Friday, July 31, 2009
Well kids, we're here again -- the end of another work week, this time filled with pay cuts and job losses. And even some BigFirm anxiety (except for you, Greenberg Gal).
Still, as always, there are silver linings.
For example, I understand a position may have opened up within the legal department at Goldman Sachs. That's one job right there.
Also, Florida is number one at something again, so that's good.
See, things are looking up....
And lookee here, what a surprise -- they've reached a deal in the UBS case before Judge Gold!
(Gene, now you really have no excuse for breaking our lunch date next week.)
Hmm, I can see from my office window that the waves are kicking up, so you all will have to excuse me as I have some early afternoon windsurfing requiring my immediate attention.
This weekend I will probably also spend some time getting my head around this, checking out this cool art exhibit, and -- of course -- avoiding the sneezing duck. It goes without saying I'm going to mature like rock star, too.
That plus lots of fun things to put your hands on around town and it all adds up to another glorious South Florida weekend.
What are you waiting for?
Hmm, I don't recall learning in law school how to hire somebody who paid somebody at a hospital for PI leads and then cutting that person a percentage of any fees generated, but you know how crazy kids are today:
Also, last I checked, you were not supposed to share fees with non-lawyers, or is that also one of those ancient and "dated" rules like the Geneva Convention where you had to provide prisoners with handlebar mustaches and tins of potted beef or something?
A Miami man was charged Thursday with buying confidential patient records from a Jackson Memorial Hospital employee over the past two years, and selling them to a lawyer suspected of soliciting the patients to file personal-injury claims.
Ruben E. Rodriguez allegedly paid JMH ultrasound technician Rebecca Garcia $1,000 a month for the hospital records of hundreds of patients treated for slip-and-fall accidents, car-crash injuries, gunshot wounds and stabbings, federal authorities said.
Rodriguez then brokered the patients' names, addresses, telephone numbers and medical diagnoses to the lawyer, according to an indictment. The lawyer, not identified in court papers, used the information ``to improperly solicit JMH patients with hopes of representing them in future legal proceedings.''
Later, the lawyer paid Rodriguez a percentage of the legal settlements won from the patients' personal-injury claims, authorities said.
I tell you, it's hard to keep up.
Thursday, July 30, 2009
I know I do.
That's why I enjoyed this new 11th Circuit opinion that wades into the sometimes-murky waters of enforceability of noncompetes in Florida:
In 1996, Florida adopted Fla. Stat. § 542.335, which "contains a comprehensiveOoh baby, keep on singing that sweet song, I could listen to it all night long.
framework for analyzing, evaluating and enforcing restrictive covenants contained
in employment contracts." Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1262 (Fla.
Dist. Ct. App. 2009). For a restrictive covenant to be valid, "[t]he person seeking
enforcement of [the] restrictive covenant shall plead and prove the existence of
one or more legitimate business interests justifying the restrictive covenant." Fla.
Stat. § 542.335(1)(b). Section (1)(b) of the statute enumerates a non-exhaustive
list of "legitimate business interest[s]." Among these are: (1) "[v]aluable
confidential business or professional information that otherwise does not qualify
as trade secrets"; (2) "[s]ubstantial relationships with specific prospective or
existing customers, patients, or clients"; and (3) "[e]xtraordinary or specialized
In addition, to be enforceable, restrictive covenants must be reasonable with
regard to time, area and line of business. Fla. Stat. § 542.335(1). Once an
employer establishes a prima facie case that the contractually specified restraint is
"reasonably necessary to protect the legitimate business interest[s] . . . justifying
the restriction," the burden of proof shifts to the employee to show that "the
contractually specified restraint is overbroad, overlong, or otherwise not
reasonably necessary to protect the established legitimate business interest[s]."
Fla. Stat. § 542.335(1)(c). If the court finds that the "contractually specified
restraint is overbroad, overlong, or otherwise not reasonably necessary to protect
the legitimate business interest[s]," the court is required to "modify the restraint
and grant only the relief reasonably necessary to protect such interest or interests."
Seriously, though, despite this very straightforward hornbook statement by the 11th, here is yet another area of Florida law needlessly messed up and complicated by years of crappy opinions and imprecise or thoughtless language by DCAs across the state.
But hey, it's Florida, that's how we roll.
Anyone know who the district judge was on this?
Carlos Loumiet gets one big monkey completely off his back:
Mr. Loumiet added: "I am very glad that this weight has been lifted and I can now move on, putting my full energies on my family, my practice and my work as chair of the New America Alliance, a national association for leading Latinos in U.S. business."Congrats to Alan Greer and the Richman Greer legal team for a huge and hard-fought victory.
Now go help him deal with this Stanford mess.
And no, Bowman Brown will not be mentioned at all in this post.
Wednesday, July 29, 2009
Yes, yes and yes -- it's Wednesday!
Assembled masses, we are joined together on this sacred day in mutual love and respect for our beneficent judicial overlords, who weekly speak to us in hushed tones, muted phrases, and furtive glances, employing that oldest and simplest means of lawyer seduction -- free coffee.
Yes kids, the concrete bunker by the highway has been ceremoniously opened, the written utterances have emerged and are slowly wafting across a spellbound legal community, while the resplendently robed ones prepare their recession back into the judicial ether, to reappear next week on this exalted day and time or perhaps before then at Bagel Emporium or maybe Two Chefs, depending on availability.
Ok, was that too much?
But before we get to those juicy opinions, I see that ATL has confirmed the pay cuts we have been hearing about for a while at H&K:
Like many other firms, Holland & Knight is reducing the base salaries of its associates, with limited exceptions. The associate salary reductions range from zero to ten percent. In addition, the firm is reducing the base salaries of some senior counsel/professionals.Ouch -- seven percent. So we dedicate this week's 3d DCA Watch to all you valiant H&K seven-percenters, still employed, who are hunkering down and hoping for the best -- keep those billables coming!
The total reductions approximate 7%.
And remember -- fear is a tremendous motivator.
On we go.....
United Auto v. Metro Injury:
What would the state court system do without United Auto?
Day after day, week after week, lawyers show up in county or sometimes circuit court to argue United Auto matters, which then lead to rulings, which are then sometimes appealed.
In this one -- yet again -- the 11th Circuit acting in its appellate capacity ruled against United Auto and was reversed by the 3d:
United Auto claims, on this second-tier petition for writ of certiorari, that3d DCA clerks, just right-click and save this opinion to your C drive, I have a feeling you'll be able to use it again real soon.
the circuit court departed from clearly established law by refusing to follow United
Automobile Insurance Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008), and
instead applied incorrectly rules of statutory construction to interpret the meaning
of the term, “valid report” under section 627.736(7)(a). Metro argues that the
holding in Bermudez does not apply to the facts before us, and, therefore, the
circuit court applied the correct law. We agree with United Auto and follow our
holding in Bermudez, wherein we interpreted the meaning of “valid report” under
Strategic Empowerment v. South Dade Realty:
Hmm -- Shepherd, Salter and Schwartz.
That grouping has a nice ring. Where have I heard that before?
Abraham, Martin, and John.
Beck, Bogert, and Appice.
Shepherd, Salter and Schwartz.
Boy do those guys know how to rock!
Still, this is not their best work -- the first album was much better.
I love it when science catches up to science fiction, especially when it involves Star Trek:
Oxford scientists have created a transparent form of aluminium by bombarding the metal with the world’s most powerful soft X-ray laser. 'Transparent aluminium' previously only existed in science fiction, featuring in the movie Star Trek IV, but the real material is an exotic new state of matter with implications for planetary science and nuclear fusion.See Mom? I told you it was educational.
Tuesday, July 28, 2009
You all know how much I love music.
That's why I found this case involving hot young R&B hearthrob Marcus Cooper a/ka/ "Pleasure P" so interesting.
Cooper, a Miami native and former member of the raunchy local group Pretty Ricky, has struck out on his own and from the reviews on Amazon, he's got a pretty bright future.
(Except let me repeat my earlier advice -- don't work blue, P.)
Too bad he's embroiled in your typical manager/young artist label dispute which is now pending before Magistrate Judge Garber.
Having read a bunch of the pleadings, it has been very contentious. The lawyers have been fighting over remand, fees, deposition dates and locations, extensions of time, requests for sanctions, you name it.
Take, for example, this opening from Cooper's reply brief in support of his motion for summary judgment:
Defendants’ opposition brief is like watching a New York street hustler fleece an unwitting tourist in a game of three-card Monte. Throughout this litigation Counterclaim Defendants have consistently demonstrated their total disregard of the governing law and the truth.Uhh, ok.
I also like this excerpt:
Moreover, there is no credibility to their cookie-cutter statement concerning Rex Zamor. Corey Mathis testified that Zamor didn’t actually do anything as “manager.” Mathis Tr., p. 53-54. His precise words were “He ain't do shit.” Id., p. 54, line 8.You know, brevity truly is the soul of wit.
Cooper is represented by NY attorney Robert Meloni and local counsel Richard Celler of Morgan & Morgan.
I don't know about you, but I am sick to death of hearing about "metadata."
Note to prominent BigLaw attorney I chatted with the other day at Gordon Biersch -- there is nothing more boring than a metadata war story.
Seriously, tell me about your brilliant cross-examination, your last mediation, your car, your kids, your house, your vacation -- anything.
Just spare me that metadata anecdote and how clever and sneaky you were and how opposing counsel was completely clueless. I could care less whether you "mined" somebody's files or not.
Also, being able to barely fake your way through a ten minute conversation about metadata does not make you "cool" -- it makes you a dork.
I remember these conversations about "email" discovery back when those new doohickeys started to penetrate to the partner level at law firms. Everybody needed to have a seminar on how to go after company "emails" and how you can recover them and draft discovery directed to them, and how to introduce them into evidence etc. It was all very exciting!
That's what you metadata fetishists sound like today.
Anyways, see you all at the teleconference!
Monday, July 27, 2009
Sheesh, I didn't even know I had a "gap period," but the 11th ruled today that FedEx employees cannot proceed on a class-wide basis for failing to be paid during their "gap period."
A fairly standard opinion, though I think they went off the rails a bit on the quantum meruit ruling.
Still, for many of us the question is what work did we do during our "work period":
You know Facebook is no longer cool when the parents are way more active on it than the kids.
Time spent on social networking sites has doubled in only a year, according to a 2009 study by Nielson Online. Time spent on Facebook has jumped to 13.9 billion this year as opposed to 1.7 billion last year, which is a 700 percent increase.
Twitter saw a 3,712 percent year-over-year increase between this year and last and Myspace users spent 384 million minutes viewing videos on the site.
Kids these days, right? Well, not so fast. According to the study, the greatest growth for Facebook has come from the 35-to-49-year-old demographic. Not to mention, twice as many 50-to-64-year-olds created profiles for the site than the under-18 age group.
Finally, for you Jack Thompson junkies, if you were curious to know his views on Professor Gates' arrest, his column is here.
Hi folks, it's Monday (again).
I was moved yesterday by this heartfelt tribute.
So, in honor of the American Soldier, I'm gonna quit makin' things up.
You know, that felt pretty good.
Ok, I'm done.
Speaking of heartfelt tributes, John Pacenti reviews Judge Moreno, and says he's funny, entertaining, and informative, but that G-Force is still better family fare.
Hey, what do you know -- Governor Crist likes classic films too!
Friday, July 24, 2009
Oy, oy, and triple-oy.
And I thought Turistas was far-fetched.
Well I doublechecked and as far as I know, I am not in violation of any trial orders, pleading deadlines, or discovery rules.
Before I go, I want to say thank you to Lew Freeman for that great shin-dig the other day -- it was Titanic, buddy.
So let's get the weekend started right, and as per usual I will be engaged in a host of perfunctory and rather mundane activities, such as investigating new cloud-seeding methods in India, discussing an open city manager position in Ft. Myers Beach, and having a nice date with my new 2-D girlfriend.
Actually, I prefer all five dimensions, but then I'm old school.
Stay gold all you legal Ponyboys and have a great weekend!
Hi kids, yes it's Friday and yes I'm packing it in early. In fact, I'm taking the whole day off.
I hope you all get to sneak out early today too.
Did you all see this 11th Circuit opinion released yesterday on "late" discovery and amending the pleadings?
First of all, I love the name -- Southern Grouts.
Nothing namby-pamby like "Twombly" -- this is a Venetian Salami-worthy casename, ready to stand the test of time!
In a nutshell, the plaintiff took a corporate rep deposition after the date to amend pleadings, then sought to amend the complaint one month later, citing "new" discovery obtained at the deposition.
The district court refused, and it was affirmed by the 11th, in a pretty tough opinion. As part of the litany of reasons plaintiff's counsel lacked "diligence" on this issue, the 11th even noted that the corporate rep depo was moved once by plaintiff's counsel. That plus "waiting" a month to amend.
While overall I understand the court's affirmance, especially since plaintiff's counsel may have already had this information, I wonder whether the opinion is a bit too rarefied and perhaps lacks an appreciation of real-life practitioner concerns and how litigation unfolds in a busy law office on a daily basis.
Is moving to amend one month after an important deposition "waiting"? It takes some time to even get the transcript, then you have to amend the complaint and draft the motion. I don't know how much actual "waiting" was involved.
And depos are often rescheduled -- particularly important ones like a 30(b)(6), for reasons that have nothing to do with whether or not the lawyer really wants to take the deposition.
That said, I do agree that if you are already outside the amendment deadline you need to move quickly and probably should not be rescheduling the deposition except for emergencies.
In all, the opinion is worth a read to keep us all aware of how important these deadlines can be, and what "good cause" is and isn't to the 11th nowadays.
Hmmm, maybe I'll come in this morning after all.
Ok, now I'm officially worried -- I'll check in with you all later today.
Thursday, July 23, 2009
Oooh, tough loss for Jack Scarola, a mucho-fine trial lawyer:
I don't like trials in July. The judges are cranky, the jurors distracted, and no one wants to pay too much attention between the rain, the heat, and the vacations either taken or planned.
A Fort Lauderdale, Fla., jury on Wednesday ordered accounting giant Ernst & Young to pay $10.2 million on a negligent auditing claim, rejecting a request for $400 million on more serious allegations.
The verdict, reached after less than two days of deliberations, eliminated the possibility of a punitive damage award in the trial before Broward Circuit Judge Jeffrey Streitfeld.
And while these cases are exceptionally tough to prove or even get past motion practice and to a jury, congrats to Barry Richard for putting another notch on the belt.
Remember when Twombly came out in late 2006 and it showed up in just about every motion to dismiss?
Twombly, Twombly, Twombly.
Everywhere you went, people were talking about "Twombly."
You had to pretend to know something about it at judicial functions, there were teleconferences on it, and associates billed incessantly to copy and paste the part of the brief that dealt with it over and over and over again.
It was the "economic loss rule" of 2007.
Now, it seems, everyone is talking about Iqbal:
Even Justice Souter, who wrote for the majority in Twombly, thought Iqbal went too far, what with expecting judges to use "common sense" and determining what's "plausible" -- hah!
“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.
On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.
Sheesh, they're federal judges, give them a break!
Indeed, just a few days ago Judge Conway of the Middle District dismissed a false marketing suit involving Seroquel, citing Iqbal.
I hate legal trends, and particularly trendy decisions or theories that are untested and which run amuck for a while before things get back to normal.
So now everything is going to be about Iqbal, at least for the near future, before somebody realizes that maybe we went too far and we can go back to normal pleading practices, you know, Rule 1, Rule 8, Rule 12 -- the oldies but goodies.
And so, kids, now you know why I hate flatbread.
Wednesday, July 22, 2009
Hi kids, can you believe it's only Wednesday?
The good news is the written utterances have arrived!!
Oh boy I'm so excited let me repeat -- the written utterances have arrived!!!
In fact, I don't have to tell you things are bad. Everybody knows things are bad. It's a depression. Everybody's out of work or scared of losing their job. The dollar buys a nickel's work, banks are going bust, shopkeepers keep a gun under the counter. Punks are running wild in the street and there's nobody anywhere who seems to know what to do, and there's no end to it. We know the air is unfit to breathe and our food is unfit to eat, and we sit watching our TV's while some local newscaster tells us that today we had fifteen homicides and sixty-three violent crimes, as if that's the way it's supposed to be. We know things are bad - worse than bad. They're crazy. It's like everything everywhere is going crazy, so we don't go out anymore. We sit in the house, and slowly the world we are living in is getting smaller, and all we say is, 'Please, at least leave us alone in our living rooms. Let me have my toaster and my TV and my steel-belted radials and I won't say anything. Just leave us alone.' Well, I'm not gonna leave you alone. I want you to get mad! I don't want you to protest. I don't want you to riot - I don't want you to write to your congressman because I wouldn't know what to tell you to write. I don't know what to do about the depression and the inflation and the Russians and the crime in the street. All I know is that first you've got to get mad.
SFL: [shouting] You've got to say, 'I'm a HUMAN BEING, Goddamnit! My life has VALUE!' So I want you to get up now. I want all of you to get up out of your chairs. I want you to get up right now and go to the window. Open it, and stick your head out, and yell, [shouting]
SFL: "THE WRITTEN UTTERANCES HAVE ARRIVED!"
I want you to get up right now, sit up, go to your windows, open them and stick your head out and yell - "The written utterances have arrived!" Things have got to change. But first, you've gotta get mad!... You've got to say,"The written utterances have arrived!" Then we'll figure out what to do about the depression and the inflation and the oil crisis. But first get up out of your chairs, open the window, stick your head out, and yell, and say it: SFL: [screaming at the top of his lungs] "THE WRITTEN UTTERANCES HAVE ARRIVED"!!!
Oops, my bad -- was any of that out loud?
Well let's get right to this week's orders, because as we all know 3d DCA opinions are a dish best served piping hot.
Open Permit v. Curtiss:
I have a dear friend who lately has had trouble sleeping.
My sweet one, please read this opinion when you go to bed tonight.
Not sure? Try out this small sample:
We agree that, under paragraph 17, the maintenance provision of theSweet dreams and good night, my love.
Contract, Curtiss had a duty to maintain the property “in the condition as it existed
as of the Effective Date of the Contract.” However, if a loss to the property occurs,
and if the loss is determined to be a casualty pursuant to paragraph 16, then the
remedies provided by that paragraph are the only remedies available to the buyer.
Should it be determined that the seller were in some way responsible for the loss,
then it would not be a casualty and the provisions of paragraph 17 would apply
requiring the seller to maintain the property. The question presented, then, is
whether Curtiss was responsible, in any way, for the disappearance of the fixtures.
If he were responsible, then the provisions of paragraph 17 would apply. If he was
not, then the provisions of paragraph 16 would apply.
Labati v. University of Miami:
Anyone remember Ferne Labati?
She used to coach the women's basketball program at UM, until she got all old and Abe Simpson-like, so UM "bought out her contract," a technical term for "don't let the door hit ya, old lady!"
So Ferne did the only noble thing, the right thing, and sued the pants off UM, of course with the help of Wild Bill Amlong.
Too bad the trial court granted summary judgment to UM, based on three "legitimate business justifications," such as the fact that no one gives a hoot about women's basketball at UM.
Judge Miller even granted UM's request for legal fees!
On appeal, the 3d affirmed, but reversed as to the fee award.
My question is why did UM, after winning summary judgment, go after their fees? That strikes me as vindictive and excessive, particularly after you let the coach go and defeated her legal challenge.
Guess I'm not heartless enough for the UM athletic department.
Alana Roberts confirms and expands on the Akerman pay cuts we talked about Monday:
One source said the cuts may not affect all of the firm’s associates in the same way over time.Oh come on. I think this source is blowing smoke, and job cuts are probably already on the table.
“The associates who are performing on a very high level probably won’t at the end of the day receive pay cuts. They’ll get taken care of in bonuses,” said one of the sources, who spoke on condition of anonymity.
Cuts were made in response to the difficult economy, which has resulted in slower-paying clients, more clients demanding discounts and a decline in demand for legal services.
“The thought process was to preserve associate jobs,” the source said, while noting the firm remains financially strong.
“There’s no doubt that it’s harder to collect money. That’s the case in every business, but Akerman has been strong,” the source said. “They don’t have a lot of debt. They’re in a lot better position than a lot of other firms.”
I hope I'm wrong.
But what do I know -- I am not Nick Nanton:
Known as “The Celebrity Lawyer” for his role in promoting, marketing and creating Celebrity Experts across such diversified fields as entertainment, health and fitness, law, medicine, personal development, finance, and real estate, Nick represents many top Celebrity Experts and serves as the Producer of America’s PremierExperts™I love press releases by lawyers, but this one takes the cake.
television show. He also produces The Next Big Thing™ radio show, designed to recognize the top Celebrity Experts and bring their solutions to consumers and media outlets alike.
Nick is the co-author of the best-selling book, Celebrity Branding You™ and serves as editor and publisher of Celebrity Press™, a publishing company that produces and releases books by top Celebrity Experts. Nick and his longtime business and law partner, JW Dicks, Esq., use their proprietary Celebrity Branding® process to help entrepreneurs, professionals, CEOs, authors and professional speakers realize their dreams of becoming Celebrity Experts, create multiple revenue streams through IDEA Marketing™, and ultimately grow their organizations based on their teachings and systems.
Can someone explain to me what the hail Nick is talking about?
Tuesday, July 21, 2009
That's the lede in this solid article on South Florida lawyers starting to make deals again, by the always intrepid Julie Kay:
That's right, Jim -- only businesses and banks should be able to rely on the federal government to assume their risk and back their deals.
Jim Meyer, a partner at Harper Meyer in Miami, said it feels like ``the dam has burst.''
''The first few months of the year, everyone seemed to be in a holding pattern,'' he said. ``It seemed that people had to start doing business again eventually. There are a lot of pent-up deals from the first quarter. Financing does still seem to be the challenge.''
Meyer is hoping to secure the financing on several deals he's working on using the Interamerican Development Bank and the Export-Import Bank of the United States -- banks that offer programs in which loans are backed by the government.
NO PUBLIC OPTION!!
(The foregoing message brought to you by the US Chamber of Commerce).
Don't you love it when lawyers make statements to the media that inadvertently hurt their cases?
I wonder if my friend Luis Delgado stepped into it here:
Hmm, I'm just a country lawyer and all, but in a class action do you really want to assert individual reliance by each investor on each letter?
A Venezuelan investor is accusing a global insurance broker of playing a key role in Allen Stanford's banking empire, saying the company enticed thousands to invest in now worthless securities.
The federal suit filed Friday in Miami alleges that Willis Group Holdings provided letters to investors vouching for the financial integrity of Stanford's certificates of deposit, now the focus of a massive federal fraud case.
Filed as a class-action by Venezuelan resident Reinaldo Ranni, the suit says the global insurance broker issued ``safety and soundness'' letters that were given to clients in Miami and elsewhere.
Ranni says he invested more than $2.7 million after he was shown the letters at Stanford's Miami office.
``My client would not have placed deposits with Stanford if he had not been given the letters,'' said Miami attorney Luis Delgado.
``The claims were absolutely false.''
Monday, July 20, 2009
I was reading this story about Jason Wandner's efforts to save Mercedes, a Broward pit bull that is about to be euthanized for killing a neighborhood cat under Broward County's strict new one-strike law:
I guess the constitutional argument is that the county is taking property of a citizen without due process. That seems like a tough one.
Supporters argue the new law helps save more innocent animals from being killed in future attacks. Critics claim it is too harsh and does not give owners the chance to change a pet's behavior.
Hoesch's attorney, Jason Wandner, argues the county law is unconstitutional and conflicts with a state law that allows for more than one fatal attack on an animal.
In a recent ruling, Broward Circuit Judge Ana Gardiner rejected that argument, saying the county has the right to make its rules stricter than state law.
Wandner plans to appeal.
''Dog kills a cat, or another dog, goodbye,'' he said. ``The dog is just summarily executed. Under the new law, there are no second chances.''
But why can't the dog sue?
I have been following efforts to reimagine the law's relationship with the natural world, which have been spearheaded by South Florida's Center For Earth Jurisprudence, jointly sponsored by Barry and St. Thomas Universities.
We all know that certain inanimate objects or even legal fictions have rights -- corporations, for example, or ships.
So why not a forest, or a bunch of rocks:
Earth jurisprudence is closely allied with environmental law but is, in fact, broader; after several decades of implementation of environmental rules, ecosystems across the planet are as near or still closer to tipping points as before. Clearly - indeed, urgently - a more significant transformation of legal thinking is required to extend appropriate consideration to the intrinsic, spiritual value of the natural world. The CEJ creates law school curriculum that delves into Earth jurisprudence principles and promotes professional and academic discourse in the legal community. The CEJ is helping to extend legal protection to all human and non-human members of the Earth community; this includes consideration of the rights of future generations.Should you be able to sue on behalf of a natural object, or a piece of property like an animal?
It sounds ridiculous, but so are most rights before they are extended -- women's sufferage, Dred Scott, remember women and slaves were property under the law at various points in our nation's jurisprudence:
The notion of nature’s rights has long been cherished in environmentalist circles; the idea cropped up in the writings of Sierra Club founder John Muir in the late 19th century and the influential ecologist Aldo Leopold in the mid-20th century. But the first sustained legal argument is usually attributed to Christopher Stone, a law professor at the University of Southern California. In 1972, Stone wrote an article entitled “Should Trees Have Standing?”, which laid out the case for expanding rights that is now commonly cited. (The essay, originally published in the Southern California Law Review, will be reissued by Oxford University Press in 2010.)I remember that article from law school, and enjoyed debating it with my law professors.
Personally, I'm not convinced -- rights are potent currency, and in general should not be diluted where alternative schemes of protection exist.
Still, one of the sadder aspects of the Sotomayor hearings is the way the law was dumbed-down for these stuffy, close-minded Senators.
You'd never know from the way "the law" was presented at these hearings that what we do is often intellectually stimulating and filled with nuance, sophistication, daring, and imagination.
Oh well -- I better get back to writing those meaningless interrogatory responses.
Friday, July 17, 2009
It's pretty much well-known that I adore Nazi gnomes.
That's why I was thrilled to see this nice gentleman from Nuremberg and his noncontroversial garden gnome that just happens to be performing the Hitler salute.
Seriously, what better way to highlight your gardenias and perennials than a gleaming golden gnome paying tribute to Der Fuhrer?
Oh well, sorry I was busy today performing Important Legal Stuff, but I am now heading out for a glorious weekend filled with wet hot American windsurfing.
I hope you do the same.
Before I go, let's give a hand to Willy Ferrer, David Buckner, and Daryl Trawick -- three wonderfully qualified candidates short-listed for US Attorney.
I know each of these guys, and any one of them would do a tremendous job.
Willie -- I have seen you dance, so you get my nod buddy.
So off I go for weekend fun, to ponder why Dylan lost Jimmy Carter, why Crist wants to be a Senator but has no opinion on Sotomayor, and why this guy's claim is not preempted by the Dumb Dentist and His Dental Devices Act:
On Oct. 4, 2006, while he was performing work on Gaal, Meyers dropped an "implant screwdriver tool" down the patient's throat.First of all, I'm nearly certain the FDA has extensively regulated dental "mini-wrenches," and just because one falls into Mr. Gaal's throat does not mean each state can impose its own liability scheme on these miraculous examples of technological innovation.
Gaal swallowed the tool and two days later, he underwent a colonoscopy. The tool was removed from his intestines, the suit said.
On May 1, 2007, Gaal visited Meyers because he had a sore mouth. Meyers wanted to remove a "ball" attachment on an implant.
It was during that procedure that Meyers dropped a "mini-wrench" into Gaal's throat, which the patient swallowed. Also, Meyers lost a "ball attachment," which he presumed Gaal also swallowed, the lawsuit said.
Gaal underwent multiple medical procedures. The tool was spotted in his lung.
His chest cavity was cracked open, part of his left lung was removed and the tool was found. The ball was never recovered.
Gaal never fully recovered and was in "grave medical condition," the lawsuit said. He suffered a "cardiac event" on June 13, 2007, which required resuscitation. On June 19, 2007, he died.
Second, Mr. Gaal got exactly what he contracted for -- his teeth looked great! -- and simply because he got a free colonoscopy to boot is no reason to abuse the court system and raise everyone's insurance rates.
And remember, whatever you do this weekend, there is always time to ponder why JFK was just that cool, why exercise is so important, and why the British are just a bunch of randy wankers.
Don't forget -- put your hands on something nice while you're at it -- that may be what you wind up doing after law school.
Have a great weekend everybody!
Are you really sure you want to go to law school?
That's the message of incoming dean Patricia White of the UM School of Law, in this interesting DBR article on the future of the profession:
Issues affecting the legal industry are serious enough that White wrote incoming first-year law students encouraging them to defer admission for a year, partly because a larger than expected number of deposits arrived from students who plan to attend this fall because of the recession.Wow -- more students enrolling due to the recession, and the law school is telling them to rethink whether or not they really want to go?
White said the letters also were a way to get students to carefully consider why they want to attend law school and if the opportunities when they graduate line up with their career expectations.
“Students graduate with a large amount of debt and sometimes unrealistic expectations of what the job market is going to be,” she said. “They think that everyone is going to earn a lot of money. When you look at the statistics, a relatively small percentage of people make the large salaries.”
I did like this part of her speech:
The legal industry is still going to need new lawyers, but White said the strongest needs likely will be concentrated in areas like the public sector where the pay isn’t high.Wouldn't that be something if difficult economic times forced more lawyers to help those who need it the most?
“We do need more lawyers that help the underserved,” she said. “If you want to come to law school to help the underserved and you don’t care about making a lot of money, that’s great. Make that decision with your eyes open, and decide how much you can afford to borrow to do that.”
Related -- does it still count as a mitzvah if you are helping people out of necessity?
Thursday, July 16, 2009
Isn't everybody tired of the law already?
Watching the Sotomayor confirmation hearings have left me with a major case of the law blahs.
It's like watching an intelligent woman have to repeatedly explain basic legal concepts to complete idiots, over and over and over again.
Precedent, "settled law," legal realism, it's obvious no one is interested in her answers so why don't these pompous windbags cut her loose already and put her on the bench?
I enjoyed Michael Mayo's column on Sotomayor's mother, and their preparations for Noche Buena every year in Margate. Finally a fresh angle on this dead story.
What else -- the 11th Circuit explains that when the government offers you GoLytley at the airport, it's probably not a good thing.
Hey -- our own Billy Shields won an award from the Florida Bar.
Finally, today is the 40th anniversary of the Apollo 11 launch to the moon.
What better way to celebrate than love scenes between Diane Lane and the "blouse man," Viggo Mortenson?
Wednesday, July 15, 2009
Hi kids, anyone notice it's hot as hail out there?
I was going to leave for some early mid-week windsurfing, but then I realized today is that day, yes the exulted day, the only day when the written utterances emerge nearly unscathed from the fortified Concrete Bunker of Justice, that day of all days when the resplendently robed ones issue their guidance, their counsel, hail even their opinions, yes coffee-swillers hold on to your seats as we embark on a twisty-turvy nonstop emotional journey through the feelings of the judicial mind, in this week's totally effusive edition of 3d DCA Watch:
Manzano v. Nicolleti:
James W. Beagle, you get props not only because you have a cool name, but because you did the right thing and confessed error to the 3d.
I call that being a mensch.
Well done, sir.
Hayim Real Estate v. Action Watercraft:
The bearded one, Mike Ehrenstein, scores again.
A quick primer on the sale of commercial real estate:
It's caveat emptor, unless the contract says otherwise.My work here is done.
GM v. Sanchez:
Have you ever felt unbound? Have you ever felt bound?
Have you ever felt generally?
For that matter, have you ever had feelings?
Well Judge Schwartz has had all of them, in spades, sometimes even in a single paragraph:
Having engaged in that process ourselves, we feel unbound by any contraryFolks, that's a lot of feelings.
indications in the language of the Gelinas decision. We feel generally the same
way about Fox v. Porsche Cars North America, Inc., 279 F. App’x 748 (11th Cir.
2008), which, indeed, directly holds that these fees are recoverable. In Fox, the
federal court, in discharging its duty under Erie R. Co. v. Tompkins, 304 U.S. 64,
58 S. Ct. 817, 82 L. Ed. 1188 (1938), to apply the existing law of Florida, felt
bound by the Gelinas dicta – in the absence of any competing authority. That
authority now exists.
Just in terms of cross-examination technique, what did you all think?
Graham's a pretty talented trial lawyer, yet here he is pulling out one of the lamest tricks in the book -- pretending to "forget" where he put the "wise Latina" quote so that he could ask Judge Sotomayor -- twice -- to repeat it from memory!
Then he's all over the map, moving from abortion to the death penalty in a seemingly random way. And some of the questions were exceedingly condescending, or just plain juvenile.
Was this some kind of Matlock/Columbo country lawyer thing, or is he that bad and disorganized a cross-examiner?
Well, I knew my interests in Steely Dan and Alan Kluger would someday converge, and sure enough, that day has come:
The lawsuit is anything but dry reading, depicting Michael Chow as a visionary who brought a designer restaurant serving "the complex and varied cuisine of China" to the West (served on fine china at steep prices) and Philippe Chow as "a lowest-level kitchen assistant."I agree with Alan -- federal judges can be like Labrador Retriever puppies, lovable but easily distracted and prone to urinating from over-excitement when their masters come home.
"We tried to make it so that it was easy to read and quite frankly, so that a judge reading it would be interested in seeing the real human loss to Michael Chow," says Alan Kluger, Michael Chow's lawyer. (Kluger says they are seeking damages that could reach eight figures.)
The suit tells the story of Michael Chow and his "lifetime body of work," with references to his bringing the "ancient art of hand-pulled noodle-making to his restaurants" ("demonstrated in the 'Kung Fu Panda' movie DVD") and his 30th-anniversary party where "it is unlikely that such a famous and diverse group of people has ever been brought together before, or since, to commemorate such an event."
It claims that he's an innovator as the first to serve Chinese meals in courses, has been heralded as a cultural icon alongside McDonald's founder Ray Kroc and is "the one and only Mr. Chow."
You got to keep it fresh, or they will go back to gnawing on that old, comfortable social security disability appeal.
Tuesday, July 14, 2009
Just two torture memo dudes, reliving the good times:
A federal jury in Miami convicted Padilla and two others of conspiring to murder, kidnap and maim people in a foreign country, along with two counts of providing material support to terrorists. He was sentenced to 17 years and four months in prison, a lighter sentence than prosecutors had pushed for.Let's hope Judge Bybee has the good sense to recuse himself from this one when it reaches the 9th -- not that Bybee has shown a lot of good sense to date.
He sued Yoo and various government officials, claiming he suffered abuse and torture during his nearly four-year detention at prisons in South Carolina and New York. He said he endured sleep deprivation, exposure to extreme light and temperatures, threats of physical abuse and torture, denial of adequate medical care, constant surveillance and prolonged isolation.
He claimed Yoo was personally involved in the government's decision to label him an "enemy combatant." He also cited several memos written by Yoo that allegedly justified the deprivation of his constitutional rights. The memos were crafted "with the specific intent of immunizing government officials from criminal liability for participating in practices that Defendant Yoo knew to be unlawful," Padilla claimed.
U.S. District Judge Jeffrey S. White denied Yoo's motion for dismissal on all but one claim, saying the complaint "alleges conduct that would be unconstitutional if directed at any detainee."
Yoo filed a notice that he would appeal the decision to the 9th Circuit in San Francisco. Government attorneys also said they were dropping out of the case, and that Yoo would be represented by an unidentified private lawyer.
Don't you hate it when a witness lies under oath?
Actually I enjoy it, at least when I am cross-examining the little weasel.
The CIA, which knows a thing or two about lying, came up with this nifty list of how to determine if someone is lying:
The goal is to find “clusters’’ of deceptive behavior. A cluster is two or more behaviors, when the first happens within five seconds of a question. Examples of verbal deceptive behaviors:
1. Failure to answer the question directly.
2. Overly specific answers.
3. Verbal attacks at the person asking the question.
4. Enhancing qualifiers: “To be perfectly honest,’’ “candidly,’’ etc.
5. Being overly courteous or complimentary: “That’s a great question!’’ “You know, I knew I came to the right place. . .’’
6. Protest statements: A response to a question that is designed to convince rather than convey information. “A CEO of a public company would never do such a thing.’’
Examples of physical deceptive behaviors:
1. Changing one’s anchor point: Shifting in a chair, going from standing straight to leaning on a wall or table, etc.
2. Adjusting clothes, hair, jewelry, etc.
3. Covering one’s mouth or eyes.
Monday, July 13, 2009
Hi kids, how was your weekend?
The details of mine were quite inconsequential, really.
Very well, where do I begin? My father was a relentlessly self-improving boulangerie owner from Belgium with low grade narcolepsy and a penchant for buggery. My mother was a fifteen year old French prostitute named Chloe with webbed feet. My father would womanize, he would drink. He would make outrageous claims like he invented the question mark. Sometimes he would accuse chestnuts of being lazy. The sort of general malaise that only the genius possess and the insane lament. My childhood was typical. Summers in Rangoon, luge lessons. In the spring we'd make meat helmets. When I was insolent I was placed in a burlap bag and beaten with reeds- pretty standard really. At the age of twelve I received my first scribe. At the age of fourteen a Zoroastrian named Vilma ritualistically shaved my testicles.......So are you following the unfolding drama playing out in federal court regarding Podhurst, Nicaragua, and the pesticide DBCP?
It's a role-reversal of sorts for forum non junkies -- normally the defendants are claiming the foreign legal system is okey-dokey, and the plaintiffs are railing against the lack of justice in corrupt courts run by big multi-nationals.
Here it's the opposite -- the Nicaraguan courts have fast-tracked injury sterility claims by farmers involving the pesticide DBCP, and plaintiff's lawyers are seeking to have those foreign judgments honored in federal court in Miami.
But out in LA a state court judge, Victoria Chaney, has questioned whether the claims and plaintiffs in related cases are manufactured, and has apparently implicated Podhurst co-counsel in the Miami cases, Texas lawyer Mark Sparks:
The scam, Chaney wrote, was part of a much wider fraud in Nicaragua -- a thriving industry of manufacturing plaintiffs to capitalize on a justice system rigged against multinational corporations.In other words -- go pound sand, Judge Chaney.
At the center of that system, she wrote, is a law passed by the Nicaraguan government in 2001 that ordered the courts to fast-track DBCP claims.
Anybody claiming to have been exposed to the chemical on a banana farm who can produce a lab report showing he is sterile is entitled to damages. Evidence presentation is limited to eight days, after which the court has three days to decide the case. Defendants, such as Dole, must deposit millions of dollars in a trust for the right to defend themselves. They generally don't bother because it is almost impossible for them to win.
As the Florida case is set to restart, attorneys for Dole have already submitted Chaney's ruling to bolster their argument that the $97-million judgment in Nicaragua was a sham.
The plaintiffs' attorneys countered that Chaney's ruling is full of inaccuracies and overly broad.
"It's amazing to me that a judge can criticize in a sweeping way an entire country's integrity and make a ruling on every individual's honesty and integrity, even those who aren't before her," said plaintiffs' attorney Steven Marks of the Miami-based firm Podhurst Orseck.
Chaney's ruling implicates Provost and Umphrey, a Texas law firm representing plaintiffs in the Florida case along with Podhurst Orseck, in the alleged fraud in Nicaragua. Chaney wrote that one of its attorneys, Mark Sparks, was present in a 2003 meeting in Nicaragua at which lawyers, medical laboratory officials and a judge set out a plan to manufacture evidence and bolster cases in the Nicaraguan courts.
In court filings, Sparks and his firm denied he ever attended such a meeting, and argued that Chaney's ruling was fundamentally unfair because it did not offer them the right to defend themselves.
The ruling was based primarily on information from witnesses whose names and unredacted testimony to Dole lawyers remain sealed under an order by Chaney, who became convinced that their lives would be in danger if their identities were made public.
In any case, the plaintiffs' lawyers in the Florida case said they had no involvement in the California cases.
Sparks and his firm released a statement saying they "are confident that our investigation, testing and diagnosis protocols were superior to other firms in this litigation."
Our interest in this case has nothing to do with sperm motility or related health issues, I assure you, but we will nevertheless be following this one closely.
Friday, July 10, 2009
Ahh, nothing beats Miami in the summertime -- the heat, the rain, the bugs.
Note: wash, rinse, repeat.
A kind reader (he's a pretty good attorney, too) passed along an interesting motion filed a few weeks ago in Palm Beach state court to require defense counsel to wear appropriate shoes.
Is it true Michael Robb's schtick is to wear shoes with holes during trial "to impress the jury and make them believe that Mr. Robb is humble and without sophistication"?
That's what Bill Bone says, "upon reasonable belief."
BTW, wasn't that an old Traffic song?
Anyway, if true, my dry Gin Gibson is most definitely raised in your honor.
Well my plans require I leave office a little early today but as always there is some self-improvement involved.
For example, I plan to work on being big-hearted and self-sufficient, as well as romantic, artistic, and confident, oh and also being a good Dad.
And, if you're lonely you can put your hands on something worthwhile this weekend -- I always do.
Have a great weekend everyone!
So have you all read the Florida Bar complaint against Hank Adorno yet?
It's dated June 5, 2009, and deals with Hank and his firm's role in settling the now-ancient Miami fire fee class action on an individual basis, which we previously covered here, here, and here (well, sorta).
Does anyone know why it took so long for the Bar to finally file the complaint?
Also, the complaint does not specify what exact punishment the Bar is seeking, other than that Hank be "appropriately disciplined."
Hmm, sounds intriguing.
Hank's got fine counsel with Andy Berman, so maybe things are not as bleak as they seem after reading that depressing document.
Thursday, July 9, 2009
Jeff Kaplan explains the nature of sin in one easy soundbite:
“The moral compass of people who commit those kinds of crimes is something that my partners and I will never understand,” says Jeffrey Kaplan. “You either have a moral compass, or you don’t. We’ll never be able to understand what goes through the head of someone who can commit such a heinous fraud.”Exactly!
Like Jeff, I once had a moral compass.
In my case, however, I ordered it from the back of an old Thor comic book, along with some neat x-ray glasses, a Raquel Welch pillowcase, and a collection of mint Hitler postage stamps.
I think I still have the pillowcase.
Wednesday, July 8, 2009
Well, frankly I'm surprised that the 3d DCA would even consider issuing rulings so soon after the death of Fred Travalena, I mean Michael Jackson.
Judgment during times of national calamity can be clouded by grief, and even coffee-swilling, dispassionate jurists need time to digest such an enormity before returning to the important business of dispensing PCAs like candy corns on Halloween.
I may be mistaken, but I'm pretty sure the 3d took the entire summer off to mourn Anna Nicole Smith's untimely demise -- oh hail, who can remember so many dead celebrities ago?
But soldier on they must, and surveillance towers in the deep North Atlantic have picked up faint radio signals emanating from the concrete bunker of justice, a sure sign that the resplendently robed ones have either cracked the Ultra code or released their latest batch of juridical instant classics:
Sparks v. Allstate Construction:
Shorter Jeff Foxworthy -- if you keep striking African-American jurors on flimsy grounds such as the fact that they are "bus drivers" or "not white people," you may be using your strikes for a racially discriminatory reason.
The transcript is a pretty hilarious read -- but here the 3d gets it:
In this case, using “reason and common sense,” Melbourne, 679 So. 2d at 765, the circumstances surrounding, and explanation for, the strikes seem palpably pretextual. Rodriguez v. State, 753 So. 2d 29, 40 (Fla.Can't we all play nice, counsel?
This is particularly true when all of the peremptory strikes are used against
one distinct racial group, and a single member of that same group is only seated at
a time when that party has exhausted its entire allowance of peremptories.
Delant Construction v. Doral Enterprises:
Judge Schwartz, apparently unfazed by the Royal Popped One's tragic end, has stepped into the breach:
In the present case, Doral Enterprises won a money judgment against DelantYou tell it -- it's not enough to be undamaged, these people were "totally undamaged."
for an alleged overpayment based on the theory that it had not paid Coreslab.
Delant appeals and we reverse because it is undisputed that, in the course of
litigation between the two, Delant indeed settled Coreslab’s claim against it for
engineering services and paid Coreslab the entire amount due. That act left Doral
Enterprises totally undamaged by reason of its alleged overpayment in the original settlement and, it follows, no basis whatever to support the judgment now on appeal.
And forget having "no basis" to support the judgment -- these nudnicks have "no basis whatever"!
I especially like footnote one:
The basis of our decision makes it unnecessary to consider the very substantialNot just precluded, but "totally precluded"; not just substantial but "very substantial."
alternative argument that the present proceeding by Doral Enterprises against
Delant is totally precluded by an “accord and satisfaction” arising from the original settlement between the two.
In conclusion, my sisters and brothers, this opinion is totally awesome.
One more thing -- happy passing of the gavel, Judge Ramirez!!
The spiral continues as the WSJ takes a look at how small and mid-sized firms are taking away business from the BigLaw dinosaurs:
Hey, I know Tom!
John Quinn, a founder of Quinn Emanuel Urquhart Oliver & Hedges, LLP, a 400-lawyer business-litigation firm based in Los Angeles, acknowledges there's been something of a switch to small firms. But he says there are limits to what sorts of work corporations would pitch to previously untapped shops. "For the major cases, clients will still be looking for the most experienced firms, who have shown that they can handle this sort," he says. "I don't think that will change."
Still, some work is going to smaller firms. Hit hard by slumping auto sales, AutoNation Inc., the largest car-dealership chain in the U.S., has had to rein in spending. So the Fort Lauderdale, Fla., company recently handed the legal work for its move across town to Angelo & Banta PA, a South Florida firm of just seven lawyers.
Jon Ferrando, AutoNation's general counsel, says he typically would have hired a larger firm for such a matter. In this case, though, he sought a firm that knew the region well and charged less than a big firm.
AutoNation saved 20% to 25% on fees by retaining Angelo & Banta, Mr. Ferrando says. Angelo & Banta managing shareholder Tom Angelo says his firm charges $200-$495 an hour for work done by senior partners.
Congrats buddy, but take my advice -- get a large retainer (we're talking about AutoNation here).
I have to agree with Guest Blogger, while there is undoubtedly some shifting going on, and I know anecdotally of several cases going to smaller firms that otherwise might have went to the big boys and girls, there is also some overstatement involved.
Certain businesses will always hire larger firms, in part because of a built-in conservatism that
causes decision-makers to be risk-adverse. It's hard to question the hire when things go wrong if you pick a large, established firm to defend you. On the other hand, you expose yourself to criticism if you pick a smaller firm and something does go awry.
That's just the corporate culture at work, and that will never change.
Of course, the South Florida legal market is slightly different, in that many well-established and successful litigators lead their own firms, or are part of smaller firms, where the risk of hire is less and the lawyer can craft a fee arrangement with more flexibility than, say, at White & Case.
BTW, our friends at Riptide lay out the SexyLexus emails here -- all I can say is these people could learn a few things from Mark Sanford.
Remember, if you are sexting with someone you lust, presume your love notes will be posted online eventually so please try to bring your 'A' game.
Tuesday, July 7, 2009
Did anybody else watch Manhattan on TCM last night?
And another thing -- where is everybody? Judges are on vacation, lawyers are gone for the hills, everything is getting rescheduled or postponed.
So let's talk Walkman.
I remember when the Walkman first came out, some 30 years ago this week.
Oh how hip and cool to have one on the school bus, or at the mall, or while jogging.
I see the BBC gave one to a 13-year old, and here is his review:
That's right, kid -- your Dad's Supertramp cassette has two sides, and the Walkman will eventually eat both.
As I boarded the school bus, where I live in Aberdeenshire, I was greeted with laughter. One boy said: "No-one uses them any more." Another said: "Groovy." Yet another one quipped: "That would be hard to lose."
My friends couldn't imagine their parents using this monstrous box, but there was interest in what the thing was and how it worked.
In some classes in school they let me listen to music and one teacher recognised it and got nostalgic.
It took me three days to figure out that there was another side to the tape. That was not the only naive mistake that I made; I mistook the metal/normal switch on the Walkman for a genre-specific equaliser, but later I discovered that it was in fact used to switch between two different types of cassette.
It's a good thing we have so much franchise litigation here in South Florida. Like the cruise line stuff, all the contracts have SD FL venue provisions (which keep us happy and well-fed).
Here's a rather tough ruling by the 11th, affirming Judge Cooke's grant of summary judgment to BK over a franchisee's failure to comply with the "value menu" and holding that they failed to request a waiver in writing.
The appellants argued that BK waived the requirement that a request for an exemption to the value menu be made in writing, and argued that there was a genuine issue based on various emails, letters, and a meeting held between BK representatives and the franchisees and their lawyer.
The 11th said nope:
Here, there is scant evidence regarding a meeting between Mr. Sadik andI don't know if I agree with this ruling based on the evidence presented by the appellants, but I'm happy Judge Cooke got a straight affirmance without any sturm und snark by the 11th.
BKC representatives at which they discussed Appellants’ eligibility for a Value
Menu exception - too scant to create a genuine issue. Appellants have not alleged
when exactly the meeting was, where it was held, who specifically attended, what
the attendees said, or what sort of information was exchanged. Indeed, although
Mr. Sadik referred to such a meeting in an affidavit, he said only this: “I met with
the FBL and other BKC representatives and explained to them that the Value Menu
was going to drive me into insolvency . . . .” D.E. #115-2. Further, he stated:
“[t]hese BKC representatives told me that they were going to report back to BKC
corporate and then give me an answer as to whether or not I would be excepted
from the Value Menu (as in line stores qualify, and my stores were in line stores).”
In contrast to Appellants’ vague evidence of a meeting in which BKC
waived its written request requirement, every communication in evidence from
BKC to the Sadiks on this topic invoked that requirement.13 Indeed, as is apparent
from Ms. Doan’s email exchange with Mr. Griffin, as late as April 22, 2006 BKC
representatives still assumed any Value Menu exception would be requested in
writing. On that date, Ms. Doan wrote to Mr. Griffin: “I asked the [DVP], the local
business person and the local marketing person and nothing was submitted to them.
Can you tell me where [the Sadiks] sent the exemption request?” Mr. Sadik also
admitted in his deposition that no one ever told him not to submit a written request.
We find there is simply not enough evidence to create a genuine issue as to
whether BKC waived its requirement that the Sadiks request a Value Menu
exception in writing.
Now, about Tracy's face.......
Monday, July 6, 2009
Hi kids, it's Monday all over again -- hope you had a nice three-day weekend, celebrating the violent, bloody birth of our nation -- plus hot dogs and fireworks!
Did you catch this story by Alana Roberts on more cuts at Ruden?
I like this part best:
The attorney said talk at the firm is that Ruden is $4 million to $6 million behind its budget goals for the year. The attorney said morale at the firm has declined because of the job and pay cuts and uncertainty about whether there will be more and added that many of the firm’s lawyers are searching for other jobs.Now that's the kind of work environment that brings out the best in an attorney -- uncertainty, rumors, fear, a sense of impending doom -- keeps people on their toes, I always say.
“Everybody from the bottom up thinks it’s a matter of time for them; you don’t know what to believe,” the attorney said.
Meanwhile, here's an actual positive story about GrayRobinson and attorney Kevin P. Kelly, who gets the love in a Sunday NYT piece(!) on one of his cases.
I knew if I did this long enough this day would come.