ever filing suit. In fact, some statutes require that a demand letter be sent offering to settle a civil claim before suit can be filed. Parties are encouraged to attempt to work out their disputes on their own before involving the legal system in a more formal way. However, while demand letters can be very effective, saving both...
read moreFor Civil Recovery The Age Of Majority Is Not Always Eighteen
In the United States and its territories, other than laws concerning consumption of alcohol, most people believe that once a person reaches eighteen years of age, provided they do not otherwise suffer from some legal incapacity or disability, that the person is considered an adult and is legally responsible for his or her own actions. As parents, many of us long for this day of being free from legal responsibilities of parenthood, even if it comes with some mixed feelings of whether your children can really fend for themselves, as many believe the magical age of 18 puts an end to being held legally responsible for the negligent or tortious acts of our child(ren). However, this may be an incorrect assumption when it comes to civil liability for theft from retailers by minors (i.e. “civil recovery liability”) and possibly other civil matters as parental/guardian liability for the negligent or tortious acts of minors is controlled by state law.
read moreConcealment = Shoplifting
It is a common misbelief that in order to commit the act of shoplifting, an individual must exit the store and permanently deprive the merchant of the unpurchased merchandise. The truth is, however, that in most states, an individual commits the act of shoplifting by taking actions that would cause one to reasonably believe that he intends to permanently deprive the merchant of the goods. Most states require that the merchant have probable cause (or reasonable grounds) to believe that an individual has committed an act of theft or is attempting to shoplift before making a decision to detain the individual to determine if their observation was correct. Probable cause or reasonable grounds is not limited to observing the individual exiting the store with unpurchased merchandise. In addition to clear cases of theft, such as when a person opens a product’s container, consumes the contents and fails to pay for the product, probable cause or reasonable grounds to detain and make inquiry can also be obtained by observing an individual conceal unpurchased merchandise or in some states, by the activation of EAS even if the individual was not observed concealing merchandise. The majority of states do not require that an individual exit the store in order to have a civil cause of action for shoplifting.
read moreTo Promise or Not to Promise … That is the Question
Almost all states have statutes that protect retailers by providing a civil remedy that allows for the recovery of actual damages arising from incidents of theft. Actual damages are in addition to any civil statutory (penalty) damages the retailer may be entitled to and generally include restitution. In a previous article from our Firm, it was explained that even if merchandise is recovered in merchantable condition, there are actual damages. Likewise, and even less likely to be contested, when the retailer is not able to recover the merchandise or the assets taken by the theft offender, the retailer suffers actual damages. When a retailer suffers actual damages, the retailer has a right to request reimbursement for actual losses sustained in addition to any available civil statutory (penalty) damages.
read moreNo Damage Does Not Mean No Damages
Many are under the assumption that a retailer does not sustain any damages if the merchandise stolen in a shoplifting incident is recovered in merchantable condition. However, this is not the case. Just because the merchandise is not damaged does not mean there are no legal damages.
read moreCivil Recovery in the Sunshine State
Many people are familiar with civil recovery demands in Florida for $200 and use that amount as requested statutory damages for any civil shoplift or internal theft demands made. However, they may be leaving money on the table by not pursuing civil theft claims for what the Legislature of Florida intended.
Florida Statutes Section 772.11 provides that “[a]ny person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of [Florida Statutes Sections] 812.012 - 812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts.” [1] A corporation is entitled to the civil remedy described above because a corporation is considered a person under the law in Florida.[2]
read moreTort versus Debt: Does a request for civil damages arising from a theft constitute the collection of a debt?
When a request for civil damages is made, many retail theft offenders assume that the request qualifies as an attempt to collect a debt and mistakenly believe that they are provided with the protections listed under the Fair Debt Collection Practices Act (“FDCPA”). Congress enacted the FDCPA in 1977 “to eliminate abusive debt collection practices by debt collectors, to ensure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent state action to protect consumers against debt collection abuses.”[1] The FDCPA and its state law relative “equivalents” are clearly intended to protect consumers from abusive debt collection practices. Debt falls under the realm of consumer law and is governed by the FDCPA and the above-mentioned various state statutory equivalents. Under the FDCPA, a debt is defined as “a consumer’s obligation … to pay money arising out of a transaction in which the money, property, insurance or services [being purchased] are primarily for personal, family or household purposes …”[2]
read moreCivil vs. Criminal: What is the Difference?
The difference between a civil claim and a criminal claim and the fact that there can generally be either a civil or criminal claim or both simultaneously stemming from the same incident is hard for many people who are caught shoplifting to understand. Most are familiar with the criminal procedure: when you break the law, the police are called and you’re arrested. You then are given a court date, are required to appear in front of a judge and, if found guilty, are sentenced. However, few shoplifters realize that they could also be pursued...
read moreAbout Time
There has always seemed to be a split amongst retailers as to the desirability of civil recovery. Further, among those retailers that favor civil recovery, there has always been an additional split as to which cases to take to civil court and when.
Some retailers feel that civil recovery is a helpful way of recouping a small portion of the vast amount of money lost due to theft (even when shrink is kept below industry standards), with the objective being to help fund loss control devices, exception based reporting software, case management software and other Loss Prevention initiatives as well as to help offset payroll for employees working in LP/AP. Other retailers feel that civil recovery is a necessity of business because they have been told its rewards outweigh its risks and is part of the status quo within the organization and industry.
read moreMerchant Detention Statutes: What is Considered a Reasonable Detention?
As a follow up to last week’s article by Michelle Gomez which discussed the length of time that is considered reasonable under states’ merchant detention statutes, this article will focus on what actions are considered reasonable during a detention. All of the statutes are similar in that they allow a merchant to detain a person in a reasonable manner when the merchant has reasonable cause to believe that the person has or is attempting to unlawfully take merchandise from the premises. But what does “in a reasonable manner” mean exactly?
read moreWho Has Liability as an Accomplice?
One of the biggest issues when stopping a shoplifter who is with another or a group of others is determining whether the others can be apprehended as well. In the majority of states, so long as the person has knowledge of the offense taking place and aids or encourages the primary participant in one form or another, that person can be apprehended as an accomplice and can potentially have the same liability as the primary participant.
read moreCash Theft vs. Merchandise Theft and Its Applicability to Civil Recovery Statutes
Civil recovery statutes are civil laws, specific to each state, that spell out what type of damages may be requested for acts of retail theft and how those damages and/or losses may be recovered from the party causing them. Many retailers are unclear on whether a certain state’s civil recovery statute will be applicable to the theft of cash or cash obtained through some fraudulent act. This confusion generally surrounds specific words contained within each statute that have a specific legal meaning, which may vary greatly from the layperson’s subjective interpretation.
read moreStatutes Amended for Retailer’s Benefit
Over the years, states have come to recognize the exorbitant monetary losses that retailers suffer due to incidents of theft and one by one, states have enacted statutes allowing the retailer to request civil statutory damages and/or a civil penalty from shoplifters in addition to any restitution that may be owed. These civil statutes, initially enacted to help the retailer defray the financial impact of shrink, partially offset the retailer’s security expenses and deter repeat offences, have evolved into an important way for retailers to recoup some of their losses from theft and in turn, help to keep prices down for the honest consumer.
In recent years, several states have amended these statutes in favor of the retailer, allowing for a greater recovery against the shoplifter.
read moreCourt rules decisively in favor of Palmer, Reifler & Associates in Kelly v Palmer, Reifler case. Victory creates positive precedent.
Orlando-based Civil Recovery law firm, Law Offices of Palmer, Reifler & Associates P.A., prevailed decisively in a lawsuit with major implications for retailers and for the practice of civil recovery. U.S. District Court Judge Federico Moreno, ruled in the Defendant’s favor on all counts of Palmer’s Motion for Summary Judgment on January 11, 2010. Specifically, Judge Moreno found against the Kelly Plaintiffs on every count, rejected their claims in their entirety, and ruled in Palmer, Reifler’s favor on all issues.
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