Saturday, October 31, 2009

Happy Halloween!

The Keytar presence is entirely fortuitous.....

Friday, October 30, 2009

SFL Friday -- Happy Halloween, Plebes!

Well you know what they say -- "Halloween is for windsurfing" -- so I am going to cut out of here early and catch some glistening, chocolate-covered waves all afternoon.

Before I go, I see my crazy-eyed zoftig birther mama caught some more federal judicial flak today, this time coming from C.D. CA Judge David O. Carter, who wrote:
"Plaintiffs have attacked the judiciary, including every prior court that has dismissed their claim, as unpatriotic and even treasonous for refusing to grant their requests and for adhering to the terms of the Constitution which set forth its jurisdiction. Respecting the constitutional role and jurisdiction of this Court is not unpatriotic."
No, it just means you too had a little visit from an olive-skinned Eric Holder lookalike at the courthouse coffeeshop.

(BTW, I had no idea Alan Keyes was a plaintiff in the above suit -- talk about the loony leading the crazy.)

Then we have Hunton & Williams, which filed an odd suit on behalf of the US Chamber of Commerce against some pranksters who spoofed their position on climate change the other day.

You can read Hunton lawyer Richard L. Wyatt Jr.'s masterwork here.

Someone remind me -- what's that new opinion on pleading standards again?

In local news, Coral Springs attorney Scott Salomon was finally disbarred.

He certainly gave us plenty of good material over the years (see here and here) so we wish him (not to mention his former clients) farewell and godspeed.

I don't know about you, but like any good deputy assistant AG, I too have a goody bag of things "just in case." But dude -- in a cemetery?

Guess it is that time of the year.

And like many of you, I thought of some costume ideas so I put a few up there for your consideration -- guess which one I'm going as? (NO HINTS!)

Finally, remember whatever you do this weekend to think young, get a good night's rest, and since it's Halloween, get your blood on.

Have a great weekend everybody!

"Significant Fee Enhancement" Request Almost Causes Judicial Heart Attack

There's been a lot of discussion lately about the bills submitted by receivers and trustees in bankruptcy to compensate lawyers for marshaling up assets.

David notes Vanessa Blum's excellent coverage of the recent hearing before Judge Moreno, where Roberto Martinez argued for an $11 million "enhancement" for his and KTT's work on the MBC receivership.

As reported by Vanessa, the Judge in his usual manner had something funny and charming yet witty to say:
“I needed a defibrillator,” he joked. “We’re talking about a lot of money.”
He's right, but to be fair I pulled the final fee app, which you can review here.

Roberto basically argues that his firm and KTT agreed to discount their rates back in 2004, have not sought any increases during the five years of the receivership, and did incredible work very efficiently which resulted in a big distribution to investors. Accordingly, they ask for 10 percent of what they collected as a bonus, which apparently was an option contemplated in the original fee agreements.

Michael Hanzman, who served as counsel in a related class-action case involving MBC, approves:
“If you want to attract the best and the brightest people to take these cases, you have to pay a reasonable fee,” Hanzman said. “This is not a pro bono case.”
I think the Judge's comments highlight where he is going with this.

However, I wonder whether these firms could have billed at incrementally higher rates over the last five years and possibly recouped a chunk of this bonus back through regular applications to the Court without ever garnering this kind of headline?

Indeed, consider what's going on with our friend Allen Stanford and his receivership, which is just off the ground and has accrued over $36 million in fees -- or $100,000 a day. Not good.

The Judge also referenced the Supreme Court's recent dismay over how much it costs to litigate cases nowadays, though that involved a fee-shifting statutory question not at issue here.

My own take is this is probably not the best case or the best time to make a request like this, and you definitely do not ever want to make Judge Moreno's eyes boggle if you can avoid it.

Let's see what he does with it.

There Was Another Lawyer Who "Attended" Obama's Fundraiser

You remember how a bunch of South Florida lawyers got together with former law professor President Obama on Miami Beach a few days ago?

Well there was another lawyer there who I forgot to mention, except he was outside demonstrating against the President's visit:
Although the president brought good news to Florida, not every one here welcomed his visit. About 100 people – many of them protestors – assembled outside the Fontainebleau Hotel in Miami Beach, where the president spoke at the Tuesday evening fundraiser.

"Obama Sucks," read a sign held by a man on the corner of Collins Avenue.

Jose Llerena, 41, a Miami lawyer, was among the largely Cuban, anti-Obama crowd.

“He is one of the most divisive presidents we've had,” Llerena said. “I want this president to know that we don't like him. He doesn't believe in us. I hope he realizes that the Democratic Party is going to have a significant loss in 2010."
I don't know much about Jose, other than he is a labor lawyer who works for Jorge L. Fors and who once worked at George Hartz in the Gables.

He also has a jamming website.

et al et cetera et cetera et al -- interesting marketing strategy.

Also, according to his public Facebook page, Jose shares this message:
Banded together from remote galaxies are 13 of the most sinister villains of all time: The Legion of Dems. Dedicated to a single objective: the Marxist conquest of the US.Only 1 group dares to challenge this intergalactic threat: The Founding Fathers
I'm going to assume (hope?) this is a tongue-in-cheek Star Wars/BG-type parody.

If so, it still needs a little work, but could be a great comic book.

Also Jose doesn't like czars, wants Fidel to die, and is a big fan of Alex Foley.

Really, though, who isn't?

Thursday, October 29, 2009

Dennis Stackhouse -- A Lawyer's Friend

We've previously expressed admiration for Dennis Stackhouse and his endless capacity for litigation, some of which may or may not have involved the great wrestler Dave Batista.

Turns out today the State arrested Stackhouse for fraud and grand theft in connection with the troubled never-built, $118 million Poinciana Biopharmaceutical Park that was supposed to spur redevelopment in Liberty City:
According to court documents, Stackhouse stole about $990,000 from loans he obtained from the Miami-Dade Empowerment Trust and Tremont Realty Capital LLC in Boston. One method he allegedly used was to submit invoices to one of the lenders that had already been paid by the other as well as faked documents for work that was never performed.
Come on -- don't make it sound so novel!

Half of Miami's publicly-financed projects were built that way.

His attorney Larry Handfield says Dennis didn't make a penny from this project.

You're not kidding -- it gets tougher and tougher to do it right.

BTW, new South Miami City Manager Roger Carlton vetted Stackhouse and helped oversee the failed biopark project:

However, Carlton was the public face of several controversial projects, including a failed biotech park in Liberty City. Some, at the time of his dismissal, believed him to be a scapegoat.

Burgess could not be reached for comment Friday.

Carlton said that ``we all could have done a better job'' on the project, including vetting its troubled developer, Dennis Stackhouse, who pleaded guilty in 2008 to five counts of bundling campaign contributions. ``It was a learning experience for everyone involved.''

It's nice to learn. I like learning. We learn a lot here in South Florida.

BREAKING -- Supreme Court Rules for Robert E. Lee!

I guess it has been kinda slow around here when I am headlining a case from 1882, but what the hail.

This month's Smithsonian Magazine has a fascinating account of the history of Arlington National Cemetery, which was formerly the estate of General Robert E. Lee and his wife Mary Lee.

Through procedural hijinks (including the imposition of a 1863 war tax that could only be paid in person) the estate was purchased at auction by the federal government, where the mansion was looted and Union soldiers interred, leading Robert E. Lee to wage a legal battle after the end of the Civil War that led all the way to the steps of the Supreme Court:

Asserting ownership of the property, Lee asked the Circuit Court of Alexandria, Virginia, to evict all trespassers occupying it as a result of the 1864 auction. As soon as U.S. Attorney General Charles Devens heard about the suit, he asked that the case be shifted to federal court, where he felt the government would get a fairer hearing. In July 1877, the matter landed in the lap of Judge Robert W. Hughes of the U.S. Circuit Court for the Eastern District of Virginia. Hughes, a lawyer and newspaper editor, had been appointed to the bench by President Grant.

After months of legal maneuvering and arguments, Hughes ordered a jury trial. Custis Lee's team of lawyers was headed by Francis L. Smith, the Alexandrian who had strategized with Lee's father years before. Their argument turned upon the legality of the 1864 tax sale. After a six-day trial, a jury found for Lee on January 30, 1879: by requiring the "insurrectionary tax" to be paid in person, the government had deprived Custis Lee of his property without due process of law. "The impolicy of such a provision of law is as obvious to me as its unconstitutionality," Hughes wrote. "Its evil would be liable to fall not only upon disloyal but upon the most loyal citizens. A severe illness lasting only ninety or a hundred days would subject the owner of land to the irreclaimable loss of its possession."

The government appealed the verdict to the Supreme Court—which ruled for Lee again. On December 4, 1882, Associate Justice Samuel Freeman Miller, a Kentucky native appointed by President Lincoln, wrote for the 5 to 4 majority, holding that the 1864 tax sale had been unconstitutional and was therefore invalid.

Tipsters, I appreciate it but try to send stuff that at least relates to this century.

Dean Hausler Continues Effort to Collect Assets From Cuban Government

You may recall the continuing efforts by Roberto Martinez, on behalf of longtime and beloved UM Law School Dean Hausler, to collect on a default judgment against the Cuban government relating to the 1960 torture and death of her brother Bobby Fuller.

The latest twist is a case recently removed and pending before Judge King in which Dean Hausler seeks to garnish funds allegedly retained by Tata Communications, a telecommunications company. Tata is represented by Michael Higer.

You can read the docket here.

Michael's answer (filed in state court before removal) asserts that the plaintiffs bear the burden and have not shown that ETECSA -- the telecommunications provider in Cuba -- is an instrumentality of the Cuban government and, even if it was, his client owes no money to it.

Higer also asserts that this case is entirely different than the Hausler I, the case brought against telephone provider EmtelCuba, in which there was no dispute that EmtelCuba was an agent or instrumentality of the Cuban government, and thus subject to garnishment for a judgment against the Cuban government.

The answer asserts that the extant evidence indicates that ETECSA is owned by Dutch, Italian, Panamanian and Cuban companies and thus would not be an agent or instrumentality of the Cuban government under existing law.

That seems like a tough sell, but who knows?

You can see some wonderful photos of Dean Hausler here.

Wednesday, October 28, 2009

Judge Ryskamp Affirmed In Reducing FLSA Attorney's Fee Request

Boy oh boy, posts about two of my favorite subjects all in one day.

I know -- going to the well.

So you guys remember the time Judge Ryskamp slashed fees in a FLSA case by 60 percent because of excessive requests for extension of time to respond to discovery?

You're right, let me be more specific:
The Court is concerned, however, that the total number of hours claimed, 547.5, is unreasonable. Plaintiffs filed an extraordinary number of motions for extensions of time in this matter. Indeed, on August 16, 2007, the number of extensions requested from Plaintiffs became so excessive that the Court barred Plaintiffs from seeking any further extensions. The extensions were largely filed because Plaintiffs struggled with responding to discovery requests in a timely manner. Plaintiffs’ counsel billed for time spent requesting these extensions. Defendant cannot be expected to bear the financial burden for Plaintiffs’ counsel’s inability to comply with discovery deadlines. Plaintiffs' dilatory conduct reached the point Defendant was forced to file a Motion to Compel Discovery and Deem Facts Admitted. Plaintiffs' counsel also spent several hours drafting an opposition to Defendant’s motion for rehearing regarding the motion to amend the complaint. Defendant filed a motion for rehearing due to a clerical error on the part of the Court: the Court initially granted the motion to amend because it failed to note that Defendant had filed an opposition to same. It was plain from the docket that the order granting the motion to amend was premised on the administrative error, but Plaintiffs nonetheless opposed the motion for rehearing. Plaintiffs have also submitted fees in a relation to a summary judgment motion, but Plaintiffs never moved for summary judgment in this matter. The hours spent researching and preparing this motion are not compensable because they had no effect on the outcome of this matter.

This litigation was not complicated. Litigation of this matter consisted largely of responding to discovery requests, examining the applicability of potential defenses and negotiating settlements. Although this matter involved 11 Plaintiffs, FLSA cases frequently have multiple plaintiffs. The larger number of plaintiffs in this matter did not alter the legal complexity of this case: this case boiled down to a question of numbers – the amount of additional compensation to which Plaintiffs were entitled. The legal questions presented in this case were not difficult or novel. The motions practice was virtually nonexistent; there was no motion to dismiss, nor was there was there a motion for summary judgment. The Court therefore applies a 60% reduction to the number of hours each counselor or paralegal claimed in this matter, reducing the number of hours claimed from 547.5 to 219.

The Judge also denied any discovery into what defense counsel billed in defending the case and also any time spent trying to get at those figures. He even bounced as unsubstantiated a request for travel expenses to take two depos in Tampa, even though no one disputes the depos were taken. Maybe they used a teleporter to get there?

So plaintiffs' counsel -- the lovely and talented Melanie Damian and the not especially lovely but also talented Tim Schranck (I hope I spelled it right this time, Tim!) -- took it up, and in an order today the 11th affirmed, and included this cryptic statement:
Finally, we conclude appellants’ claim of bias is meritless.
First of all, sorry about the hit, fellas.

Second -- anyone know what that last line is about?

3d DCA Watch -- Safe Inside The Bunker Again!

Yes, folks, the moment we have been waiting for has finally arrived -- the long national nightmare of having to pay for your own parking at the 3d DCA has come to its own inglorious end, not with a bang but with these few simple words:
Beginning Monday, October 26, 2009 the Court will resume hearing oral arguments at the courthouse located at 2001 S.W 117th Avenue, Miami, FL 33176.
Just as suddenly as they appeared, the dark overlords otherwise known as the "FIU Parking Authority" (pictured above) have been forced back to their subterranean cells, no longer free to taunt or target for sport those of us who merely want to enjoy free coffee and a delightful morning of oral arguments with this chilling phrase: YOU MUST PAY THE METER CHARGE YOU MUST PAY THE METER CHARGE YOU MUST PAY THE METER CHARGE YOU MUST PAY THE METER CHARGE


I want to continue, but it's hard to describe my emotions -- a mix of relief, joy, exhaustion, tinged with a touch of disbelief. Could this be real?

So I'm slightly wary but willing to trust again, I want this to work, I really do, so let's tentatively proceed from a very safe place with this week's 3d DCA Watch:

Skylake Insurance v. NMB Plaza:

I've often wondered "do the FL Bar sections really do anything"?

Well apparently they do:
The question, then, is whether the lease must also comply with the two witness requirement of section 689.01. In accordance with the views of the Real Property, Probate & Trust Law Section of The Florida Bar as amicus curiae, we hold that the answer is yes.
The Court then drops this footnote:
The Court expresses its appreciation to the Section for submission of its amicus brief.
You're not kidding -- way to farm out the hard stuff!

I wish I could have had the Probate and Trust Law Section handle my T&E class with Professor Gaubatz. (RIP).

Honeywell v. Guilder:

The 3d reverses a $24 million dollar verdict involving asbestos exposure and peritoneal mesothelioma, finding there were issues with Fabre and with a portion of a letter introduced at trial that was "unfairly prejudicial."

Yep -- bad facts can do that sometimes.

818 Asset v. Neiman:

Once again the 3d revisits default judgments and motions to set them aside.

This time a three-judge panel can't agree on the proper standard or even the proper facts on appeal, leading to a lengthy special concurrence by Judge Wells and an even lengthier dissent by Judge Shepherd.

Perhaps we should just wipe the slate clean on this area of the law and start from scratch.

Actually, there are several areas of Florida law that could probably use a hard reset.

But where to start?

Congress Held An Iqbal Party!

I had some time on my hands yesterday, so I went ahead and did a Jay Z-White Album-style mashup of the Congressional testimony on Iqbal yesterday and John Lennon's seminal Plastic Ono Band album from 1970 -- it starts with a gong and a raspy-voiced John primal screaming "Mama don't GOOOOOOOOOO!!, Iqbal stay home" and ends with Lennon cooing to Arlen Specter "Rule 8 and me, that's reality."

I think it came out pretty.....what, was I the only one to think of that?

But can you believe a group of Congresspeople actually got together yesterday on the Hill and discussed Iqbal, which has already been cited 2700 times in federal court:

"The Iqbal decision will effectively slam shut the courthouse door on legitimate plaintiffs based on the judge's take on the plausibility of a claim, rather than on the actual evidence," Nadler said. The bill will be similar to one introduced earlier this year in the Senate by Sen. Arlen Specter (D., Penn.) but will spell out the new standards more specifically.

The proposed legislation would return pleading standards to where they were after the Supreme Court's 1957 Conley v. Gibson decision, which stated that defendants should have "fair notice" of any claim, but said only cases lacking strong evidence should be dismissed.

Hmm, I've heard of that before -- it's called Rule 8(a).

I knew Specter was old, but he's going all the way back to 1957 and Conley v. Gibson -- hail, that's pre-Mad Men old.

Not so fast, says the dude who actually argued Iqbal, who predicts Gloom and Doom, cats and dogs etc. if we go back to the way things used to be just five months ago:
If passed, the bill could raise legal fees for companies. Electronic discovery proceedings can cost millions of dollars and even tens of millions in anti-trust and other complicated cases, said Gregory Katsas, former U.S. assistant attorney general who helped represent the U.S. government in Ashcroft v. Iqbal.
Come on -- you'd have to be a pretty bad lawyer if you couldn't get a motion to dismiss granted pre-Iqbal if your grounds were that strong.

The problem is the nearly formless "implausibility" standard, which introduces a huge amount of judicial discretion at too early a stage:
"The bottom line is that the Supreme Court knows what the impact of this decision is," Johnson said. "Even defense lawyers have called the Iqbal decision an unexpected gift for the business community."
You know, I find plenty of things "implausible" -- Drew Barrymore dating that idiot from the Mac commercial, for example, but should I get to decide everything?

Ok, don't answer that.

Tuesday, October 27, 2009

UF Frat Permitted to Be Most Boring In Nation!

I don't know about you, but I don't recall Charlie Crist or my rush hazing to be anything like this wholesome little frat at UF, which is the subject of this 11th Circuit opinion today written by Judge Tjoflat:
BYX is a national fraternity founded in 1985. It has twenty-two chapters in nine states. According to its constitution, it “exists for the purpose of establishing brotherhood and unity among college men based on the common bond of Jesus Christ.” BYX espouses a strict approach to the Christian faith, and membership in the fraternity is contingent upon what the fraternity deems “a credible profession of faith in Jesus Christ.” This requires agreement not only with the traditional core Christian beliefs and values contained in such ancient expressions as the Nicene Creed, but adherence to a demanding view of the faith. In its doctrinal statement, BYX explains that members must “believe that the Bible is God’s written revelation to man, that it is inspired, authoritative, and without error in the original manuscripts.” Accordingly, BYX bars from membership non-Christians, Roman Catholics, and adherents to the traditional Christian orthodoxy taught by the mainline Protestant denominations.

BYX also demands moral and “sexual purity.” According to its code of conduct, BYX believes that “sex is a gift of God to be enjoyed inside the covenant of marriage between a man and a woman. Therefore, we will not condone such activity as homosexuality, fornication, or adultery.”

. . . .

After admission into the fraternity as a pledge, the applicant must complete the pledge process. The purpose of the pledge process is to examine the applicant’s understanding of salvation, his personal relationship with Jesus Christ, and his willingness to accept and promote BYX’s doctrine. As part of the process, the pledge must participate in BYX’s “Big/Little Brother Program” and is assigned to an active member of the fraternity who serves as the pledge’s “Big Brother.” The Big Brother is required to watch over the pledge and ensure that he is conducting himself in conformity with the fraternity’s code of conduct. Ideological, theological, and moral purity are central elements of BYX’s foundational purpose, and the “Big Brother” program is designed as a safeguard against the pledge going astray. As BYX’s constitution states,
BYX has fulfilled its purpose over the years, and Satan hates it. He wants to sift this group like wheat and is roaming on [ ] campus like a roaring lion waiting for the chance to destroy us. If the devil sifts our group, he will probably do it primarily through alcohol, but also through sexual impurity or lust, pride, laziness, and contention. So be on your guard.
The “Big Brother” is the first line of defense against such impurities and influences infiltrating the group.

. . . .

All BYX members and pledges participate in Cell Groups, which are weekly meetings where the members and pledges hold one another accountable to living consistently with BYX’s Christian beliefs and values. BYX also holds weekly meetings, which include prayer, worship, encouragement of specific members, a testimony or Bible message from a fraternity member, and announcements pertaining to fraternity business.
Ummm -- sounds like fun??

Forget Fast Times, Animal House, or even Revenge of the Nerds.

Haven't any of you guys seen PCU? Real Genius? Back to School?

Does any of this ring a bell at all?

Related -- do any of you know a lawyer in Leesburg?

A Tale of Two Lawyers And President Obama -- OK, Three Lawyers (UPDATED).

So you probably heard our President was in town yesterday for a fundraiser on Miami Beach.

Two South Florida lawyers had very different reactions.

Here's one from Kirk Wagar in today's NYT:

“We could have the president here twice a month and we’d have great events,” said Kirk Wagar, a Miami lawyer who served as a finance chairman of Mr. Obama’s campaign in Florida last year. “People are very invested in him.”

Mr. Wagar was among the 450 people who gathered Monday evening to see Mr. Obama in his first visit to Miami since taking office. The back-to-back events for the party’s senatorial and Congressional campaign committees raised $1.5 million, aides said, and provided the president a chance to be energized by a friendly audience.
Among the 450 people who attended was also RRA attorney Mike Pancier, who despite his evidently conservative leanings still met with The Prez.

He had a slightly different reaction:
So you may ask, "Cigar Mike, why are you there and why do you shake his hand?" Simple. I'm there cause I have connections and I will not pass up a photographic opportunity such as being able to photograph the President of the United States. Why do I shake his hand? Well, he's my President, even if I don't agree with him and frankly, I wanted to show the leftist nuts out there that unlike them, we can show respect for the President even if we don't agree with him. Their memories are too short, but we remember how they treated GW Bush. But as they say, tomorrow it will all be history and I'll continue my fight to keep the Dems policies from becoming law by focusing on the real issues out there and not on the ridiculous like those birther folks that were across the street from the hotel.

It was my turn to meet the President and I told him “it is a pleasure to meet you, Mr. President.” I shook his hand, he told me “thank you for all your help,” a photo was taken, and I was on my way as the next person got his turn to take his photo with the President.
SFDB gives his take here.

I'm glad Mike shook the President's hand, and glad he does not support the Birthers.

BTW, I certainly would have shook W's hand, though I doubt I would have my firm help sponsor the event (hey, times are tough!).

UPDATE -- Mike was kind enough to share a few quality pics he took at the event, which I have added above.

That last one Mike -- oy, do libs know how to party!

Should Lawyers Tell Jokes?

That's the question raised by the above video appearing on a new YouTube-like site for lawyers called LegalTube.

Ok, it's mildly funny but am I missing something? Is this supposed to be a marketing tool?

I'll stick with Carlin for now.

Then there's this profile of Doral lawyers Michael Wermuth and Ricardo Gonzalez from today's Herald. It's part of a new series by Herald writer Doug Hanks designed to highlight any discernible glimmers of recovery in the current dismal economic environment -- he's calling it "Green Shoots."

I'm not sure you can draw any broad conclusions for the general marketplace from the experience of these lawyers, or even whether you can apply it more specifically to the South Florida legal community as a whole.

Basically these guys, who seem like good lawyers, have a real estate, business and transactional practice, much of it coming from South America, and as the economy soured they continued to bill a lot but collections fell off.

Now, however, collections are on the rise:

For Gonzalez and Wermuth, cutting the firm's collections list has given them hope that the businesses they represent are shifting attitudes, too. Outstanding bills have dropped from 75 percent of billed hours to about 25 percent.

Instead of sensing disaster ahead, the lawyers say, their clients see some hope of new profits.

``It's not like all of a sudden we have another bull run,'' Wermuth said. ``But at least people made the adjustments they needed to make.''

``They cut down their costs,'' Gonzalez added. ``They cut down their overhead. Now ``they're looking for opportunities.''

Does that translate to the legal community as a whole, or beyond? I hope so, but we would need a lot more data beyond a few anecdotes to make even an educated guess.

All we know for sure is Alan Becker says 2009 is "stable," so that's pretty much a lock. Time to trade up my Porsche!

Monday, October 26, 2009

Ben Kuehne Freed!!!

Well, not quite (it's kinda my version of the "CASTRO ALMOST DEAD" teasers the Herald has been feeding readers every couple of months for the last decade or so).

Still, as David says, let's hope the feds dismiss the rest of the case.

Nice opinion by Judge Barkett, which concludes that Judge Cooke's opinion below was "eminently correct."


UM's Foreclosure Fellowship Program Gets National Attention

It's nice to see a good idea reach fruition, as is the case with UM Law Professor Michael Froomkin's Foreclosure Fellowships, which received national attention in this Time article:

That specter of judicial paralysis helped spur UM law professor Michael Froomkin to create the foreclosure defense program. It places fledgling attorneys like Paschal with legal aid service organizations to help tackle the backlog of cases — more than 50,000 foreclosure filings so far this year in Miami-Dade County alone. Many homeowners don't know what legal defenses are available to them as they battle lenders to keep their properties — or at least make foreclosure less painful, and costly. "Potentially, one of the most significant [defenses] is that the lender, because so many home loans were securitized during the housing boom, often doesn't even know who owns the mortgage anymore," says Froomkin. That, he adds, could throw into question the lender's right to bring the foreclosure case in the first place.

Carolina Lombardi, senior attorney at Legal Services of Greater Miami Inc., which is mentoring some of the UM fellows, says foreclosure defendants also need attorneys to help them fend off all too frequent lender practices such as exorbitant escrow claims. "Homeowners who have lawyers are usually prevailing in those cases," says Lombardi. But she notes that unless homeowners fall below the federal poverty line ($22,000 for a family of four), they can't qualify for the free legal aid that agencies like hers provide. That creates an obstacle for most foreclosure defendants, who aren't impoverished but, due to job loss and other circumstances that brought them to the brink of losing their home, often can't afford a lawyer.

Another impediment is foreclosure law itself, a bureaucratically convoluted field worthy of a Dickens novel. "It's a labor-intensive area of practice," says Paschal. "It involves a ton of paperwork." Yet another is the relatively low pay attorneys usually reap from defending foreclosure clients. Melanca Clark, counsel at the Brennan Center and co-author of this month's study, urges Congress and state legislatures to create incentives, like more funding for foreclosure legal representation, that "level the playing field" against lenders and their comparatively well paid lawyers. Restrictions on government funding for legal services should be relaxed, she says, especially rules that don't let victorious foreclosure defendants collect attorney fees, as prevailing parties in most other kinds of civil litigation do. "We need structural reforms as badly as we need more [foreclosure defense] lawyers," says Clark.

The Professor also points to this NYT article from Saturday on how some judges are holding banks' feet to the fire on producing the underlying mortgage documents, which in one case led a federal judge to dismiss a claim based on a securitized mortgage where the alleged assignee could not provide proof that it owned the underlying note, effectively wiping out a $461k debt.

I'm fine with all that, provided the Judge who dismissed the case did so without the slightest hint of compassion.

Sign of the Times -- Robert Zarco Abandons Extravagant Travel Policy

Hi folks!

So overall it was a pretty good football weekend, no?

Not to get all Iqbal-centric on a bright Monday morning, but I see that the House Judiciary Committee will be holding hearings this week on the dreadfully imprecise Iqbal pleading standard.

It's about time, I say.

I guess now that the folks in DC fixed health care, ended our wars, and restored our shattered economy they can get on to some important legislation for a change.

Vanessa Blum has a nice overview in today's DBR regarding law firms and how managing partners see the upcoming year.

Naturally, no one wants to say -- "it sucks, the clients are not paying, the work is drying up, the costs are out of control, and this year looks worse than last year."

So we hear lots of blather about energy-efficient lightbulbs, trimming fancy dinners and signing megabuck leases as a way to cut costs.

But then I came across this quote from the very wealthy and successful Bob Zarco:
Even Miami franchise law attorney Robert Zarco, a multimillionaire known for his extravagant fashion taste, said he reined in travel and entertainment spending at the 11-lawyer Zarco Einhorn Salkowski & Brito.

“I’m just being a little more cautious,” he said. “We used to stay in the absolute nicest hotels. We used to rent the most luxurious vehicles and eat in absolutely the most expensive restaurants.”
You're not kidding.

Just last year Bob was featured in a Herald article that focused on his high-flying travel expenditures:

Even so, the frequent traveler does not leave home lightly. He insists on five-star accommodations even when clients won't pay for it, making up the difference out of his own pocket.

"When I travel I am leaving my family, I am leaving the comforts of my home to work for someone else, " he said. "I live in a very nice home. I live very comfortably."

So when he's on the road, he tends to sleep in a Peninsula or a Ritz-Carlton, two of the country's priciest hotel chains. He's such a loyal customer that one Peninsula keeps sheets for him embroidered with "RZ."

Holy hail, if Zarco has been forced to endure a night's rest without his personally monogrammed sheets when he stays at the Peninsula, what is the world coming to?

I mean, what's next -- having to forgo the shrimp appetizer before the afternoon deposition? That's just unacceptable.

Seriously, what other indignities can a man be expected to endure?

Friday, October 23, 2009

SFL Friday -- Sand Pebbles Edition

Well kids it's the end of another work week (unless you are working all weekend or don't have a job at all), so I'm flying the coop to catch some late afternoon waves.

One thing I won't be doing is spending two weeks with sand in my shorts (if someone can tell me how to upload docs I could have broken that story with help from a certain Guest Blogger).

And I see John Travolta wants to move his extortion case to Jacksonville.

Good idea, but have you seen Jacksonville?

You know, life is too short to dwell on negative things. You already know my thoughts on a happy marriage, and it's important to spend time on things that matter, like putting your hands on all the right places.

Have a great weekend everybody!

You Don't Want My Metadata.

A few years ago everyone wanted to talk about "metadata."

There were CLE seminars on it, papers, you name it.

Of course the Florida Bar got involved and the Florida Bar Board of Governors held a conference and naturally everyone got very worried about it -- so worried that several of the board members hadn't heard the word "metadata" until the meeting in which they immediately voted to denounce it.

I don't want to say it reached what I would describe as the highest level of inordinate outsized media attention --"flatbread mania" if you will, but it got up there.

Add to that the annoying obligation recently imposed by the CM/ECF system to check off your awareness of your redaction responsibilities every time you log on -- thank you, stupid bankruptcy lawyers! -- and you have a perfect storm of y2k-style paranoia brewing.

Just a few moments ago I received this email from a federal district court advising that even your well-intentioned yet totally lame redaction methods may be inadequate:
Some redaction techniques used when e-filing are ineffective, in that the text intended to be hidden or deleted can be read via a variety of techniques. And, because information about the document, called "metadata", is also stored inside the document, it is often viewable as well. Examples of metadata and hidden data include the name and type of file, the name of the author, the location of the file on your file server, the full-sized version of a cropped picture, and prior revisions of the text.

E-filers must use extra care to make sure that the PDF documents to be submitted to ECF are fully and completely free of any hidden data which may contain redacted information. The protection of sensitive data can be compromised if improper redaction techniques are used. Here are a couple of examples of sensitive-data visibility issues:

* Highlighting text in black or using a black box over the data in MS Word or Adobe Acrobat will not protect the data from being able to be seen. Changing the text color to white so it disappears against the white screen/paper is similarly ineffective.

* Previous revisions and deleted text may be able to be seen by manipulating an Adobe Acrobat file.

If somebody wants to take the time to unpack my one page notice and learn that I spent half the day rewriting the first page of the brilliant graphic novelization of Kafka's Metamorphosis to include wild half-man, half-bug sex between Gregor Samsa and Drew Barrymore, so be it:
One morning, as Gregor Samsa was waking up from anxious dreams, he discovered that in his bed he had been changed into a monstrous verminous bug. He lay on his armour-hard back and saw, as he lifted his head up a little, his brown, arched abdomen divided up into rigid bow-like sections. From this height the blanket, just about ready to slide off completely, could hardly stay in place. His numerous legs, pitifully thin in comparison to the rest of his circumference, flickered helplessly before his eyes.

“What’s happened to me,” he thought. It was no dream. His room, a proper room for a human being, only somewhat too small, lay quietly between the four well-known walls. Above the table, on which an unpacked collection of sample cloth goods was spread out—Samsa was a travelling salesman—hung the picture which he had cut out of an illustrated magazine a little while ago and set in a pretty gilt frame. It was a picture of Drew Barrymore from her January 1995 Playboy pictorial, with several well-placed tattoos and a smile that could make a man go buggy with primal animal desire. She sat erect there, lifting up in the direction of the viewer a solid fur muff into which her entire forearm had disappeared.
It goes on from there, but you get the picture.

There, I hope it was worth it, all you efiling metadata thieves -- happy now?

Judges Still Mastering New "Email" Technology.

I was in a pretty surly mood when I came in this morning, what with the continued news of layoffs and terminations -- just this week we had Foley & Lardner, SSD, and the continued reports of drips and drabs at Akerman.

But like they say about the weather in New England, if you don't like it just wait a while:
Faber, elected in 2006, said in his memo that the old system, which would have ignored Arzola’s years on the county bench, was “demeaning” to Arzola. “As a fellow county court judge, it is demeaning to me,” he said.

Circuit Judge Reemberto Diaz fired off a terse response to Faber’s e-mail.

“Mr. Faber: In the past few weeks, I have received three (3) unsolicited e-mails from you. Let me respond in the order they were received:

1. NO. I don’t know an interior decorator to recommend to you;

2. NO. I don’t want to buy comedy tickets from you;

3. NO. I’m not interested in your misguided opinion about the chief judge’s decision.

This is not Craig’s list nor a blog. Have a good day.”
Why was I not copied on this email?

As a matter of fact, I happen to know several fine interior decorators; I am always up for good live stand-up (who was it, btw?); and I would indeed be very interested in Judge Farber's (or "Mr. Farber," I guess) "misguided opinion" on the Chief Judge's decision, interior decorators, comedy tickets or anything else.

And, for the record, this is in fact a blog.

To sum it up, Susannah A. Nesmith's story today is a must-read, filled with small charms at nearly every turn.

For example, there's this from Judge Cuerto, who is upset that he got passed over for criminal court by Judge Arzola:
“I do not want to bring any negative publicity to our branch of government, which is still held in high regard in the community,” he wrote in the e-mail to all judges in the county.
Ok, I think that's a fair statement, but will all these emails help?

At least someone has a sense of humor -- Judge Pineiro, in a nod to Three Stooges fans everywhere, called for the inevitable:
“Alright, I think it is definitely time to resolve this discussion and bring it to a dignified conclusion — one which will make us proud,” he wrote. “I suggest pies (preferably apple) at 10 paces.”
See, this Judge has both an appreciation of classic comedy and an understanding of the limits of email privacy.

Whichever way the pie crumbles, thanks for turning around my morning!

Thursday, October 22, 2009

Lawyer Spotlight -- Steven Marks

Steven sure has generated a lot of news recently.

First, there's the $22.5 billion Bank of New York Russian customs case, which settled for $14 million (prior coverage here).

Then there was Judge Huck's ruling in the Dole matter, which has a number of facts that aren't too hot, as noted by CNNMoney's Roger Parloff:

The broad terms of Huck's ruling make its reasoning virtually certain to control the outcome of a companion DBCP case known as Herrera Rios v. Standard Fruit Co., in which U.S. Lawyers were expected to seek enforcement of another $800 million in Nicaraguan court judgments.

While Judge Huck did not reach the question of fraud, he did note, as relevant to the due process issues, that the Nicaraguan judge in the Osorio case had prevented Dole from introducing into evidence 151 birth certificates indicating that at least 32 of the 150 prevailing claimants in the Osorio case (representing $21 million of the $97 million judgment) had fathered at least one child after his last alleged exposure to DBCP.

One plaintiff, for instance -- who had been awarded $574,880 for sterility and related mental distress -- had, by his own admission, fathered at least four children after his last DBCP exposure. (Dole's evidence suggested that this plaintiff had actually fathered nine children in all, including eight after his last exposure.)

Huck also found that, even assuming the plaintiffs' medical claims were accurate -- the Nicaraguan procedures had not permitted Dole to test the plaintiffs independently -- more than half of them (78 of the 150) "suffered from injuries for which, according to the unrefuted medical testimony presented to the Court, there is no medical evidence that DBCP is capable of causing."

The average recovery in both the Osorio and Herrera Rios cases was about $650,000 per plaintiff, which is a lot of money in a country where most of the population earns less than $2 a day. According to Judge Huck's ruling, Nicaraguan labor law ordinarily requires employers to pay no more than $1,240 to compensate the family of a worker who has died or become totally disabled due to occupational hazards.

So let's see -- no forum nons to Ecuador, now Nicaragua, the list keeps growing.....

Finally, Steven just filed this interpleader action before Judge Gold involving disputed fees arising from the Siber Air settlement.

Boy, I sure hope he checked the redaction box, we don't need any more issues coming up this week.

"Days Are Days" (UPDATED)

I don't know about you, but a significant part of my day consists of haranguing my paralegals and young associates regarding calendaring of motions and response times.

Frankly, it's often a highlight -- watching them use their hands, fingers, and other body parts to count, forgetting holidays no one knew existed, and getting wrong which day to start or stop counting and why.

Good times.

Unfortunately, those days will soon be gone:

On December 1, 2009, unless Congress acts otherwise, the way you compute time in federal litigation will change significantly. The Supreme Court has transmitted new rules to Congress that institute a “days are days” approach to computing the time periods in the appellate, civil, bankruptcy, and criminal rules. The new rules will include intermediate weekend days and holidays in calculating deadlines. Thus, the Court has also adopted amendments to a number of the rules that extend virtually all short deadlines. Of course, the district courts will have to revise their Local Rules accordingly, which may lead to some confusion if the revisions are not made quickly or accurately.

Who is in charge of coordinating the Local Rules -- "quickly and accurately" -- assuming these changes go through?

Oh boy, somebody better get on this fast.

UPDATED -- At Scotty's request and because he's such a good sport, I have included what some might argue are more flattering photos of our resident rule-writing king.

(To be honest, I'm not sure about that last one)

Wednesday, October 21, 2009


Listen, I understand it's not a good thing to publish Social Security numbers or other personal information in public forums (hey, that's what Facebook is for!), so I get why CM/ECF has recently started to highlight that issue.

But every single time you log in? You mean we all will have to separately click that box for the rest of our legal career, every single time, every single day we try to access PACER -- perhaps thousands upon thousands of times?

I guess we really are that dumb.

Totally unrelated -- did you hear Sarah Palin is going to speak at a real college? It's something called College of the Ozarks and its nickname seriously is "Hard Work U."

According to the school's student handbook (portion highlighted above), this may be one of the few decadent, sicko liberal fornicatin' colleges that even George L. Metcalfe can get down with.

Since we're on the topic of God-given sexuality, does the public option turn you on? I was kinda lukewarm on it, but I suddenly have a strong interest in its passage now that it is literally personified by the lovely Heather Graham.

I hope everyone has had a chance to read the motion for rehearing en banc that was just filed regarding the recent ILSA opinion by the 11th Circuit. It minces no words, and argues flatly that the Panel decision "was the result of obvious bias."

Finally, speaking of alleged bias, this Orly Taitz is one hot crazy mama -- she has granted one of my many wishes and has appealed Judge Land's Rule 11 sanctions order to the 11th Circuit in an unusually detailed notice of appeal.

There are lots of highlights, but here's my favorite part:
Judge Land’s actions that amounted to misstating or misrepresenting ninety percent of what was presented in the pleadings and argument, completely ignoring ninety percent of the argument and facts, making extremely rude and demeaning remarks, showing bias; taken together, appear to be designed to silence her and, intimidate her and above all, punish her for what the Court perceived as political rather than “core” constitutional questions. It appears to be a thinly veiled threat to other attorneys not to pursue similar Constitutional issues, which will have a chilling effect on the ability of the public to use the Federal Court system to uphold their constitutional rights. Judge Land’s remarks amounted to nothing short of political lynching, which turned into feast and celebration by the media mob.
So I guess she's saying Judge Land got 10 percent of it right?

Maybe I'm jaded, but that's not too bad a percentage when you think about it.

Holy hail it feels like Friday.

3d DCA Watch -- Judge Salter Takes His Foot Off The Brakes Edition

Hi kids, well it was a busy day in the temporary bunker, what with the now nearly frenetic coffee-swilling, the elaborate robing ceremonies that occur more and more frequently throughout the day, and of course FIU's refusal to comp the lawyers for free parking, so let's get right to it:

Ramos v. FPL:

The PSC and FPL have been in the news a lot lately, so it's no surprise to see the 3d DCA try to grab some of the limelight.

Finally -- thanks to Judge Salter -- we are beginning to get a quasi-clear picture of when you can sue a regulated utility in state court.

Short answer -- when you have consequential damages:
In Albert Litter Studios, we held that “[i]n order to resolve the jurisdictional issue, we must first look to the nature of the relief sought by the plaintiff because it is the nature of the relief sought, not the language of the complaint, that ultimately determines which tribunal has jurisdiction over the claim.” Id. 896 So. 2d at 893. The nature of the relief sought by Ramos is those consequential damages that allegedly flowed from a grossly negligent claim of meter tampering and electrical cutoff, not merely a dispute about the charges for electricity. Although FPL maintains that the “customer complaints” sections of the Florida Administrative Code and the FPL Tariff provided Ramos with “available and adequate remedies,” we disagree.
That won't stop FPL from continuing to ring that "exclusive jurisdiction" bell every chance it gets, but it at least provides some guidance to trial judges and practitioners.

Ford v. Hall-Edwards:

It was just a normal day in state court, the day Judge David Miller declared the Ford Explorer (three model types and eleven model years) a "Public Hazard Pursuant to §69.081."

I've never heard of anything like that before, so let's see what the motion requested:
The motion asked the trial court to make a finding that “the Ford Explorer” is a “public hazard” under section 69.081, Florida Statutes (2008),2 and to “enter no order concealing the ‘public hazard’ from the public and prevent FordMotor Company from concealing any information related to the Ford Explorer, including but not limited to trade secrets and other protected, confidential, and/or privileged documents.” (Footnote added).
I'm still confused. Maybe the evidentiary hearing can clarify what this is about:
At the hearing, the trial court declined to hear Ford’s witnesses. A review of the transcript of the hearing discloses that it was not an evidentiary hearing in any traditional sense of that term, but rather a lengthy colloquy between the respondent’s counsel and the trial court, a limited amount of questioning directed by the court to Ford’s counsel, and then a review by the court of documents that were not authenticated or introduced into evidence.
Seems ok to me!

Still, that detail-oriented Judge Salter had a problem with this -- what a stick-in-the-mud. He even drops a footnote discussing "slushy" evidence, something I only think about if at all after I'm two or three Gibsons into an evening (thank you, very astute reader!).

Whitney v. A Aventura:

Does anyone remember 1993?

If I recall correctly, Bill Clinton was President, everybody was making a lot of money, and Sleepless in Seattle was inexplicably a very popular movie.

So things were not all good.

But apparently, also in 1993, the appellant had a final default judgment entered against him. In 2007, he filed a motion to have the judgment set aside, claiming he did not receive various pleadings and orders.

Judge Genden said "no deal, sucka!" (I'm paraphrasing), and a very busy Judge Salter agreed, dispensing this wisdom to pro se litigants:
The cautionary message to parties who have been sued and then elect to proceed without legal representation is this: keep a watchful eye on the case, whether by inspecting the court file or checking the on-line docket. The fact that a self-represented person does not receive further mailings regarding the case does not itself protect her or him from an adverse judgment, because certificates of service by counsel are presumptively valid. Ignoring a lawsuit after service of the original complaint (and absent dismissal with prejudice of all claims) is the legal equivalent of ignoring the dashboard signal for “no brakes” in a rapidly-moving automobile.
Actually, this is sage advice and I agree with it completely, but I would just add that Chris Farley back in 1995 provided a pretty good visualization of what Judge Salter is talking about.

Michael Pizzi's Law Office Ablaze!

That blue-eyed Mayor and talk show host, Michael Pizzi, found out late last night that his Miami Lakes law office was mysteriously ablaze.

According to a spokesman from Miami Lakes interviewed by CBS4, the police suspect possible arson.

Michael claims he "will not be deterred."

Sheesh, first Barton G., now Michael's office -- why all the fires all of a sudden?

Tuesday, October 20, 2009

It's Here, It's Here, It's Finally Here!!!

Hoo boy I feel like a kid who opened up his Hanukkah present two months early and -- instead of some slacks and a nice belt -- found a bottle of Malaccan gin and Bo Derek holding two glasses and wearing nothing but a smile and some windsurfing gear.

Wow that got a little weird, I better start again.

Blogger extraordinaire Random Pixels (who is a pretty darn good photographer too) was at the Gerald Posner book reading the other night and came across a furry, bespectacled curmudgeon wearing what looks like a umpire outfit stolen from a local South American soccer league.

It turned out to be human, and -- to my unceasing delight and amazement -- Glenn Garvin.

You can tell Bill is an excellent photographer because he actually manages to make his subject look sympathetic and personable, which evidently disproves that old adage about polishing very small objects.

Nice work!

11th Circuit Tip To Aspiring Litigants -- Don't Get Assaulted At A Strip Club

There are few certainties in life, but one universal rule seems constant -- if you refuse to leave a strip club at closing time, you will in fact get the s$#t beat out of you.

The 11th Circuit upholds the validity of this maxim in an unpublished opinion affirming Judge Marra's summary judgment in a case involving the company Seductions LLC, which appears to be doing business as Hotties Gentlemen Club/Goldfellas:
Mauricio Arana was injured in 2006 when Seductions employees allegedly beat and threw him out of the company’s nightclub after he refused to leave at closing time. The Aranas subsequently sued Seductions in state court to recover damages for Mauricio’s injuries, medical expenses alleged to exceed $1 million, and loss of consortium. The Aranas’ complaint alleged that Seductions had negligently hired, retained, trained, and supervised the employees responsible for the attack.
The coverage issue centered on whether the claim sounded in negligence or arose out of an assault and battery, which was limited to $25,000 under the terms of the policy.

Guess which way the 11th came down?

Glenn Garvin Equates Rush Limbaugh With "My Humps"

Today's Glenn Garvin op-ed epitomizes everything that is wrong with his columns:
1. It is at least three media cycles too late.

2. It is riddled with factual and logical errors; and

3. See first two points above.
As usual, Glenn rises to the defense of the rich white man (hey, I'm ok with that), and writes that Rushbo got a raw deal because other NFL owners -- like JLo and Fergie -- are just as bad or worse:
Among Fergie's more infamous songs recorded with the Black Eyed Peas is one called My Humps, which goes: I'ma get get get get you drunk/Get you love drunk off my hump -- well, you get the drift.
Yep Glenn, Rush and Fergie are pretty much exactly the same thing -- did you used to work in marketing?

Garvin also drops this whopper:
What got Limbaugh in trouble were purportedly racist comments that mostly turned out to be Internet fabrications.
I see -- "internet fabrications," something totally different from "Glenn Garvin fabrications."

It's true there were several statements attributed to Rush that were not properly sourced. Rush himself denies them in a column published by the WSJ four days ago (see Glenn? -- you're late).

I agree with A.L. on the unverified quotes:
Contrary to what the National Review and Rush's knee-jerk defenders claim, these quotes are not all fabricated. Most of them, in fact, are well-documented (his quote about Donovan McNabb, etc.). Several of them, however, are unverifiable. They come from secondary sources (books and magazine articles about Rush) and supposedly date back to very early in Limbaugh's career. It's not as if there are transcripts of everything Rush has said on air since the 70s, so who knows whether they're true.
That's ok, though, because there are dozens of quotes that Rush has not denied that are just as bad:
The bottom line here is that free market capitalism -- the treasured, fetishistic object of Rush's wet dreams -- spoke and determined that it probably is better to have JLo or Fergie own a piece of a team than Rush:
From a pop culture marketing and public relations perspective, Limbaugh is positively toxic. Of course, Limbaugh's free to push his AM brand of loathing, and within that world he sells lots of ads. But why on earth would sane businessmen who have invested hundreds of millions of dollars in a mainstream entertainment franchise want to be associated with Limbaugh's paranoia and divisiveness? Guess what? They don't want anything to do with the guy.
Thanks Glenn -- you just wasted a chunk of my time on a stupid nonissue and forced us all to revisit a story that everyone pretty much moved on from days ago.

On a happier NFL note, my fantasy team crushed -- crushed -- the Well Hung Jury. All hail Aaron Rodgers!!