Wednesday, October 31, 2007

Joe Klock Explains How (Not) to Destroy A Law Firm

It's hard to believe, but Joe -- with a straight face -- is dispensing grandfatherly advice on how to open a foreign office:

Steel Hector & Davis, once among Florida’s largest independent law firms, opened offices in Brazil, the Dominican Republic, Venezuela and the United Kingdom, and forged associations with a firm in Chile and another in Argentina. But in 2005, the Miami-based firm merged with Squire Sanders & Dempsey of Cleveland due to financial problems.

Since the merger, Squire Sanders has retained four of the international offices and retained the associations with the two firms in Chile and Argentina. The only office not retained was in Sao Paulo, Brazil, said Albert del Castillo, a partner and Florida practice coordinator.

Joseph P. Klock, the former Steel Hector & Davis managing partner blamed by many for the firm’s woes, acknowledged he made mistakes with the firm’s international expansion but noted most of the offices are still open.

“I’ve made bad decisions with the best of them and have had an opportunity to look at all of the various models,” said Klock, now a partner with Epstein Becker & Green in Miami.

“A mistake is something that costs more than it has to and takes more time than it has to,” he said. “It’s not a mistake that we shouldn’t have done it. We never opened a foreign office that we closed.”

“It’s not a business for the faint of heart,” he added.

Klock said there are three ways to go about expanding a law firm internationally. One way is to open a new office from scratch bringing in attorneys and staffers.

“This can be a very successful model if you’re extremely rich and you have long staying power,” he said. “It has its pitfalls. It’s expensive and I’m not sure you get to learn about the habits of the jurisdiction.”

The second option is where a U.S. firm merges with a firm in another country. However, he said top leadership in the firm’s U.S. offices and in the foreign office must agree on how to operate.

“It requires the firm inside the United States to adopt a more open-minded view toward how organizations are run,” he said. “It’s important to get the primary partners in the office to become integrated into how the international firm thinks, otherwise they’ll separate.”

A third model is to partner with another firm in a foreign country, lend the name to the foreign affiliate, but the affiliate “maintains its economic interests separately,” Klock said.

He said the key thing to do when operating internationally is to be flexible and amenable to different ways of doing business.

Another option is to join an international club or association of law firms. That’s the approach Epstein Becker has taken in order to serve its clients’ international needs, he said. The firm is a member of the International Lawyers Network, which bills itself as an association of 89 law firms which operate in 69 countries that employ 5,000 lawyers worldwide.
Note -- the Brazilian office. The one everyone on the street knew was a disaster. The one they were endlessly building. The one with the massive cost overruns. The one that was an unbelievable, insatiable money pit. Or so I heard.

But other than that everything worked great!

What does it tell you that Joe's new firm is not following his prior, successful model?

And I love Joe's exculpatory definition of "mistake," essentially sucking all meaning from the word. Let's try this -- is it a mistake when you are unceremoniously ousted by your partners and your storied, independent, and legendary law firm has to be subsumed and lose its identity?

"Only if I say it was."

"Reckless and Unfortunate"

So says prominent bankruptcy attorney Paul Singerman, responding to whack-a-mole crusader Andy Herron in today's Herald:

A lawyer for the HCA hospital chain linked the Pharmed Group supply company to a $3.5 million kickback scheme in a bankruptcy hearing Tuesday.

The allegations involve a Pharmed executive accused of paying two employees at Kendall Regional Medical Center for ordering supplies that were never delivered to the hospital.

HCA believes 'this goes all the way to the top of debtors' management,'' attorney Andrew R. Herron said in the first hearing involving the Chapter 11 filing for Pharmed, once one of the largest Hispanic-owned companies in the United States.

Pharmed's attorney, Paul Steven Singerman, fired back that ''the characterization was reckless and unfortunate,'' noting that neither Pharmed nor owners Carlos and Jorge de Céspedes were named in a lawsuit concerning the matter.

"Reckless and unfortunate"? Maybe a little harsh, but hey, that was Andy's nickname in law school.

(I think he can handle it....)

Tuesday, October 30, 2007

More Fun with Donald Jones

Above the Law has a mash-up graphic of University of Miami Law Professor D. Marvin Jones, here. I'm not putting it up -- not because I am offended by it; I just don't think it's very funny. However, some of you may have more or less refined tastes in humor, so enjoy if that's your bag.

Meanwhile, the arrest report is above. What is an "attempted offer" anyways?

Further updates email me at

Bill Lerach Pleads Guilty

From the LA Times today:

Lerach, 61, entered the plea to one count of conspiracy as part of a deal with federal prosecutors, admitting to obstructing justice and making false statements in connection with a scheme to bribe people to be plaintiffs in class-action lawsuits.

The deal struck last month was something of a coup for Lerach. Although he will have to pay the government $8 million and will probably be disbarred, he wrung an agreement from the government to shield the San Diego firm he founded in 2004 from prosecution in the case. If U.S. District Judge John Walter refuses to honor the terms, Lerach can withdraw his plea.
So Judge Walter needs to rules on the plea agreement -- any idea when that is scheduled to occur?

Monday, October 29, 2007

A Crunchy Granola Litigator?

The Herald profiles Broward employment litigator Stuart Rosenfeldt. He takes an holistic approach to litigation, something we could all learn from:

JB:Now, some Average Joe is going to want to know why you think it's good for him that you represent corporations, big employers, as opposed to the little guy. Tell him why your work helps him, too.

SR: I have represented individuals and occasionally do. But you're right. Now my practice is almost exclusively corporate. But here's why it helps both sides: I teach employers how to follow the law. I teach them holistic employee relations, that it's a round world, that they need to keep in mind they're dealing with humans in their employees, and that even though the law does not require them to show respect, if they do respect their employees both sides will get along better and find themselves in court less often.

Nice sentiments, Stu!

Still, I wonder how effective this is. If Stu can counsel an employer, facing a legitimate issue regarding an employee, to mediate and settle -- rather than reflexively litigate -- he may be onto something.

Friday, October 26, 2007

Holy Crap!

Anyone else see this in the Herald this morning:

A longtime University of Miami Law School professor who teaches criminal procedure and constitutional law has been charged with soliciting an undercover officer for sex.

D. Marvin Jones, 56, was arrested Aug. 22 in Miami's Little River neighborhood.

Police said Jones drove his 2004 Mercedes-Benz sports car to the intersection of Northwest 79th Street and First Court at about 10 p.m. He approached an officer who was posing as a prostitute and offered $20 for sex, according to a police incident report.

Jones, a published author who has taught at UM since 1988, has been on sabbatical since the beginning of the fall academic semester.

Jones pleaded not guilty to the solicitation charge last month and has requested a trial, court records show. If convicted of the second-degree misdemeanor, Jones would face up to 60 days in jail.

Boy, that sucks. Professor Jones!

Note that the article does not identify the sex of the undercover officer. Does anyone know more about the circumstances of this arrest? Why is an August arrest in the paper now?

Thursday, October 25, 2007

Morgan Stanley Fallout Continues

The never-ending saga of Morgan Stanley's handling of email data in the Palm Beach suit brought by Ronald Perelman continues, in this excellent DBR story today:

The nation’s second-largest securities firm falsely claimed it lost the e-mail records when its servers were destroyed in the 2001 terrorist attack in New York City.

A high-profile Palm Beach Circuit fraud case brought by billionaire financier Ronald O. Perelman against Morgan Stanley uncovered the existence of backup e-mail files.

In the regulatory case, Morgan Stanley agreed to pay $12.5 million for the violation, including $9.5 million for a claimants’ fund and $3 million in FINRA penalties.

But that won’t be the last money the financial services giant will shell out for its indiscretion if plaintiff attorneys can help it.

Investors who claim bad advice from Morgan Stanley caused them to lose hundreds of thousands of dollars couldn’t prove their cases in arbitration without incriminating e-mails, attorneys say. They contend settlement payouts of $3,000 to $5,000 per claim doesn’t come close to making their clients whole again.

Attorneys intend to file new cases on behalf of claimants for spoliation of evidence and are gunning for punitive damages.

Attorneys for investors are banking on a line in a letter of acceptance, waiver and consent (AWC) in the FINRA settlement signed by Morgan Stanley stating it can’t take any action “denying directly or indirectly any finding in this AWC or create the impression that the AWC is without factual basis.”

Coral Springs attorney Darren Blum said all he has to do to prove his upcoming cases is walk into an arbitration panel waving the consent settlement, even though Morgan Stanley neither admitted nor denied the facts set out in it.

“You didn’t have a fair shot at a hearing because the documents that would have helped your case that [Morgan Stanley] told you were destroyed in 9/11 were either sitting in a warehouse in Brooklyn that [it] knew about and didn’t want to tell you, or 25 percent of those e-mails were written over so they were gone forever,” said Blum, of Blum & Silver.

Blum uses the eye-catching Internet address to direct visitors to his law firm’s Web site. He said his firm has already spoken to close to 100 clients and expects to file hundreds of lawsuits by year’s end.
Boy, the list of lawyers involved in this debacle continues to grow, from crusading Searcy Denney litigator Jack Scarola, to Kirkland lawyer Larry Bemis, to Carlton Fields attorney Joe Ianno. This article from last year provides much of the ugly background.

Meanwhile, here's Tew Cardenas litigator Lawrence Kellogg on the lost emails:

But defense attorneys insist plaintiffs must pursue the e-mail record if they want to receive more money on these claims.

“Not all e-mails hurt a defense case. Many e-mails help it,” said Miami securities defense attorney Lawrence Kellogg. “Just because e-mails were missing doesn’t follow that they were harmful to Morgan Stanley.”

To him, the more disturbing part of the settlement was Morgan Stanley’s failure to update its supervisory manuals. That combined with the “lost” e-mails and discovery violations in the Perelman case could be problematic.
I don't know about this. You can certainly go back and ask for an inference if a certain percentage of the emails were lost. That's the essence of a spoliation claim, in addition to damages and/or sanctions depending on the circumstances for why the emails were lost. Whether Darren has overstated this value of the claims or not, it's certainly a problem for Morgan Stanley and one that needs to be litigated.

Pick the best test case and go for it.

Wednesday, October 24, 2007

Susan Aprill Wins Another One

This time the UM grad and Fowler White attorney is doing God's work:

Two years ago, Frank Ordziejeski heard a $175,000 offer over the phone from a Boca Raton real estate agent he had never met.

"He was very excited. He thought it was a fortune," said his attorney, Susan H. Aprill.

From Indiana, Ordziejeski signed and faxed back the contract agreeing to sell his Deerfield Beach home for that amount. Five days later he found out through appraisers his house was worth closer to $300,000.

Ordziejeski tried to back out of the contract, but Freudenberg sued, claiming breach of contract. Ordziejeski countersued claiming Freudenberg took advantage of his lack of knowledge of Florida real estate prices.

"If you are away 1,200 miles you don't read the papers in Florida. You don't know what's going on," Aprill said.

Freudenberg claims that's not what happened at all.

"I gave him the base prices. He agreed," he said. "Nothing I ever said to this man was not true."

But the jury two weeks ago found that Freudenberg acted with "unclean hands" on the matter. The verdict means Ordziejeski can keep the house he bought for $48,000 in 1988.

Aprill says her client's original idea was never to sell it. A plumber by profession, Ordziejeski had moved to Indiana to take care of his elderly parents. A new tenant for his Deerfield Beach home is what he was looking for when he got the "unsolicited offer."

"He got swept away with the sale pitch," Aprill said. "He was also very naïve."

"It's like once he signed Dave said: 'gotcha.'"

Freudenberg said Ordziejeski originally called his Village Point Realty office, saying he wanted to sell the one bedroom, one bathroom house.

"I don't want to own this thing anymore. How do I sell it?" Freudenberg claims Ordziejeski told him. Freudenberg said Ordziejeski also lied about having another offer so that the real estate agent raised his original offer of $150,000. He did, to $175,000.

Freudenberg said the owner agreed and Freudenberg said he then put money into surveys, inspections, financing the property and having appraisals done.

Then came the call from Ordziejeski calling everything off because two appraisers told him his home was worth much more.

"I've seen them. I see appraisals done all the time. We got it appraised at $179,000," Freudenberg said. "If someone tells me this was ever worth $300,000 ... give me a break. It never was."

Freudenberg said he pursued the lawsuit for two years to recover the money he spent in putting the agreement together.

"I don't want the house," he said. "All I was trying to do was enforce a contract that was properly drawn up and signed."

So Susan won the jury verdict on her client's counterclaim?

Again, the law of unintended consequences rears its ugly head. Freudenberg's claims sounds fishy -- he got a call out of the blue, and then rather than list the property he offers to buy it himself? If he did do what was alleged, he should have allowed the deal to crater and moved on.

Tuesday, October 23, 2007

Joe Schwartz Gets the Love

The Miami Herald profiles downtown legend and North Dade denizen, court reporter Joe Schwartz.

Joe Schwartz, 66,

court reporter

Miami Shores

Holding court: Tennis opened a lot of doors for me. I started at an early age, played in high school and earned a four-year scholarship to the University of Miami.

Up and at 'em: When I wake up in morning I walk from my house to the bay. It takes me 35 to 40 minutes. I clear my head and stretch when I get to the bay. In my early years I walked all the time, working downtown in the court system every day. Now I work three days a week.

Gym time: They have personal trainers to guide you at Body Preference. When they're stretching you, you're not thinking about anything else except survival. I do light weights, ab exercises and cardio, too.

Good stuff: For breakfast I have orange juice and oatmeal or cereal with a banana. That carries me to lunch. I stop by Subway for a turkey sandwich. I have dinner at Here Comes the Sun, a health restaurant. I'll have salmon or flounder, steamed vegetables, sometimes brown rice, salad. Everything there is extremely healthy.

Cancer diagnosis: When I got prostate cancer I chose radiation, which meant 10 minutes a day, five days a week, February through April.

In treatment: I met a lot of people who were depressed, lethargic. I always tried to make them laugh. After my treatments I would go to the gym, play tennis have dinner.

Gentlemen, listen: Unless you go to the doctor you don't know if you have certain diseases. Most people won't say, 'Hi. By the way, I just finished my prostate cancer treatment.' Thank God, I found out about it. Get yourself checked out. Raise the awareness. If it weren't for the wives and girlfriends who make the appointments, men wouldn't go at all. Then they'll wake up one day and and hear, `You got this serious problem. You should have come here six months ago. Now I can't help you.'

Joe is one of the nicest guys you could ever meet, always pleasant and smiling, smart as a whip, handy with a bagel. Most mornings you can find him at Granny's, enjoying the oatmeal as he plans for his next tennis victory later that afternoon. He is an inspiration to many of us, it would be hard to practice downtown without him.

Kudos, Joe, for the great story, stay healthy, wealthy and wise.

Thank You Merco Group

Boy, according to this DBR story, troubled developer Merco Group is keeping a lot of local attorneys employed, including Miami litigator Moises T. Grayson. Moises filed a foreclosure action against Merco relating to a West Palm Beach condo project, Palladio Terrace, that has not gotten off the ground. The case is before Judge Colbath.

In addition, the DBR reports:

Merco also ran into trouble at its Deauville condo-hotel in Miami Beach. The company has agreed to settle a class action lawsuit by allowing about 90 contract holders to buy at prices set in their contracts in 2004 and 2005. Merco tried to return deposits and call off sales.

Merco is awaiting an appeals court decision on its proposed Brisas Del Rio condo project on the Miami River in Miami, but the 3rd District Court of Appeal found flaws with city approval of two other condo projects on the river.
With Eastern Financial as a client, Blaxberg Grayson should be very busy chasing foreclosures and dealing with the mortgage fallout for the next few years.

Monday, October 22, 2007

The Problems With Suing the State

Poor Bobby Gilbert has to actually try the canker case against the State of Florida, and by all accounts he is doing a bang-up job:

Pete Timmer, who retired in May after 29 years of work at the University of Florida's Citrus Research and Education Center in Lake Alfred, said in a video deposition taped in September that he suggested as early as 1998 that it would be difficult to eradicate canker, a bacterial disease that mars fruit and weakens trees.

Timmer's deposition was played Thursday in Palm Beach County Circuit Court during the fourth day of a class-action lawsuit being tried to determine the state's liability and whether the state's compensation was adequate for backyard citrus owners who lost their trees during the failed 11-year canker fight.

Timmer testified for the plaintiffs in the suit brought on behalf of more than 40,000 Palm Beach County homeowners whose 66,468 trees were removed as canker officials attempted to stop the disease's spread.

The homeowners are seeking additional compensation beyond the $100 Wal-Mart vouchers offered for the first tree and $55 cash payments for each additional tree.

The trees were removed under a policy that became law in 2002 and required all citrus trees within 1,900 feet of an infected one be taken out, even if they were healthy or showed no symptoms of infection. Prior to 2000, only trees within 125 feet of an infected tree were destroyed.

That meant an expansion of the removal zone from one-third of an acre to 260 acres, lead plaintiff's attorney Robert Gilbert said Thursday.

Under questioning by Gilbert, Timmer said he became convinced the program should be stopped after the devastating hurricane season of 2004.

"At that point I did not see any point in continuing the program," Timmer said.

Deputy Agriculture Commissioner Craig Meyer also testified Thursday, as Gilbert sought to show that the state knew that canker was already widespread before it implemented the 1,900-foot rule and that it anticipated legal challenges to the policy.

Meyer said he considered canker widespread in two counties at that time - Miami-Dade and Broward - but not in five others where pockets of canker were found.

Gilbert questioned Meyer about the state's position that fresh fruit shipped from a packinghouse is highly unlikely to spread canker.

"Our position is that fruit properly processed and sanitized poses no threat for the transmission of citrus canker," Meyer said.

Meyer also acknowledged that the Florida Department of Agriculture has never had an eradication program aimed at other citrus diseases such as greening, black spot and tristeza.

"I believe there has been a dramatic overreaction to greening," he said. "I could be wrong."

It's fun and exciting to be in a courtroom presenting witnesses, but why is this case at trial? Because the State is not like a normal business, with cost/benefit calculations that must be taken into consideration, the State can pretty much defend a case like this with no concern for the costs or the potential consequences. Nothing comes out-of-pocket to the lawyers defending this case, or their client, so they can afford to take a case like this to trial before someone with a brain determines that it's probably best to resolve this and move on. By that point, of course, Bobby will probably get a big verdict and the price of resolution will have gone up substantially.

Friday, October 19, 2007

Clash of the Titans

Big legal battle brewing between HMO attorney Harley Tropin and his cast of thousands, on the one hand, and Paul Geller, on the other, over an objection Paul filed in the pending Blue Cross Blue Shield HMO settlement. Paul is objecting to the settlement wiping out his 2005 state court case, which deals with a narrow Florida statute that prescribes how Florida HMOs must pay for non-participating Florida emergency service providers.

Admittedly, I am only getting one side of this story, having only read Paul's 38-page objection. It does not appear from the docket that Harley's team has filed a response yet.

Still, Paul sets out an intriguing, if not compelling case. From his pleadings, he argues that the BCBS settlement wipes out his suit, which is against a entity that is not an actual defendant in Harley's case, and which deals with a narrow Florida statute that was never the subject of Harley's litigation. Further, Paul complains that no remedy is provided to the class for violations of that Florida statute, and no injunctive remedy included to stop the offending conduct from continuing in the future. Still, I doubt Harley simply decided to steamroll over Paul's claim -- there has got to be something more to this.

Judge Moreno has set a case management conference for November 14, where presumably Paul's objection, among others, will be heard.

BCBS's local attorney, Steve Siff, will be crowned a genius if he is able to kill two birds with one stone, as Paul alleges. But query, why not bring Paul in to the deal, modify the settlement to properly account for this claim, and get this wrapped up for all concerned?

Why give Judge Moreno all this tsurris before Thanksgiving?

RIP Judge Esquiroz's Mother

Judge Esquiroz's mother, Maria Luisa Martinez Esquiroz, passed away yesterday. She was 93. From the obituary in the Herald:

A viewing will be held at 6 p.m. Friday at Caballero-Rivero-Woodlawn Funeral Home, 3344 SW Eighth St.

Services will be at noon Saturday at the Church of the Epiphany, 8235 SW 57th Ave., followed by burial at Woodlawn Park North.

Thursday, October 18, 2007

Michael Schlesinger Settles Condo Suit

Brash bad-boy Mike Schlesinger finally settles that Deauville Condo suit:

Under the settlement terms, all plaintiffs are eligible to purchase Deauville units they put under contract in 2004 and 2005, said plaintiff lawyer Michael Schlesinger. Depending on whether they originally agreed to cancel their contracts, they also can opt to get their money back or split a $75,000 payout from Deauville Associates.

Merco executives did not respond to interview requests.

Metz and two other investors signed a $175,000 contract for a one-bedroom Deauville unit in July 2004, then saw their deposit money returned when the developer called off sales. He thinks it's worth about $500,000 now.

Other plaintiffs aren't quite as bullish on the current real estate market, or at least have had a change of heart about buying into the Deauville. Schlesinger said some of his clients won't close -- thanks in large part to the difference three years have made.

2007 VS. 2004

''It's a different situation than in 2004,'' he said. While many counted on flipping condominiums then, now buyers are much harder to find. ''Maybe they don't have the money to close,'' Schlesinger continued.

Humm. Is this the one with Harley's firm, with Dorta defending, that was arbitrated before Mike Hanzman?

Doesn't seem like that great a settlement, but the market is in the crapper anyway, so maybe this was the best they could do.

And Mike -- get to work on that website, dude.

Tuesday, October 16, 2007

Workin' For a Living

Taking Wednesday off, have to go do a little business.

Will be back fresh Thursday morning!

Re-Reading the Sharper Image Opinion

Having had some time to review the docket and some of the key pleadings in the Sharper Image order by Judge Altanaga, I have come to blame Bob Parks less. Reviewing the November 2006 affidavit of Christopher Payne, the Texas lawyer who had the certified nationwide class ready for trial in California, it appears that Parks was, as he told Payne in a telephone call about the Miami settlement, "just local counsel." He told Payne to "go talk to the Alabama lawyers" about the settlement that wiped out a pre-existing certified, nationwide class set for trial.

Incidentally, the California lawyers were charged $260k by Sharper Image to run notices in their catalogs.

But it does seem that the California lawyers, who had an Executive Committee set up and were preparing the matter for trial, were really "frozen out" by the Alabama firm who spearheaded the Miami settlement. Now Parks lent his name and credibility to the settlement, particularly in front of the Court, but he may not have had all the details in front of him as he assented to the actions taken to wipe out a colleague's nationally certified class.

I also think Judge Altonaga has to share the blame. Right from the get-go, when Parks presented the settlement for preliminary approval in November, she was aware of the existence of the California case, yet she approved the settlement (slightly revised) days later. She was also aware of the very weakened bargaining position that Parks negotiated from, which she criticizes in the "procedural unfairness" component of her opinion, yet she allowed the process to continue. Why not stop it in real time? If she knew Parks was negotiating from a position of weakness, and she knew Mike Tein and his California crew had a certified class ready for trial, why did she allow the Miami attorneys to continue to tinker for another year with the deal? As she concluded, by the Third Amended Settlement Agreement, the deal was a "near-perfect" coupon settlement, but she denied it because of facts she was aware of a year ago -- that the Miami case should really have been abated, that Parks had no bargaining position of any value, and that the Defendant had selected the weakest link in the chain. In other words, no improvements to the deal would have rendered it acceptable, based on facts and circumstances that the Court was well-aware of a year ago.

I suppose one could say she allowed the process to continue so that the record could be as complete as possible, including affidavits and depositions from experts on all sides, contentious discovery, and a two-day evidentiary hearing.

Boy, the plaintiffs' lawyers on all sides spent a bundle on this one. Where is the payday if, as argued by Sharper Image and Parks, this defendant is near bankruptcy?

On balance, the Alabama attorneys did Parks no favor. They played cutthroat with the California attorneys, leveraging Bob Parks' reputation in the process. It is unclear how much of the relatively modest $1.85 million pay day Parks was slotted to receive, but it is now clearly blood money, soiling an otherwise exemplary career in its final stages. That's something that takes a lifetime to build, but no time to lose.

South Florida Lawyer Roundup

Lots of lawyers in the news today. Alan Greer's client, prominent banking attorney Carlos Loumiet, went on the stand yesterday in the Treasury proceeding regarding failed Hamilton Bank. Sources say Carlos help up ok, not great, but that the prosecution is nowhere near being finished.

I'm not sure Greer's central message -- that this is a "death penalty" case for Loumiet, resonates. Why focus on the consequences of an administrative finding of wrongdoing, rather than whether or not there was wrongdoing in the first place? But then that's why Alan earns the big bucks.

Meanwhile, the law of unintended consequences has arisen to bite Miami lawyer John K. Shubin, and his client, The Related Group, firmly in their well-heeled posteriors. As part of their "aggressive" litigation strategy, The Related Group has been suing various enemies -- real and perceived -- all over town, including Miami City Commissioner Marc D. Sarnoff. The suit against Sarnoff deals with an allegedly defamatory internal memo that Sarnoff prepared.

The suit, of course, brought incredible attention on the memo, which naturally -- in the course of a defamation suit -- has to be part of the public record. Or maybe John knows something we don't.


Rushing to voluntarily dismiss the suit in order to maintain the document confidential, Shubin has shown us -- and our clients -- that lawsuits have a way of spinning off in directions no one can predict, and that are hard to control.

Voluntary lawsuits are like voluntary wars -- do not bring them unless you are absolutely certain of the outcome, and even then, think twice.

Monday, October 15, 2007

Richard Milstein Wants $200,000

Akerman Senterfitt attorney Richard Milstein is seeking $200,000 for his work as guardian ad litem to Anna Nicole Smith's baby:

The Miami lawyer who was guardian ad litem for the late Anna Nicole Smith's infant daughter for three weeks earlier this year is seeking nearly $200,000 in fees from the child's dwindling trust fund.

Baby Dannielynn's father, Larry Birkhead, and the executor of Smith's estate, Howard Stern, are battling the suit.

Calling the fees ''unnecessary, unauthorized, unreasonable and excessive,'' the two filed a complaint in a Broward County court to stop attorney Richard Milstein from collecting.

Now there's nothing wrong with seeking fees for all the hard work put in, but I found this statement from Akerman to be a little tone-deaf:
Robert Zinn, president of Akerman Senterfitt and Milstein's boss said: ``We believe there is no basis whatsoever for the objections to our invoices, given the complexity of the issues, the large number of interested parties and the extremely short time.''
How about: "We were fortunate to be able to assist Dannielyne when called upon by the Court, and believe we greatly assisted her in her time of need. Our fee reflects the hard work put in by a team of attorneys over an intensely compressed period of time, and is a substantial discount from the amounts we typically bill clients for services of this kind."

It looks as if the $200,000 will completely exhaust the remaining monies in the trust:

In February, when Smith died of a drug overdose at the Seminole Hard Rock Hotel & Casino, the Dannielynn Hope Irrevocable Trust was established to pay for Smith's funeral. The rest was supposed to support the 1-year-old girl as her mother's $500 million inheritance is litigated.

The trust's revenues, according to legal records, came from media that paid for ''exclusive'' interviews and a seat at the funeral. According to court papers, $200,000 is left. Milstein wants $175,000 for his guardianship work and another $22,000 for being the fund's trustee. That role, Barth said, is a conflict of interest.

Now listen. Richard Milstein and Akerman do not make any real money from this type of pro bonoesqe representation. It is in the public interest (guardian ad litem representation) and a high-profile case like this has its own rewards. Why not work out an acceptable number and give this a quiet win-win ending?

Instead, you have another case that makes it seem that lawyers (wrongly) are greedy and charge the needy and unfortunate too much money.

As for soundbites, it's hard to beat this one from Howard K. Stern's attorney Krista Barth:

``That's $900 an hour! People believe the baby is rich. Couldn't be further from the truth. Mr. Milstein even charged for another lawyer at his firm to go to Anna's funeral.''
See, Robert Zinn? That's how you do a soundbite for a newspaper. She worked in that the kid is not rich (who knows if that is true), that it is a super-large fee, and even threw in an irrelevant factoid about another lawyer attending the mom's funeral (there's probably a very good reason for this, but that will never make the papers).

Go Bobby Gilbert!

Opening statements commenced today in the class action brought by Palm Beach County homeowners whose citrus trees were eradicated by the State of Florida:

The Palm Beach County case is the first of five pending lawsuits against the state -- including ones in Broward and Miami-Dade -- to go to trial over efforts to stop the spread of canker. The disease can be transferred by birds, humans and wind, makes fruit blemish and prompts it to drop prematurely. It does not harm humans but threatened the state's citrus industry.

The program to eradicate canker through the removal of citrus trees began in 1995.

''This case is about the deprivation of private property in violation of our state Constitution,'' plaintiffs' attorney Robert Gilbert said. ``Regrettably, the state refuses to accept financial responsibility.''

All citrus trees within a 1,900 foot radius of one infected with canker were ordered destroyed -- even those in yards that appeared to be healthy. About 16.5 million residential, nursery and commercial trees were destroyed statewide, including more than 800,000 from the yards of homeowners.

The program compensated residents with $100 vouchers for the first tree cut down and $55 for each tree after, but has spawned lawsuits from angry homeowners who feel that wasn't enough.

The eradication effort ended in January 2006 after state officials and the U.S. Department of Agriculture, which was helping pay for the program, determined that the state's spate of hurricanes had spread the disease beyond containment.

Gilbert said none of the trees removed from the plaintiffs' yards were infected with canker.

''All of these trees were needlessly destroyed,'' Gilbert said.

The state was set to give its opening statements Monday afternoon.

Humm. How was the class defined without an individualized inquiry into whether or not each class member met the class definition?


Julie Kay reports that powerhouse litigator Ervin Gonzalez has been brought in, informally, to investigate concerns that mold at the old federal courthouse may have caused or contributed to Magistrate Judge Ted Klein's death last year of a mysterious respiratory ailment.

That should be interesting when Gonzalez has to next appear in front of Chief Judge Moreno, who has been the public face of the Court's response to allegations that the old courthouse may be a "sick building."

Anyone who was at last month's Dade County Bar Association luncheon, where Judge Moreno spoke and addressed the issue in the wake of the first Julie Kay article asserting the possibility of such a link, can see that the Judge's heart is in the right place and he is committed to addressing the issue fairly and carefully. But Judge Moreno basically said that Julie Kay had presented only one side of the issue, and that Magistrate Judge Klein was already sick and his death had nothing to do with mold issues in the building.

Meanwhile, Klein's longtime former partner, the vivacious and tenacious Rebekah J. Poston, brought Gonzalez in to investigation because, in her words, "the jury is out."

In addition to a wrongful death suit, possibilities exist for other personal injury actions as well as a class action suit on behalf of all employees who had to work in that building.

Anyone with further information can report it here, to

Friday, October 12, 2007

Analysis of Sharper Image Opinion

Ok, I've had a chance to read Judge Altonaga's stunning rejection of Bob Parks' proposed Sharper Image settlement.

The Judge wrote a thoughtful, impressive opinion, with substantial analysis and with copious citation to on-point authority. It will be a roadmap for any review of class action settlements in the Southern District, particularly any that include coupons. Indeed, by the time the third iteration of the settlement was presented to the Court, it had become in her words a "near perfect" coupon settlement.

The problem was that Parks settled cheap, as the Court noted. If those improvements were available by the time the third settlement agreement was reached, why weren't they available from the beginning? Mike Tein was able to get documents and communications between Parks and Sharper Image attorneys, and they revealed that the $19 coupon amount was pretty much pulled from thin air.

And she found that Parks was negotiating from a weak position, in that his case was a later-filed copycat case that was about to be abated by the Court in deference to Tein's earlier-filed, California action that was already certified as a class and was on the verge of trial.

To me, I have to ask why Parks would put his career and reputation, earned over decades of great trial work, on the line for $1.85 million? How could it be worth it?

Why didn't he reach out to Tein and include him and his group in on the settlement? Was this all about ego? Hubris? Certainly it can't just be about money.

Incidentally, I have heard from multiple sources that Tein was simply brilliant at the evidentiary hearing in August. I am so proud of him; congratulations for a well-deserved, historic victory.

Thursday, October 11, 2007

BREAKING NEWS -- Mike Tein Wins Big

Gets Court to reject Sharper Image settlement. 61-page order, more to follow.

(There, are you happy Paul Geller?)

Your Ticky-Tack Truck Is Parked Next to My Mega-Yacht!

Following up on Judge Schwartz' analysis-free edict regarding ticky-tack houses in Coral Gables and the unwanted trucks who park in front of them, the Third DCA once again returns to the curious habits of those who dwell in The City Beautiful.

This time, city resident Victor Bared had the unneighborly notion to park his 122-foot mega-yacht along his 100-foot seawall, thus placing 22 feet of the yacht's nose into his neighbor' Yife Tien's adjacent 100-foot seawall.

Now that's not very nice. But, according to the Third, in an opinion by former right-wing activist Frank Shepherd, this is perfectly legal, as the city ordinance in question does not bar such infringements as long as the mega-yacht is moored to homeowner's property.

You can read the opinion here.

So if Mr. Bared decides to purchase The Queen Mary II, he can park it along 900 feet of his neighbors' sea walls so long as it is moored to Mr. Bared's house?

I hope Tim Crutchfield, Mr. Tien's attorney, advises him to purchase a Monster Truck, with giant wheels at least 20 feet tall, so he can park it right outside Mr. Bared's mansion.

Wednesday, October 10, 2007

Alan Greer Battles Big Gov

'This is a professional death sentence.''

That's Alan Greer, in opening statements in his defense of prominent Hunton & Williams banking attorney Carlos Loumiet, formerly of Greenberg Traurig. The proceeding is before Treasury Department Administrative Law Judge Ann Z. Cook:

Holding up a three-page fax that Hamilton Bank received detailing how the Russian loan sales were connected to other securities purchases -- deals that later were proven to be illegal -- Straus tore the sheets apart to illustrate how Loumiet had intentionally separated the bank memo to mislead regulators.

But Greer insisted that no one knew that any crime had been committed when Loumiet did the reports and that bank officers lied to him as well as to the regulators.

He also noted that the banking attorney became involved after the investigation started, spending less than 10 hours on the investigation over a period of two months.

Greenberg Traurig has already settled the case with regulators -- agreeing to pay $8.5 million in penalties without admitting fault. But Loumiet, insisting he did nothing wrong, opted to go to trial.

Under administrative law rules, the trial will last about 2 ½ weeks and then recess before closing arguments are heard in November. The law judge's ruling is expected next year.

Anyone care to wager on the outcome of this one?

Monday, October 8, 2007

Blogging Advisory

Blogging will be light today and tomorrow, but will resume in full on Wednesday.

When the Very Rich Battle the Mega Rich

''Sometimes what happens is the parties end up getting the worst of both worlds,'' said Keith S. Rosenn, a law professor at the University of Miami. ``They have to litigate and arbitrate.''
The good ole Prof is describing an international arbitration dispute pitting Hogan & Hartson's Daniel E. Gonzales against The World's Richest Man:

Thomas A. Gordon, an investment banker turned Latin American investor, expected there would be minor legal wrangling after his company plunked down $16.5 million to buy international long-distance providers in El Salvador and Guatemala last year.

But Gordon never thought his fight to enforce a long-distance access agreement with El Salvador's main telephone company would lead to a bare-knuckles battle with the telecommunications conglomerate owned by Mexico's Carlos Slim, whom Fortune magazine now ranks as the richest man in the world.

Gordon's attorney, Daniel E. González, of the international law firm Hogan & Hartson, calls the dispute ``a fight between David and Goliath.''

Let me tell you what -- this "David" must be pretty darn wealthy because Dan is a great attorney, tenacious and dedicated, but he doesn't exactly work cheap. Should be an interesting dispute to follow. Apparently Dan's $9.4 million arbitration award has wound up before Judge Moreno:

In mid-July, CTE petitioned a civil court in San Salvador to annul the decision, arguing that there were procedural defects and that the dispute should not have been subjected to international arbitration rules in the first place.

International arbitration groups such as the American Arbitration Association, CTE attorneys contended in a court filing, had no authority in El Salvador.

Unaware of the legal maneuvering in San Salvador, some days later, Gordon's attorneys filed a petition in federal court in Miami to obtain a judge's order to collect the money. Under international arbitration treaties, a judgment in one country can be collected in any country where companies have holdings or bank accounts. The final arbitration session in the case also was held in Miami.

On Aug. 21, U.S. District Judge Federico A. Moreno confirmed the $9.4 million judgment for Americatel El Salvador. But once Moreno learned that there was a competing motion filed in El Salvador, he called attorneys from both sides for a Sept. 14 hearing to try to better understand the dispute.

''Why did you participate in the arbitration? It took you 2 ½ years to say time out?'' Moreno asked Angel Castillo, an attorney with Ogletree, Deakins who represents CTE. ``What did you think happens in an arbitration? One of you was going to win.''

I love the way Judge Moreno boils complex legal disputes down to a simple, yet effective, question, delivered in a folksy, humorous, respectful tone. We are darn lucky to have him as our Chief Judge.

Friday, October 5, 2007

Michael Olin Shakes Hands With Michael Hanzman

Well, the Herald comes late (as usual) to the long-awaited settlement of the epic struggle over the sale of the Bal Harbour Club:

Joseph Imbesi's Bal Harbour Club paid $90 million this week to cancel the sale of its valuable oceanfront home.

The settlement comes after nearly a decade of litigation over the six-acre site in one of Florida's most prestigious locales. A Canadian home builder signed a $36 million contract in 1995 to buy the land, then saw that deal start to unravel when Imbesi and partners took control of the club by purchasing all its membership interests.

A marathon court battle followed, one that preceded South Florida's historic real estate boom and just barely outlived it. Lawyers for both sides said the current depressed housing market complicated settlement talks, since it became harder to determine how much the prime locale was worth.

Still, real estate analyst Michael Cannon said the final payout makes the land some of South Florida's priciest.

''Ninety-million?! Holy [cow],'' said Cannon, whose real estate column appears in The Miami Herald.

Now maybe they can go back to golfing together at Westview and moving on to the next case they can work on for nearly a decade.

Thursday, October 4, 2007

The Dangers of Toe Tapping

For those of you who are interested, here is the MN court's denial of Senator Craig's motion to withdraw his guilty plea. Very by-the-book and well-reasoned.

Hint to 3d DCA -- take a peek please....

Dirk Lorenzen Saves Rush Limbaugh

Yesterday, the Third DCA, in a per curiam opinion, denied the Palm Beach Post's motion for rehearing and certification regarding Rush Limbaugh's marital settlement agreement. Read the opinion here.

Rush was represented by froggy-voiced divorce attorney Dirk Lorenzen (who may or may not still be at Al Caruana's law firm) and Bruce Christensen. Martin Reeder represented the Post.

The Third also denied the Post's motion for a written order. Nice.

Judge Cope's dissent makes it obvious that Rush was the beneficiary of yet another outcome-determinative, logic-free 3d DCA opinion. Apparently Rush and his former wife had the trial judge receive the marital settlement agreement, review it, initial it, and make findings about it in the hearing on the petition for dissolution of marriage. This was done, by the way, in the course of the judge's adjudication of the petition for dissolution of marriage -- not while the judge was having lunch at La Loggia. The attorneys, however, purposely did not file the agreement in the court file.

Yet the brain trust of Judges Suarez and Cortinas determined that the settlement agreement was not a public record. Not a public record?

I don't know how Dirk pulled that one off, but that's one amazing victory for his client, one more absurd legal ruling for the rest of us.

Wednesday, October 3, 2007

Alan Rolnick -- Author/Filmmaker

Watch out Jim Grippando -- Sacher Zelman litigator Alan Rolnick is nipping at your heels.

Alan's new book, Landmark Status, just hit the streets and it promises to be a very interesting read. From Amazon's page on the book comes this blurb:

Landmark Status careens madly through a subtropical tangle of legal actions, spirits, spells, kung fu, car wrecks, football, phobias, fetishes, wooden flutes, pet rabbits and vintage aircraft, while the fate of Miami's famed Century Club hangs in the balance. Once a notorious nightspot, the Club just awoke from decades of slumbering decay-thanks to a local building boom. Now everybody's scrambling to bury it under a fabulous high-rise.

Lawyer Benjy Bluestone couldn't care less, but a client owns the Club and seeks his help. It gets easier to say yes when he learns that beautiful broker Delia Torres is involved, even though she represents a developer who's furious to find the Club's been optioned to a rival. Benjy and Delia soon discover her client will stop at nothing to turn that option into "something so ugly the tide won't take it out." Racing the clock, they join forces on the road to Opa-locka, where a violent confrontation threatens to blow the deal sky high.

"Move over, Carl Hiaasen! This brilliantly funny romp through the 'real' Miami will have you howling with laughter and booking your trip to South Beach. You're gonna love it!"

-Michael Levin, author of Soft Target

About the Author
Alan H. Rolnick grew up in a sleepy river town playing baseball and Beatles songs, wishing he lived someplace different. Twenty years of law practice in Miami, whose heart-stopping beauty and self-absorbed chaos challenged him daily to figure out where on earth he was, left no doubt he’d gotten his wish.

Alan's been busy lately. He is also the Executive Producer of a new indie film coming out in October, Canvas.

Congratulations Alan -- we wish you much success with the book and the film!

Tuesday, October 2, 2007

Man Down! Man Down!

Class action attorneys Steve Berman and Tom Sobol, and their law firm, Hagens Berman, are not unknown to South Florida litigators. Some of us have litigated against them. We have seen them file cases in South Florida courts, and team up on occasion with South Florida attorneys to prosecute class actions that are national in scope. For example, Steve Berman teamed up in 2001 with generally-good-in-all respects lawyer Sam Dubbin to prosecute the Nazi Gold Train case before Judge Seitz. That matter was settled on favorable terms back in September 2005.

That's why this filing today by Philadelphia lawyer Don Haviland is such a shocker. The background is that there is apparently a dispute regarding leadership in the massive and closely-watched AWP litigation in Boston. The federal judge in Boston had appointed a few firms as co-interim class counsel, including Hagens Berman and Don Haviland's former firm, Klein & Specter. Apparently, Haviland and his former firm had a parting of the ways, giving rise somehow to a motion by Hagens to remove Don Haviland as co-interim class counsel.

I can't give you all the bloody details, you have to open the Pacer link and read it yourself. Personally, I think Haviland's filing is a disgrace. I don't believe a word of it and it does a discredit both to him and his profession.

Separated at Birth?

Stack Fernandez litigator Brian Stack and sports journalist Nick Bakay.

Carnival Wins, Rest of Us Lose

The Supremes refused to hear mensch-in-training David H. Pollack's petition from a February Florida Supreme Court ruling that concluded that cruise lines are not liable for the malpractice of on-board physicians:

'It's a blow to cruise line passengers,'' said David H. Pollock, a Miami attorney who represents the family. ``I think for people who are ill or may become ill, it's a reason to think twice about taking a cruise.''

Here's the background:

The trial court dismissed Carlisle's case against Carnival, but the Third District Court of Appeal in Miami reinstated it in 2003, finding that the doctor was the ship's agent, and therefore the line could be held liable for his actions.

However, that decision -- which was based on a single, old case in northern California -- was at odds with most federal maritime decisions, which say that cruise lines aren't responsible for their doctors' actions.

The Florida Supreme Court, saying that federal maritime cases must be treated uniformly, threw out the case against Carnival in February, even though it agreed that the passenger's argument about the cruise line's indirect responsibility made sense.

Like Bork and Bill Frist, it's easy to be a tort reformer until you or someone you love gets injured by corporate malfeasance or neglect. That's when you get surprised how difficult and expensive it is to hold corporate defendants responsible for their misconduct.

Monday, October 1, 2007

John Timoney Hired A Good Lawyer

I see that Becker & Poliakoff's Miguel Diaz De La Portilla is representing Miami Police Chief John Timoney before the Miami-Dade Ethics Commission in its investigation of Chief Timoney's free use of a luxury Lexus SUV.

I am sure that Miguel is charging his client rack rates. Anything else would be unseemly.

Joe DeMaria Wants to Arrest, Prosecute, Convict, and Execute Traffic

Tew Cardenas litigator Joe DeMaria wrote a letter to the Miami Herald Saturday, complaining about South Florida's traffic woes.

Joe's solution: single-handedly strangle with his bare hands all those who would dare to deny his climate-controlled, GPS-coordinated Lexus safe and speedy passage to Pinecrest, and dance on their graves to make sure that they're dead. Any questions?

Oh, he doesn't like text-messaging while driving either. You have been warned.