Friday, March 28, 2008

Hy Shapiro To the Rescue!

Would you buy decades-old Hungarian or possibly Chinese ammo from this young Miami Beach clubgoer? For $300 million?

Apparently the Pentagon did:

Oh, man. Not cool. Not only has the Army suspended any further contracts for AEY (the shady contractor run by 22 year-old Efraim Diveroli), but the U.S. attorney in Miami along with Department of Justice prosecutors in Washington have picked up the case, The Miami Herald reports.

The probe launched as a result of an audit by the Army's Procurement Fraud Branch (it's unclear whether the probe launched as a result of The New York Times' inquiries), where officials determined that Diveroli appeared to have lied when he claimed that the ammunition he was providing came from Hungary when it in fact was made in China -- which he would have done because the Army prohibits using Chinese ammo.

If Diveroli did lie to the government, that would be a crime. You can read the Army's audit letter, in addition to the letter to Diveroli suspending his ability to win any further contracts, here.

The Herald also uncovered a second arrest for Diveroli: one for drunk driving earlier this month. That's the mugshot above. The earlier one, as the Times reported in the initial story, was for beating up a parking valet and getting busted with a fake ID (ironically just after his 21st birthday). The mugshot for that one is to the right. I guess sometimes the pressures of being a big time defense contractor are just too much.

But there is a silver lining. This kid had the good sense to hire Hy Shapiro, who sprung to his defense:

His Miami lawyer, Hy Shapiro, said Thursday his client's company received the suspension notice Wednesday but was awaiting further documentation from the Army.

"There's nothing I'm prepared to say right now," he said.

God do I love Miami.

Thursday, March 27, 2008

Not Enough Sex? Blame Your Blackberry

Ok, all you overexcited, undersexed office-dwellers, wondering why you cannot have sex more often, thinking about sex, fantasizing about sex, purchasing sex aids and little blue pills, slobbering over photos of the lovely Cocaine Princess yet glossing over her thoughtful, lyrical prose -- you can blame your Blackberry:

This month, Solutions Research Group, an organization that provides data to high-tech companies and also conducts surveys of our technology habits, published a report called “Age of Disconnect Anxiety.”

It found that 25 million Americans now use a so-called smartphone like a BlackBerry or Treo, and that 63 percent of you smartphoniacs have used the thing while you are in the bathroom.

But as disturbing as the previous image may be, here’s the one that ought to make you worry: Thirty-seven percent of laptop owners say they “frequently” use the computer in the bedroom. In all, 68 percent of Americans say they feel a sense of anxiety when they are not jacked into the global mind grid of the Net. This anxiety was defined as “feelings of disorientation and nervousness experienced when a person is deprived of Internet or wireless access for a period of time.”

It’s tough to look forward to, or enjoy, sex if you are anxious, but here’s something to make cell phone addicts even more anxious. In the January issue of the journal Fertility and Sterility, a group of researchers from the Cleveland Clinic reported that “use of cell phones decrease the semen quality in men.” Men using a fertility clinic were divided into four groups, ranging from no cell phone use to using the things more than four hours per day. The longer the men used the cell phones, the less he-man their semen. Sperm count, motility (how well our boys swim), viability (how alive they are) and normal morphology (how handsome they are) were all compromised.

A year ago, a team at the Medical College of Wisconsin exposed rats to six hours of cell phone emissions for 18 weeks and found that the rats’ own emissions went haywire. Specifically, their sperm “exhibited a significantly higher incidence of sperm cell death than control group rats.” Alarmingly, “abnormal clumping of sperm cells was present in rats exposed to cellular phone emissions and was not present in control group rats.”

Abnormal clumping? The authors offered sage advice: “These results suggest that carrying cell phones near reproductive organs could negatively affect male fertility.” While it may be good advice to avoid carrying your cell phone in the pouch of your jock strap, it is also good advice not to use the thing for six hours a day, especially if you’re a rat.

The whole issue of electromagnetic fields and their effects on health is controversial, to say the least. Web sites can be found blaming them for everything from leukemia to autism, yet there is very little scientific evidence for most of the claims of harm. Still, abnormal clumping?

There are signs, though, that even if cell phone use were proven to cause some harm, we wouldn’t give them up. We like our technology too much. Some of us like our technology more than sex.

You've got mail — in bed
Also this month, a British study sponsored by the Sleep Council, the United Kingdom’s bed industry group, declared “Brits Swap Sex Drives for Hard Drives.” Eight of 10 people, it said, boot up a variety of high-tech gadgets before bedtime. Almost one-quarter of respondents said they left their cell phones or smartphones on — using them as alarm clocks. One in three sends or receives text messages or e-mails while in bed.

In other words: you are all a bunch of pigs, emailing each other in the toilet, neglecting your spouse and surfing from your bed, while your semen dries up, your balls shrivel, and your sex drive decreases.

But at least you can weigh in at 10:30 at night on that crappy brief some flunky drafted.

Podhurst Orseck Files Brazilian Air Crash Suits

In a major coup over highly coveted clients, Podhurst Orseck has filed suit on behalf of 59 victims and their families over Brazil's worst air disaster:

Relatives of victims of Brazil's worst air disaster have filed suit in Miami seeking damages in 59 wrongful death complaints, attorneys said in a statement Wednesday.

Plaintiffs are seeking a jury trial to recover financial damages for pain and suffering, lost value of life, funeral expenses and other damages related to the crash of TAM Airlines Flight 3054, which killed 199 people.

The TAM jet went off the runway as it attempted to land at Congonhas Airport in Sao Paulo, crashing into an air cargo building on July 17.

Attorneys said the lawsuits charge TAM S.A. (TAM), its pilots and maintenance personnel with negligence. They also name France-based Airbus; Goodrich Corp. ( GR) of Charlotte, North Carolina; International Aero Engines AG of East Hartford, Connecticut; and Pegasus Aviation IV Inc. of Delaware.

"Responsibility not only lies with the companies that manufactured and handled maintenance for the aircraft," attorney Steven C. Marks said in the statement.

These clients are in very good hands.

Any bets on who gets the defense work?

Wednesday, March 26, 2008

Hector Chichoni Joins Epstein Becker

Anyone else see that Hector Chichoni has followed Joe Klock over to Mike Casey's shop:

Nationally known immigration attorney Hector Chichoni has joined the Miami office of law firm Epstein Becker & Green, the Firm announced today.

"Chichoni’s extensive experience will bring additional depth to the Firm’s Immigration Law Group in South Florida, while adding to our existing substantial national resources in this growing area of the law," said Michael W. Casey III, Managing Shareholder of the Miami office. "Here in South Florida we are seeing an increase in our clients’ needs for knowledgeable counsel on complex immigration issues, and Hector will be invaluable."

Chichoni joins the Firm from Squire, Sanders & Dempsey L.L.P., where he was a principal in the immigration practice group.

Slowly but surely they are filling up all that expensive former SHD office space.

Congratulations Hector!

Tuesday, March 25, 2008

Brian LaBovick Helps Grow Indian Legal Economy

We all know that major coding and document review jobs are frequently outsourced, but what about legal work? Brian LaBovick is sending his grunt research jobs to lawyers in India:

By outsourcing some of his research tasks to India, Jupiter attorney Brian LaBovick saves as much as half on what it would cost to have the work done by legal professionals in the United States.

The managing partner of the six-lawyer firm LaBovick & LaBovick uses Bangalore, India-based Kamath Legal Solutions, which employs attorneys and paralegals educated in India to perform such tasks as legal research and document preparation.
Brian says the quality is high and the work product good. What say you? Has anyone done this before, and how has the experience been?

Monday, March 24, 2008

News of the World

Boy it's nice to open up the paper and read some good news for a change:

For a peek inside an economic slowdown, step into downtown Miami's Burrito Express and look for sandwich bags and tinfoil.

''They're bringing their own lunch,'' cook John Sierra said as he stood by an idle grill. ``They're not spending the money. People will come in, ask for a drink and eat their own lunch.''

With sales down for the year, Sierra has watched his parents' restaurant suffer through an economic slowdown punishing businesses throughout South Florida.

To measure the fallout, Business Monday recently dispatched eight reporters to survey 151 shops, restaurants and salons on how their sales are shaping up this year.

The results: a broad consensus that South Floridians are cutting back on spending and that tourist dollars aren't making up the difference.

But sandwich bag sales are up!

Then I read George Will's column on Sunday, and thought that perhaps the apocalypse was upon us, and that the Grim Reaper had finally extended his cold dark fingers into my soul, because for once I actually partially agreed with him:

The denial of annual increases, Roberts wrote, "has left federal trial judges -- the backbone of our system of justice -- earning about the same as (and in some cases less than) first-year lawyers at firms in major cities, where many of the judges are located." The cost of rectifying this would be less than .004 percent of the federal budget. The cost of not doing so will be a decrease in the quality of an increasingly important judiciary -- and a change in its perspective. Fifty years ago, about 65 percent of the federal judiciary came from the private sector -- from the practicing bar -- and 35 percent from the public sector. Today 60 percent come from government jobs, less than 40 percent from private practice. This tends to produce a judiciary that is not only more important than ever but also is more of an extension of the bureaucracy than a check on it.
So federal judges are badly unperpaid, but how about our state court system? Rumpy cogently explored this issue a few days ago, but I found this comment from Victor Crist to be flat-out laughable:
The committee chairman, Sen. Victor Crist of Tampa, said the justice had a legitimate concern, but that the judicial branch could be spared the most because courts and county clerks could raise court fines and fees and do a better job collecting them -- especially in Miami-Dade County, where millions haven't been collected in some years.
So let me get this straight: downtown workers are so strapped that they are bringing in their own sandwiches for lunch, the economy is in a deepening recession and millions are losing their homes, but Victor Crist thinks the County can recover fines and filing fees that have thus far been uncollected?

Just what did they put in ole' Victor's barbeque sauce?

Question -- if the federal and state criminal and civil justice systems are choked, shriveled, and incapable of functioning properly, who benefits?

Answer -- those who can game the system.

Which leads to this question: who can best game the system, those who money, power, and access, or those who are bringing in their own lunches and who can't afford to pay a fine or get their car out of the repair shop?

Just asking.

Friday, March 21, 2008

Ahh, Fighting Over Origination Credit

Do lawyers still do that anymore?

Of course they do. A trial about to start in DC will shed some light into what can be a dirty little business and a major source of big firm frustrations:

It's been two and a half years since Douglas Rosenthal filed an $8.5 million suit against his former firm, Sonnenschein Nath & Rosenthal. But last week, the ex-Sonnenschein antitrust partner finally got the chance to start telling his story to a Washington, D.C., Superior Court jury.

The trial not only offers a rare glimpse into the inner workings of a major law firm's partner compensation policy, it also offers a chance to see some top litigators in action. Constantine Cannon's Gary Malone and one of its founding partners, Robert Begleiter -- both from New York -- argued for Rosenthal, while Michele Roberts, a partner in the D.C. office of Akin Gump Strauss Hauer & Feld, and James Hamilton, a partner in Bingham McCutchen's D.C. office, represented Sonnenschein.

Rosenthal (who is not related to the Rosenthal in his former firm's name) claims he wasn't fairly compensated for representing the families of those killed in the 1988 bombing of Pan Am Flight 103 over Lockerbie, Scotland. Rosenthal says that work brought the firm a windfall of $17 million. He also says he's owed origination credit for work the firm handled for Sun Microsystems that resulted in $20 million in fees.

20 million in fees for billable Sun Microsystems work?

Again, why is it the greedy lawyer myth only runs in one direction?

Thursday, March 20, 2008

Can Excusable Neglect Defeat Dr. Doom? Only the 3DCA Can Tell

Once again continuing in its fine tradition of ruling however it wants, using whatever rationale is convenient and seems to apply at the time, the 3d DCA extends the concept of "excusable neglect" so far that even Mr. Fantastic is impressed.

You can read the head-scratching opinion here. Listen I recognize that there is a lot of wiggle room in what is essentially something that is equitable in nature, but you can just feel the animus to the rogue homeowners seeping through in the opinion.

I guess the Third wants judges to just rule on the merits, forget the whole default judgment concept once somebody finally appears and wants to litigate the case, and they also want to see a lot of appeals on this issue.

Wednesday, March 19, 2008

Scott Dimond Has a Good Case; Alvin Davis Wants to Defend It

I kid I kid. Scott has lots of good cases, but this one seems exceptionally strong:

Miami's Astar Air Cargo claims it was defrauded by Merrill Lynch and is demanding the return of $9 million the carrier said is frozen in an investment account with the brokerage.

Astar also wants Merrill Lynch to pay more than $27 million in punitive damages, alleging in an arbitration complaint that the company invested in auction-rate securities based on Merrill Lynch's assurances that they were safe investments easily converted to cash.

But with the collapse in demand for the securities, Astar says its assets are tied up in illiquid investments it can no longer access.

Mark Herr, a Merrill Lynch spokesman, said the suit has no merit.

Astar's ''CFO is a sophisticated businessman who wanted higher yields than cash could give the company,'' Herr wrote in an e-mail. ``Astar knew it was trading liquidity for yield because its people discussed this and the risk posed by auction-rate securities before they purchased them.''

Dimond Kaplan & Rothstein, the Miami law firm representing Astar, said it is talking with dozens of other individuals and companies it says are stuck with auction-rate securities and expects to file similar arbitration claims in coming weeks.

Astar's claim was filed with the Financial Industry Regulatory Authority, which regulates securities firms.

''Astar is a victim of a brokerage making an unsuitable investment recommendation,'' said Astar lawyer Scott Dimond. ``Astar asked [Merrill] for something that was safe and liquid and Merrill hands them something that's not.''

Astar, which is 49 percent owned by Plantation-based express-delivery firm DHL, began investing in preferred shares of closed-end municipal bond funds in 2004. The interest rates on the securities are slightly higher than those on money-market accounts, Dimond said.

Astar said it invested, on average, between $20 million and $25 million through late last year. Dimond said Merrill promised to buy Astar's investments in the event the company needed access to its funds before the auctions -- which are typically held every seven, 28 and 35 days.

But auction failures multiplied recently as investment banks refused to step in to buy as they had in the past.

Dimond blamed that on banks' exposure to the subprime mortgage crisis. Bloomberg News reported last month that ``investors and borrowers never knew the extent that banks propped up auctions because of scant public disclosure of bidding.''

Yet another less-than-obvious result of the deepening subprime mortgage crisis, and resultant depression.

Still, if Alvin Davis is correct, this will be a very good time to be a defense lawyer in South Florida:

South Florida businesses and entrepreneurs who have been involved in the subprime real estate market and its ancillary investments should make haste. There is a chilling inevitability about the increase in securities class actions and related litigation that will follow the bursting of the subprime ''bubble.'' The financial losses have been great, and the suits brought by plaintiffs eager to recoup their losses will branch out to any and all parties who can be proved negligent.
(Yes, and please hire me to handle the defense work).

Tuesday, March 18, 2008

Jose Quinon on Ben Kuehne Indictment

I guess he's trying to be helpful:

If Kuehne is guilty of anything, it's of being naïve, said Jose Quinon, a solo Miami criminal defense attorney. Quinon represented Ochoa before Black, but withdrew from the case after failing to satisfy himself that the legal fees were entirely clean.

Quinon said Ochoa was ostensibly going to pay his legal fees through the sale of cattle. For Kuehne to travel to Colombia, where he does not speak the language, and oversee the sale of cattle was pure folly, Quinon said.

"Ben does not have street smarts," Quinon said. "What the hell does Ben know about cows? He's a city slicker. Ben doesn't do drug cases; he has no idea what the hell he is doing. They gave him documents and they were phony documents. He didn't know they were phony documents."
Another powerhouse story by our own Julie Kay.

They Write Scary Books

Along with fears about terrorists, fears about subprime mortgages, fears about lead paint in toys, high cholesterol, nervous legs, toxic cough medicine, 4-day erections, and falling cranes, Charlie Lipcon says you can add fears about cruise ships:

"More than 12 million people a year take cruises. What they don't know
is that the cruise lines only focus on their own bottom line, not on
keeping passengers safe," says Charles Lipcon, author of "Unsafe on the
High Seas -- Your Guide to a Safer Cruise," available in bookstores and
online at ($14.95).

"This book reveals all of the dirty secrets the cruise lines don't want
you to know about," says Lipcon, a leading expert in maritime law for over
30 years.

Lipcon explains the cruise lines make a profit of over $1 billion per
year, but do not pay a dime of federal income tax due to the "flags of
convenience" they fly. He says because their vessels are not registered in
the United States, cruise lines can avoid being subject to U.S. labor and
tax laws.

According to Lipcon, out of the 206 crimes aboard cruise ships that
were actually reported from 2003 to 2006, 86 percent were sexual assaults.
Lipcon says children as young as 12 have been lured into the bowels of the
ship and sexually assaulted by crew members.

Lipcon advises passengers to stay in public areas, set rules for their
children, use all locks on the cabin door and only drink beverages they
have witnessed being prepared.
Other than that, have a great time and really try to relax!

Monday, March 17, 2008

Happy St. Patty's Day!

Lift your glass with me to perhaps the finest version of Danny Boy ever:

Peter Sotolongo Update

We've previously written about Peter here and here. Finally, some good news: he just beat Curtis Mase in his first admiralty trial.

Anyone know the details?

Something Educational, For a Change?

Here is a link I was forwarded with 1-2 minutes snippets of mostly federal judges, including Supreme Court judges, commenting or advising on brief writing, oral argument, etc. No South Florida judges are interviewed, but it is still worth looking at a few of them.

Paul Singerman: Self-Proclaimed Workaholic

Is Paul Singerman the hardest working man in bankruptcy?

''We'd rather work a little bit harder for a little bit longer and not have people worried about their jobs,'' Singerman says.

Singerman starts his day at about 5:30 a.m. and works from home until about 7 a.m., when he breaks for a workout. He leaves for the office in downtown Miami at 8:30 a.m. and heads home about 12 hours later. He only worked 2.5 hours on a recent Sunday, he says, because it was his daughter's birthday.

Hey, I saw that movie!

Paul, we love you, but that is too rough of a day. So you work from 5:30 to 7 a.m. at home. Then you have a workout. Then you leave for work at 8:30 a.m and you head home around 8:30 at night. Presumably you get home around 9 p.m.

Where do you fit your wife and child into that schedule?

Friday, March 14, 2008

Bring Me the Head of John Rivera

Reports flowing in of the wonderful investiture elevating Miami-Dade County Judge George A. Sarduy to the circuit bench. Another quality appointment (thank you Governor Crist and Paul Huck, Jr.!).

Among many highlights, one had to be Florida and Dade County PBA President John Rivera, who unleashed an hilarious and heartfelt corker of a speech -- managing to entertainingly fit in one speech judicial corruption, greedy lawyers, obsure legal mumbo jumbo, how Judge Sarduy succeeded after being a high school dropout -- heck, he even stopped the speech to ask a "pretty lady" in the crowd out for a date. You should have seen Chief Judge Farina's face as this guy let it rip -- a good time was had by all.

Rivera was a tough act to follow, but Hector Lombana did fine, and of course Judge Sarduy gave an emotional, humorous, generous, and personal speech.

Congratulations Judge Sarduy, you are a quality choice (despite being an FSU Law grad) and we welcome you to circuit court.

Time for A Long Vacation

There are many attorneys in public life who I enjoy reading and writing about. In terms of sheer hilarity, I would have to put former North Miami City Attorney Barry Kutun near the top of my list.

It's not just the shocking lack of judgment, but the details were just so much fun. Alleged pictures, hush money, the fact that Kutun himself apparently had the affidavit documenting the allegations prepared (and notarized at North Miami City Hall), the wife, etc.

Oy veh, Barry!

So it is with a touch of sadness that we bid Barry good bye and farewell:

The Florida Bar on Thursday announced that the state Supreme Court has disciplined a former North Miami city attorney who pleaded guilty last year to charges related to having sex with a 16-year-old prostitute.

Barry Kutun, 66, will not be able to practice law until October 2009. His law license will be reinstated then, but he will be on probation with the court for three more years.

Kutun, a former state representative and candidate for Miami Beach mayor and Florida governor, was arrested in 2006 for having consensual sex with an underage prostitute at his mid-Miami Beach condo.

Hollywood authorities also took part in the investigation because some of Kutun's trysts with the teen happened in Broward County. Kutun had maintained he thought the girl was an adult.

Kutun was fired from his $170,000-a-year job as North Miami city attorney after prosecutors filed charges.

Kutun accepted an agreement with prosecutors last year in which he pleaded guilty to child abuse in exchange for house arrest and probation but no prison time. A judge withheld adjudication, which means Kutun is not a felon, but he was required to enter a sex-offender treatment program.

Kutun's attorney said in September 2007 that his client has no plans to run for public office again.

''His days of service to the community are over,'' attorney Richard Sharpstein said.

Spoken with such understatement, Richard. But please -- say it ain't so!

Thursday, March 13, 2008

How About That?

This is a true man-bites-dog story: an real live intelligent, well-reasoned, and persuasive opinion from the 3d DCA. Well, what do you know!

Judge Salter is already having an impact. In an opinion released yesterday, he plainly and simply walks us through the basic law on actual agency relationships, and then, heaven forbid, applies the law directly to the evidence, using specific examples to illustrate the legal principles involved. Shocking!

But I have no idea what Mark Raymond is talking about:

But BDO International attorney Mark Raymond had a different take, claiming the ruling allows BDO to retry the entire case from start to finish.
I love Mark, but that is what you call "shining a turd." The opinion could not be more clear:

"[W]e conclude that this record presented genuine and triable issues of material fact regarding the existence (or non-existence) of an actual agency relationship between BDO International and BDO Seidman."
Where does it say anything about retrying the entire case? Seems to me all that should be retried is the agency relationship question.

Wednesday, March 12, 2008

Thank You Kendall Coffey!

Some days it's hard to find material for the blog. My sources let me down, I'm busy, sometimes there's just not that much to write about.

Other days, you find gold.

For those living under a rock, there is a brewing scandal surrounding the prosecutor-that-could, former superstar NY AG Eliott Spitzer -- now Governor of New York -- and a slight hooker problem he has developed, courtesy of the feds.

Well, guess who has risen to speak out on the Spitzer scandal?

None other than our own, masticatory former US attorney:

Buck up, Eliot Spitzer. There's hope.

You aren't the first politician to be caught (spectacularly, we might add) in a compromising position. Witness the very man that CNN trotted out this morning to serve as a legal expert on your plight.


That man, on CNN;s Newsroom Tuesday, was Kendall Coffey, a Miami criminal defense lawyer and former U.S attorney. Coffey opined that as much trouble as the New York governor is in at the moment, it will only grow worse if it's discovered that Client 9 used public money for any part of his D.C. venture, including shipping the now-notorious Kristen down from the Big Apple on the train.

Coffey should know. What was not mentioned on CNN was that a little over a decade ago, he lost his job as U.S. attorney in Miami after it was discovered he had attended a late-night Miami strip club called Lipstik. There, despondent over a not guilty veridict in a big drug prosecution, he got quite drunk and went off into the back "champagne room" with a stripper named Tiffany. There, he reportedly grew a bit frisky and, uh, bit her. On the arm.

As it turned out, Coffey had also bought a $900 bottle of Dom Perignon and $200 in "Lipstik money" on his federal government American Express card.

The story eventually spilled out in the media. Coffey denied it all at first but ultimately resigned after investigators from Washington got involved.
Stones, fellas, stones.


Miami Herald's cranky iconoclastic TV reporter Glenn Garvin was first on this story, and CNN now admits having Kendall comment on Spitzer was a mistake.

Tuesday, March 11, 2008

Where in the World Is Roberto Martinez?

Between battling evil anti-evolution luddites (sorry for the misread earlier, Bobby!) and not appearing much at Tax and Budget Reform Committee meetings, it's a wonder Roberto has any time to practice law:

According to commission attendance records, members who have had the most no-shows include Lee County Circuit Court Judge Bruce Kyle, who has attended 18 percent of the meetings; Miami lawyer Roberto ''Bobby'' Martinez, 29 percent; Mark Bostick, president of Comcar Industries in Winter Haven and Alan Levine, outgoing president of the North Broward Hospital District, 53 percent, and Miami attorney Carlos Lacasa, 59 percent.
But you know, if this was baseball, hitting .290 would be pretty respectable, especially for the Marlins.

There's really only one solution: Doug Kinney, Doug Kinney Doug Kinney....

Friday, March 7, 2008

Let Them Eat Cake

But only once, according to the Third DCA:

The Third District Court of Appeal on Wednesday upheld a Miami-Dade Circuit Court judge's ruling that barred buyers in the ill-fated 49-story 1390 Brickell Bay condominium project from seeking possible profits from the sale of their units had they been built.

Developer Kenneth Baboun and his company BBB Group abandoned the $90 million project in February 2006, blaming hurricane-related delays and rising construction costs.

Baboun returned to the buyers their deposits plus interest. The deposits amounted to 20 percent of the purchase price, which ranged from $350,000 to $1 million.

But nearly 60 buyers, many of whom bought in 2003 when real estate prices were escalating, sued for breach of contract claiming they were due the ''benefit of their bargain,'' or the difference between their unit's purchase price and what it might have resold for had it been built.

A lawyer for the buyers told The Miami Herald in April 2006, when the suit was filed, that damages would start at $200,000 per unit even with the onset of the softening real estate market. More than 300 units were planned in 1390 Brickell Bay.

''What the plaintiffs in this case really wanted was to turn my clients upside down and shake some money out of their pockets,'' said Lee Stapleton, a lawyer with Baker & McKenzie, who represented the developer.

The buyers' lawyers didn't return two calls. It's not clear if they will seek a rehearing on the court's ruling.

When the developer returned the deposits to buyers, a letter attached stated that cashing the check would serve as an ''accord and satisfaction'' of the terms of the purchase contract.

All but 12 of the purchasers who sued cashed their checks, but later argued there was no intent to settle with the developer.

Miami-Dade Circuit Judge Ronald M. Friedman granted final summary judgment in favor of the developer last year, but the plaintiffs appealed.

The Third DCA ruled the purchasers shouldn't have cashed their checks if they wanted the developer to be obligated under the contracts.

'The person cannot `have his cake and eat it too,' '' the court said in its opinion.

Ha ha ha, always good for an appellate court to throw in a funny line when addressing an epic and deepening mortgage and housing crisis in South Florida that has yet to hit bottom. Those goofs!

BTW, why didn't the reporter identify the lawyers who brought the suit, and who didn't return the phone calls? Hey Stephen P. Walroth-Sadurni, somebody likes you, I mean REALLY likes you. And nice job Lee Stapleton -- thanks for reminding me the Miami office of Baker & McKenzie is still open.

You can read the opinion here. Although I believe the underlying lawsuit was fundamentally flawed -- and the plaintiffs' theory of recovery utterly untenable -- I still find the opinion lacking and somewhat outcome-determinative.

In a nutshell, because the court felt the plaintiffs here didn't "deserve" to have their cake and eat it too, the court ruled that a letter accompanying a returned deposit check constituted "accord and satisfaction." Further, the court found that the act of cashing the check showed the requisite intent on the part of the buyers to give up their rights under the original contract. In translation, what this means is the Third felt the developer did right by these buyers by returning to them their deposits (increasingly rare these days) so these buyers really have no right to complain.

I agree, but is that "legal" reasoning?

How many of these people were lawyers and knew they were voluntarily relinquishing their rights under a written contract by cashing a check that returned to them their own money? How many read the letter? Shouldn't they have been required to sign something besides a check to indicate actual knowledge that their contracts are being cancelled -- like maybe the letter advising them of the termination of their rights?

Maybe I should include accord and satisfaction language on the back of every check I write, even when I am writing a check that was called for under a contract. Hell, I'll even add some release language on the back of the check just because I'm a belt-and-suspenders kind of guy. That way I can never be sued for anything. Makes sense, right?

Thursday, March 6, 2008

Bad Moon Arising?

From the ominous signs department:

A correspondent writes in:
SFL, I was in Greenberg Traurig for a deposition this morning. When I went to the front desk to get my ticket validated, I was told that GT no longer does this. When I asked the attorney, I was told they stopped doing this as a cost-cutting measure. Yet it still takes 4 employees to buzz you into a conference room!
You know the old nursery rhyme , "for the want of a validated ticket, the Lexus was lost. For the want of a Lexus, the client markups were lost......"

Bobby Brochin Scores Big!

Of course, it may have helped that the opposing team refused to show up:

A former Peruvian military officer must pay $37 million in damages to two survivors of a 1985 massacre he led in an Andean village.

U.S. District Judge Adalberto Jordan in Miami on Wednesday ordered Telmo Hurtado, 46, to give the money to two women who were children at the time of the Accomarca Massacre. The incident left 69 civilians dead, including most of the women's family members.

Although the victims' lawyer acknowledged it will be another long battle to get Hurtado to pay the award, the decision is nevertheless an important one.

''I'm very satisfied,'' said Miami attorney Robert Brochin, who litigated the victims' case on a pro bono basis. ``We hope this goes a step toward holding Lt. Hurtado accountable for his atrocious acts.''

Just kidding Bobby! A good guy and great lawyer. Congratulations on a big win, for a good cause.

Now go bill some collectable hours.

Wednesday, March 5, 2008

Ahh, The Good Old Days!

Were they really that good?

This piece about the release of former Miami-Dade County judge Harvey Shenberg got me thinking:

Released from federal prison: Harvey Shenberg, former Miami-Dade County judge. Shenberg, 64, convicted in 1993 of racketeering conspiracy and extortion in the Operation Court Broom judicial corruption scandal, got out last week.

U.S. District Judge Jose A. Gonzalez, Jr. initially sentenced Shenberg to 15 years and eight months. Shenberg appealed, and in 1997 the sentence was reduced to 12 ½ years. He served his time in Miami, as well as Yazoo City, Miss., Montgomery, Ala., and Atlanta.

He is now on three years of supervised release.

''He's doing great,'' says his mom, Ruth Regina Panken, 79, a nationally known makeup artist and wigmaker for humans and dogs who has appeared on David Letterman's show. She still runs a wig salon on Kane Concourse in Bay Harbor Islands.

Two other judges and a former judge did time in the Court Broom case. No word on Shenberg's post-prison plans. He could not be reached for comment.

Wow, what a blast from the past! Operation Court Broom? I haven't thought of those jokers in years. I bet many of you youngsters don't really even know much of our last great judicial scandal. Judge David Goodhart? Good ole' Judge Sepe?

Holy crap -- "Maximum" Morphonious? Boy, Miami was awash with corruption in the '80s, when you think about it.

Let's take a walk down memory lane, when AGs like Dexter Lehtinen and of course state attorney Janet Reno actually went after public corruption in our fair city:

Judge Harvey Shenberg, 49, was found guilty of racketeering conspiracy and one count of extortion. David Goodhart, 63, a former judge, was found guilty of racketeering conspiracy.

Each count carries a maximum sentence of 20 years in prison. Judge Jose Gonzalez of Federal District Court set sentencing for July 1. Appeals Are Planned

Lawyers for the two judges said they would appeal.

Judge Phillip Davis was acquitted on all five charges he faced, and former Judge Alfonso C. Sepe was acquitted on 27 counts, and the jury deadlocked on five others counts against him.

The Government's indictment accused the four judges of accepting a total of $266,000 in exchange for acts like lowering bail, disclosing the existence of arrest warrants, returning seized property and suppressing evidence.

An assistant United States attorney, John O'Sullivan, said prosecutors were prepared to go to trial on the undecided counts.

Judge Sepe said he was confident that he would be found not guilty on the undecided counts and looked forward to returning to the bench. "The judiciary is very vibrant and strong and healthy, and will not come apart because there has been an unfair or untrue accusation against us," Judge Sepe said.

Judge Davis said: "This has been a trying situation for two years now, and I can only say without a shadow of a doubt that the system does work. Everyone involved in the system did their job."

Defense lawyers had focused for the most part on the Government's principal witnesses, Raymond J. Takiff, a criminal defense lawyer, and former Judge Roy T. Gelber, who earlier pleaded guilty in the case and agreed to resign from the bench and to cooperate with investigators.

The inquiry began in 1989, when Federal agents persuaded Mr. Takiff, whose clients at the time included Gen. Manuel Antonio Noriega, the deposed leader of Panama, to pose as the representative of a Central American drug ring and other narcotics traffickers with cases pending in Dade County. Undercover Federal and state agents then appeared in court as defendants in fictitious cases.

The Government maintained that the four judges had accepted payments from Mr. Takiff to help his clients.

The investigation was the second-largest judicial corruption investigation in American history.
So all you pre-senile old-timers, who were the lawyers who were doing the bribing? You know, the "liquid lunchers" who hung out at Sally Russell's across the street from the courthouse, stale popcorn dripping from their lapels?

(It's ok, the statute of limitations has long passed.)

Tuesday, March 4, 2008

Just Pay. Pay Now. How Much? Just Pay It.

This has no South Florida angle, but is simply too much to pass up. Here is an account of the testimony of John Ritter's widow -- recalling on the stand his final minutes -- in her $67 million wrongful death suit against his doctor and radiologist:

Sobbing into her hands, John Ritter's widow on Monday gave jurors in a wrongful-death trial a minute-by-minute account of events leading up to the actor's death in 2003. Amy Yasbeck sometimes could barely speak through her tears as she recounted the last hours in which she was summoned to a hospital and told her husband was having a heart attack and needed an angiogram.

She said that Ritter, who was in a hospital bed, was "scared" and asked Dr. Joseph Lee, one of the two defendants in the lawsuit, if he could get a second opinion before he agreed to the procedure.

"Dr. Lee said, 'No, there's no time. You're in the middle of a heart attack,'" Yasbeck testified.

She said Lee asked Ritter to sign a consent form and read him its details.

Asked by her lawyer, Moses Lebovits, what happened next, Yasbeck broke into gasping sobs.

"I leaned down to John's ear and said, 'I know you're scared but you have to be brave and do this because these guys know what they're doing.' And he was brave for all the time I saw him," she said.

Yasbeck said that as Ritter was wheeled down a hall on a gurney he used sign language to say "I love you." She said she mouthed the same words back.

"He went around the corner and that's the last time I saw him," she said.

Ritter, 54, fell ill earlier in the day while working on the sitcom "8 Simple Rules ... for Dating My Teenage Daughter" and died of a torn aorta at Providence St. Joseph Medical Center in Burbank. His family is suing Lee and a radiologist, Dr. Matthew Lotysch, who did a body scan on Ritter two years earlier, for $67 million.

The doctors deny wrongdoing. The radiologist has testified the aorta was normal in the scan but Ritter had coronary artery disease at a relatively young age.

You know the plaintiff's lawyers are quietly high-fiving each other. And can you imagine being one of the defense attorneys during this testimony? Sign language? Mouthing "I love you"?

Come on! What could the insurance company's defense strategy be in taking this case to trial?

uVu -- A New South Florida Website

This one is not strictly legal, but WPBT Channel 2 has launched what appears to be a more high-minded, local version of Youtube, called uVu:

Imagine the ability to watch a program, performance or lecture and instantly share your view with the rest of the South Florida community. uVu (pronounced “you-view”) brings the community together to share voices, views and ideas with each other in a safe, easy-to-use online environment.

uVu is a video sharing website and companion digital broadcast channel powered by WPBT Channel 2, South Florida ’s PBS station. The website consists of video content created and submitted to the site by individuals, community groups and cultural/educational institutions, which allows the community to experience, at any time, the important happenings of South Florida .

Anyone can log on to the site, choose a video to watch, share their thoughts with others on a message board/blog and even send the video to a friend, building on the dialogue amongst users. And uVu responds to local events with the help of an army of citizen “correspondents,” shooting and supplying “their own Vu” to the site.

So lawyers, get out your little video doo-dads and get to work!

My first request is anything by Steve Zack -- I could watch him for hours, mouth agape. He could read the phone book for an hour, and I would silently listen (come to think of it, I have.)

Monday, March 3, 2008

Miami City Club Is Regrettably Orgy-Free

Hey, I've been to the City Club many times, and have never seen anything like this:

The call girl, who spoke exclusively to CBS4, said that on numerous occasions, women from the prostitution agencies were called to attend late-night parties at The Denver Club, a plush squash and social club located on the top two floors of a downtown skyscraper.

She said the women were paid around $2,000 to have sex with numerous men. Asked who the men were, she said they were "business guys, rich businessmen." She said participants in the parties snorted cocaine and had sex throughout the club.

"People were having sex on the pool table, couches ... in the locker room, in the steam room," she said.

The President of The Denver Club, Peter Marayne, said, "The club would never sanction these kinds of parties, and that's not what the club is for." He said the parties "are a poor characterization of what the club stands for." The Club's Board of Directors said it had "no knowledge" of the parties and "has never sanctioned any such activities and certainly does not condone them."

The club has been a pillar of Denver society and is one of the cities' oldest social clubs. It was founded in 1881. While it has only about 100 current members, mostly interested in playing squash, they are highly placed in business, finance, law and the oil and gas industry. Mayor John Hickenlooper is a member and has been for years. A spokesperson said Hickenlooper plays squash at the club once or twice a week. Beer baron Peter Coors and billionaire Phil Anschutz are also members. None of them were at the parties in question.

For the men who were at the parties the woman described, it was no holds barred. "When people are standing around and there's lots of participants and more than one girl and more than one guy involved in a sexual act and other people are watching, sounds like an orgy to me," she said. "Some guys would watch, some guys would participate, always for a fee."
Maybe in the "private function" rooms, I guess. Or is this part of the reciprocal benefits of club membership they're always talking about?

Oh, The Horrors

Imagine the dark, depressing dystopia that would envelope our State if this proposed bill regulating arbitration provisions in consumer contracts were by some miracle to pass:

Among some of the provisions of the bill, sponsored by Sen. Ted Deutch, a Boca Raton Democrat whose district includes a portion of Broward County, are:

Any arbitration notice must state the parties are entitled to representation.

Corporations would have to disclose arbitration expenses, including filing fees, and the cost for arbitrators and hearing rooms.

Any arbitration organization that administers 10 or more consumer arbitrations a year would have to disclose: the number of times a corporation has been party to an arbitration by the firm; whether the consumer was represented by a lawyer; how the case was resolved; the amount claimed and the amount awarded, and the name of the arbitrator and his fee.

Arbitration awards can be tossed if the ``award is not supported by substantial evidence.''

''The idea is to ensure the system isn't so heavily weighted against the consumer,'' said Deutch, a lawyer. A similar bill by Jacksonville Republican Charles McBurney, a lawyer, was filed in the House on Thursday.

The legislation doesn't sit well with some businesses and arbitration firms.

Good god Frank Petosa, or should I say Fallon from that crappy Emilio Estevez film Judgment Night, you are truly dedicated to the destruction of our way of life -- in fact, all we hold dear.


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