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Bernard Lebedeker, Partner, Reid Burman Lebedeker Xenick, West Palm Beach Bernard Lebedeker, Partner, Reid Burman Lebedeker Xenick, West Palm Beach

In January 2020 the “futility exception” will return. Florida law has long followed the rule that the law will not require a futile act. The rule has been applied in a wide variety of circumstances: to excuse a party to a contract from performing conditions precedent, to excuse a party from exhausting his or her administrative remedies, or even to excuse the state from proffering evidence showing that an accused qualifies as a prison releasee reoffender. In each of these situations the futile act is unlikely to resolve the dispute or change its outcome. The rule exists because the law desires a just, speedy, and inexpensive resolution of disputes, and not byzantine exercises where form dominates function. The use of the rule in actions which arise in equity is particularly appropriate, and this would include derivative actions—suits in which a shareholder brings a lawsuit on behalf of a corporation for wrongs done to the corporation.

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