CASE NO. SC DAVID M. SORIA, M.D., INPHYNET CONTRACTING SERVICES, INC. and TEAM HEALTH, INC., JURISDICTIONAL ANSWER BRIEF

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1 IN THE FLORIDA SUPREME COURT _ CASE NO. SC DAVID M. SORIA, M.D., vs Petitioner. INPHYNET CONTRACTING SERVICES, INC. and TEAM HEALTH, INC., Respondents. On discretionary conflict review of a decision of the Fourth District Court of Appeal JURISDICTIONAL ANSWER BRIEF BEVERLY A. POHL PETER R. GOLDMAN VANESSA M. SERRANO BROAD AND CASSEL One Financial Plaza, Suite S.E. Third Avenue Fort Lauderdale, Florida (954) Counsel for Respondents InPhyNet Contracting Servs., Inc. and Team Health, Inc.

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 2 SUMMARY OF ARGUMENT... 5 ARGUMENT... 6 THE COURT LACKS JURISDICTION BECAUSE THERE IS NO EXPRESS AND DIRECT CONFLICT WITH THIS COURT S DECISION IN SOSA V. SAFEWAY PREMIUM FINANCE CO CONCLUSION CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE i

3 TABLE OF AUTHORITIES CASES Page Hardee v. State, 534 So. 2d 706 (Fla. 1988)... 2 InPhyNet Contracting Services, Inc. v. Soria, 33 So. 3d 766 (Fla. 4th DCA 2010) (InPhyNet I)...passim Nielsen v. City of Sarasota, 117 So. 2d 731 (Fla. 1960) Reaves v. State, 485 So. 2d 829 (Fla. 1986)... 3 Sosa v. Safeway Premium Fin.Co., 73 So. 3d 91 (Fla. 2011)...passim CONSTITUTIONAL PROVISIONS Art. V, 3(b)(3), Fla. Const.... 5, 6, 8 STATUTES AND RULES R , Fla.R.Civ.P R (b)(3), Fla.R.Civ.P R , Fla.R.App.P ii

4 STATEMENT OF THE CASE The question before the District Court was whether the trial court s order permitting David M. Soria to maintain an amended putative class action claim against InPhyNet Contracting Services, Inc. was inconsistent with the mandate in InPhyNet Contracting Services, Inc. v. Soria, 33 So. 3d 766 (Fla. 4th DCA 2010) (Warner, J.) ( InPhyNet I ). In that prior appeal, the Fourth District had reversed an order certifying a class action against InPhyNet, finding that the class members claims for unpaid bonus compensation had no basis in their written employment contracts, and would require individualized proof of oral representations by InPhyNet. Because the claims required individual proof of oral promises, the Fourth District concluded in InPhyNet I that common questions did not predominate and that class certification was improper on that basis alone. When a successor trial judge (Hon. Jeffrey Streitfeld) later permitted an amended putative class claim for unpaid bonus compensation to go forward, InPhyNet filed a motion in the District Court to enforce the InPhyNet I mandate, or alternatively for a petition for writ of prohibition, to preclude further class claims and renewed class certification proceedings. 1 The District Court treated the filing as a petition for writ of prohibition, and granted the writ, holding that prohibition 1 Team Health, InPhyNet s parent company, is a nominal party to this case, but no claims against Team Health are pending in the trial court. 1

5 is appropriate because the trial court, after the appellate mandate, allowed the plaintiff to proceed with one count of its second amended class action complaint. The trial court s action was inconsistent with this court s decision in InPhyNet I. Pet. App. (slip op.) (Warner, J.) (InPhyNet II). Soria has sought discretionary review, asserting that the decision granting a writ of prohibition misapplied and conflicts with Sosa v. Safeway Premium Finance Co., 73 So. 3d 91 (Fla. 2011). STATEMENT OF THE FACTS The Court should disregard Petitioner s six-page Statement of the Case and Facts, because it is argumentative and fails to limit the presentation of the case to the four corners of the decision below. See Hardee v. State, 534 So. 2d 706, 708 n. 1 (Fla. 1988) ( for purposes of determining conflict jurisdiction, this Court is limited to the facts which appear on the face of the opinion. ). This Court has explained that extraneous facts, such as those in Petitioner s Brief, are pointless and misleading in a brief on jurisdiction: The only facts relevant to our decision to accept or reject such petitions are those facts contained within the four corners of the decisions allegedly in conflict... [W]e are not permitted to base our conflict jurisdiction on a review of the record or on facts recited only in dissenting opinions. Thus, it is pointless and misleading to include a comprehensive recitation of facts not appearing in the decision below, with citations to the record, as petitioner provided here. 2

6 Reaves v. State, 485 So. 2d 829, 830 (Fla. 1986). In addition, in places Petitioner flatly misstates the facts. 2 We therefore restate the facts. In the underlying litigation, Petitioner David Soria, M.D. sought to recover unpaid bonus compensation for himself and other hospital emergency department physicians who were allegedly underpaid under their employment contracts with InPhyNet Contracting Services, Inc., a hospital staffing company. In 2008 the trial court certified a plaintiff class, but in InPhyNet I the Fourth District reversed the class certification order, because the Physician Incentive Plan contracts at issue contained no obligation to pay a percentage of profits. In fact, the physicians written contracts afforded InPhyNet sole discretion in funding the bonus pool, making any claim for underpayment of bonus income subject to individualized proof of oral promises. See InPhyNet Contracting Servs, Inc. v. Soria, 33 So. 3d 766; see also Pet. App., pp For example, Petitioner s Brief (p. 1) states that he and the class members were entitled to... a percentage of the profits under their contracts. The District Court has rejected that allegation. See Pet. App. pp In general, in addition to failing to adhere to the four corners rule, Petitioner s statement of the case and facts (pp. 1-6) fails to distinguish between his allegations and actual facts. In addition, we disagree with Petitioner s statement that the Fourth District found that all of the other elements for class certification had been satisfied, conceded, or otherwise established in the record (Petitioner s Brief, p. 1), but our dispute on that issue is not pertinent to the question of this Court s jurisdiction. 3

7 Nonetheless, after InPhyNet I, Soria sought and was granted leave to file a Second Amended Class Action Complaint, which abandoned the claim to a percentage of profits, but alleged that a phantom accounting line item had artificially and wrongfully reduced the amount available to fund the physician bonus pool. InPhyNet moved to dismiss, arguing that the amended claims were no different from those that had been at issue in InPhyNet I, and that renewed class certification proceedings were barred by that decision. The trial court dismissed in part, but allowed one count of the amended putative class complaint to go forward. InPhyNet sought immediate review and again the Fourth District disagreed with Soria, noting in the decision below that [h]ow the amount of that bonus pool is to be determined is not contained within the written agreement with each physician. As we explained in the prior opinion, that is a matter of individual proof. (Pet. App., p. 3) (emphasis in original). The District Court reasoned that the allegations concerning the challenged accounting line item, reprised in the Second Amended Class Action Complaint, were barred by the prior appeal: It is obvious from a careful reading of this court s decision [InPhyNet I] that any claims pertaining to the allegedly improper expense of Other Physician Benefits must proceed on an individualized basis. Id. The District Court therefore prohibited any class claims for alleged underpayments of bonus income, but permitted Dr. Soria to maintain an individual claim based on alleged oral representations. Id. The decision did not cite Sosa. 4

8 Soria now contends that the Fourth District misapplied Sosa when it enforced the InPhyNet I mandate and granted the writ of prohibition. We show below why Sosa was actually irrelevant and certainly not in conflict, and why this Court lacks jurisdiction to review the decision granting a writ of prohibition precluding class claims for unpaid bonus compensation. SUMMARY OF ARGUMENT Petitioner David M. Soria has failed to demonstrate that the Fourth District s decision granting a writ of prohibition to enforce its mandate in a prior case conflicts with this Court s decision in Sosa v. Safeway Premium Finance Co., 73 So. 3d 91 (Fla. 2011). The strictures of Article V, section 3(b)(3), Florida Constitution, have not been met, because the case below does not expressly and directly conflict with Sosa. Petitioner s assertion of misapplication conflict is incorrect, because the decision below announced no rule of law that conflicts with any rule announced in Sosa, nor did it reach a different result from Sosa based on substantially similar facts. The facts in this case are different on one critical point, i.e., that even if Petitioner could establish the alleged company-wide practice of utilizing a phantom accounting line-item to reduce profits available for bonus income, the class members here had no contractual right to a bonus pool of any size, or to any 5

9 particular amount of bonus income. Class-wide proof would not lead to class-wide relief, because the class members claims were dependent upon individual proof of oral promises. That is in stark contrast to the class members in Sosa, who would be necessarily entitled to relief if a company-wide practice of overcharging for insurance premiums could be established. Indeed, to the extent that the decision below relied on the Fourth District s prior decision in InPhyNet I, 33 So. 3d 766, it is notable that this Court cited InPhyNet I in Sosa s discussion of the predominance factor in class action analysis, the sole factor leading to reversal in InPhyNet I. This Court s reliance on InPhyNet I is the antithesis of conflict. While it seems that Petitioner seeks to challenge both InPhyNet I and InPhyNet II, that effort must fail. No conflict means this Court has no jurisdiction, and review must be denied. ARGUMENT THE COURT LACKS JURISDICTION BECAUSE THERE IS NO EXPRESS AND DIRECT CONFLICT WITH THIS COURT S DECISION IN SOSA V. SAFEWAY PREMIUM FINANCE CO. This Court lacks jurisdiction under the asserted constitutional provision, Article V, section 3(b)(3), because the Fourth District s decision granting a writ of prohibition and enforcing its prior mandate does not expressly and directly conflict with this Court s decision in Sosa v. Safeway Premium Finance Co., 73 6

10 So. 3d 91 (Fla. 2011). Because this Court s conflict jurisdiction should be exercised, if at all, only when a real, live and vital conflict exists, see Nielsen v. City of Sarasota, 117 So. 2d 731, 735 (Fla. 1960) (cited in Petitioner s Brief), and because none exists in this case, Petitioner s transparent effort to challenge the class certification analysis in InPhyNet I via review of the later prohibition decision should be rejected. 3 Sosa was not a prohibition case, nor was it a case about enforcing a prior appellate mandate. What Sosa did was to explain the scope of an appellate court s review of a class certification order under the abuse of discretion standard as applied to the factors relevant to a Rule 1.220, Fla.R.Civ.P., analysis. Significantly, in Sosa, this Court cited InPhyNet I in the section discussing Rule 1.220(b)(3) s predominance factor, see 73 So. 3d 91,, 2011 WL at *15, implicitly approving the Fourth District s analysis. Despite its lengthy discussion of the degree of deference owed to a trial court s assessment on the question of class certification, Sosa did not disapprove, reject, or criticize any aspect of InPhyNet I, which had reversed a class certification order. Yet in this Court Petitioner argues that Sosa suggests that the predominance analysis in InPhyNet I was erroneous. See Petitioner s Brief, p. 8 (citing 33 So. 3d at , 774). We disagree. This 3 While Nielsen was decided under a prior version of the Florida Constitution, this Court s contemporary decisions have not retreated from that exacting standard when examining whether conflict jurisdiction exists and whether to exercise it. 7

11 Court s conflict jurisdiction is not to be based on suggestions and supposition; it must be express and direct. See Art. V, 3(b)(3), Fla. Const. Nonetheless, while we reiterate that this proceeding should not be a vehicle for Soria to seek untimely review of InPhyNet I, and that a mere suggestion of conflict is insufficient in any event, the fact is that InPhyNet I did not fail to give proper deference to the trial court on the predominance factor. InPhyNet I properly reversed on predominance because the trial court did not conduct a rigorous analysis of the predominance factor... The trial court made no analysis... [and] did not analyze any of the other issues involved in that [predominance] determination. 33 So. 3d at 772 (emphasis supplied). Despite emphasizing that the proper standard of review is abuse of discretion, Sosa did not insulate class certification orders from appellate review where no analysis was done by the trial court on a critical factor, as here. The Fourth District found that the absence of any guarantee of any amount of bonus income in the class members written contracts precluded class claims, and that conclusion applied equally to the amended class claim in the decision below as to the original class claims at issue in InPhyNet I. Because the contract gave InPhyNet sole discretion in funding a bonus pool, the Fourth District held that the amended class claims, like those considered in InPhyNet I, were dependent upon individual proof of oral representations, and therefore not suitable for class treatment. (Pet. App. at 3). 8

12 Petitioner seeks to draw a comparison between the facts of Sosa and the facts in this case, asserting that a defendant s common course of conduct is necessarily sufficient to warrant class certification: [T]he common course of conduct and business practice of InPhyNet was its improper deductions from incentive compensation paid to its employed physicians for nonexistent and unsubstantiated Other Physician Benefits. This common course of business conduct squarely equates to the overcharge practice in Sosa. Petitioners Brief, p. 9. That assertion is incorrect, because where in Sosa proof of a systemic overcharge practice necessarily benefitted each class member, in this case assuming arguendo that the Other Physician Benefits line item deliberately reduced the profits available for bonus compensation, the physicians had no contractual expectation of any level of bonus compensation, because the contracts gave InPhyNet sole discretion in funding the bonus pool. See Pet. App., p. 1. Thus, Soria cannot fit the square peg of these facts into the round Sosa hole. Because the decision below neither announced a rule of law inconsistent with Sosa, nor misapplied Sosa in a case involving substantially the same facts, Petitioner has failed to demonstrate misapplication conflict, and therefore has failed to demonstrate that this Court has jurisdiction to review the prohibition decision below. 9

13 CONCLUSION For the foregoing reasons, the decision below, granting a writ of prohibition because the trial court acted inconsistently with the Fourth District s prior mandate did not misapply this Court s decision in Sosa v. Safeway Premium Finance Co., 73 So. 3d 91 (Fla. 2011). The decision below does not expressly and directly conflict with Sosa, and this Court lacks jurisdiction to review the Fourth District s decision enforcing its own mandate. Respectfully submitted, BEVERLY A. POHL Florida Bar No PETER R. GOLDMAN Florida Bar No VANESSA M. SERRANO Florida Bar No BROAD AND CASSEL 100 S.E. Third Ave., Ste Fort Lauderdale, FL Ph: (954) Fax: (954) bpohl@broadandcassel.com pgoldman@broadandcassel.com vserrano@broadandcassel.com By: /s/ Beverly A. Pohl BEVERLY A. POHL Counsel for Respondents, InPhyNet Contracting Services, Inc. and Team Health, Inc. 10

14 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Jurisdictional Answer Brief has been furnished to the Court by electronic filing and by FedEx, and to the parties named below, by and U.S. Mail (Mr. Waldman) and hand delivery (Judge Streitfeld) on this 14th day of December, 2011: GLENN J. WALDMAN, Esq. DOUGLAS T. MARX, Esq. WALDMAN TRIGOBOFF HILDEBRANDT MARX & CALNAN, P.A N. Commerce Pkwy. Ste. 202 Weston, Florida Ph: (954) Fax: (954) GWaldman@waldmanlawfirm.com dmarx@waldmanlawfirm.com HON. JEFFREY E. STREITFELD Circuit Judge Room 920-A Broward County Courthouse 201 S.E. 6th Street Fort Lauderdale, Florida CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that this Brief complies with FLA.R.APP.P , and is prepared in Times New Roman 14-point font. /s/ Beverly A. Pohl BEVERLY A. POHL /0010 BAP 11