Thursday, December 31, 2009

This Is The Year That Was.

Well kids, what I can say about this year that hasn't already been said.


What a rollercoaster we've had here in the South Florida legal world, and I have a feeling there is more to come in 2010.

We've done visual looks back, so this year I was going to offer up some awards, but maybe I'll let you guys do that.

I will, however, throw one out there just to get things started -- best South Florida legal anecdote.

Let's see, there's really only one nominee, hands down, my man -- the Big Man -- Bowman Brown.

Take a bow, Bowman!

On a serious note, I want to thank you readers, whose eyeballs, intelligence, wit, and good sense make this blog what it is.

Thanks for the support and giggles.

May you find 2010 to be safe, prosperous, peaceful, happy, and joyful for you and yours.

Tom Lehman Talks/Buys Wine In the NYT

I was going to do a year-end wrap up, but then I thought I just read about Tew Cardenas lawyer Tom Lehman discussing wine in the NYT?

No, it was not a dream:
And Mr. Truax shepherded Tom Lehman, “our friend from Florida,” he said, around the store.

Mr. Lehman, 57, is a bankruptcy lawyer who lives in Miami but was spending the holidays in the area, and was shopping for a case of wine for himself and his wife. With South Florida still gripped by the recession, business for him has been good this year, he said, so even though he tries to economize by snapping up the wine bargains he sees, he has not had to cut back.

“One of the things that’s alluring about this wine shop is that they get a lot of cellars,” he said, adding that he stops by the store whenever he is in town. “I wish my habits had changed and reduced, but I still continue to buy good wine.”

Hey, same with me -- MD 20/20, Boone's Farm, white Zin, you know, all the good stuff.

Wednesday, December 30, 2009

3d DCA Watch -- Ding Dong Ding Dong

Hi kids it's almost New Year's and the Resplendently Robed Ones have brought out the noisemakers, the legal-in-three-States fireworks, and the heavily swilled, heavily spiked coffee as we launch into this very special holiday edition of 3d DCA Watch:

Morrissette v. NCL:

This case involves someone who may or may not be related to Alanis Morissette.

Nothing else about this opinion is notable.

Valdes v. Optimist Club:

We're finally seeing some pull-back in the expansion of the preemption doctrine during the Bush Years. This well-reasoned opinion by Judge Ramirez seeks to align Florida law with the Supreme Court's recent Wyeth decision.

(Added one more New Year's resolution -- stay away from Tylenol Cold.)

Laquer v. Convergency Plaza:

Hey, once you waive arbitration, you waive it forever.

Industrial Affiliates v. Fish:

"For reasons unknown" Judge Schwartz seems a little ticked at Circuit Court Appellate Division Judges Scott Bernstein, Mindy Glazer, and Maria Espinoza Dennis:
For reasons unknown, the circuit court, appellate division, per curiam denied review of a final order of the Miami-Dade County Equal Opportunity Board awarding damages to the employee, Ms. Fish, in an alleged employment discrimination case.
I know, I hate it when appellate courts just enter per curiams, I mean what kind of lazy slackers do that on a regular basis.....oh, never mind.

Judge Schwartz concludes:
The decision under review therefore represents a clear departure from the essential requirements of the law resulting in a miscarriage of justice and is therefore quashed.
He added, "auld lang syne and Happy New Year!"

"Loan Me Fifty Dollars."


God I miss Neil.

Remember how Rogers often played that old clip of Larry King, asking for a loan?

That came to mind as I reviewed the adversary complaint filed by Herb Stettin against Steve Lippman.

I don't know about your law firm, but does this part sound normal to you:
23. The second set of payments the Trustee seeks to recover includes reimbursements for payments made by RRA to Lippman which were classified in RRA’s financial records as “loans” or “other compensation” and are referred to below as the “Lippman Loans.” These payments were reflected by numerous checks written by RRA to Lippman over a 4 year period from the RRA operating account. Typically, Lippman would deposit each check into the bank account he maintained in the name of Lippman Valinsky & Storfer, and which Lippman and Rothstein both referred to as the “Nest Egg Account.” Usually, within a day or two of deposit by Lippman of the RRA check, he would then write a check out of the Nest Egg Account payable to RRA in an amount less than the check RRA had just given him. These loan payment checks were usually deposited into RRA’s operating account, although some were deposited into one or more RRA accounts denominated as a “trust account” or “real estate account.” The Lippman Loans totaled $8,960,310.75.

24. In some instances, after Lippman received a check from RRA, rather than repaying RRA, he wrote the return check drawn on the Nest Egg Account to third parties including: (a) 10 checks to Sterling Bank, totaling $664,953, although all of these checks appear to have been indorsed by an individual and not the payee bank; (b) a check to Kendall Sports Bar in the amount of $89,000; (c) 4 checks payable to Albert Peter, an individual who had a business relationship with Rothstein, totaling $89,723; (c) 4 checks to Banyon LLC totaling $797,000; (d) 2 checks to Rothstein totaling $463,143; and (e) various other checks to himself and Rosenfeldt.

25. The total unpaid amount of Lippman Loans, net of all repayment checks, as of the date hereof is $2,464,907.68. The payments described in the preceding paragraph provided no benefit to RRA and thus, RRA received less than a reasonably equivalent value in exchange for the unpaid Lippman Loans.
Lippman's lawyer Bruce Zimet says it's all ok:
Zimet said Lippman's expenses were paid as part of his agreement with the law firm. As for the bonuses, Zimet said, Lippman earned much more money for the law firm than he received in compensation. Zimet also disputed Stettin's characterizing some figures as loans, but declined to be specific.
I also liked this paragraph:
Indeed, while the scheme was ongoing, RRA rapidly grew from a 7 attorney law firm in 2002 to 70 attorneys and 80 support staff in 2009. Prior to 2005, Rothstein was a virtual unknown in legal, political, and charitable circles. Subsequent to 2005, Rothstein and RRA gained the reputation of being a highly visible law firm making direct and indirect significant political and charitable contributions to both gain influence and give the appearance of a successful law firm.
Key word kidzzz: appearance.

Marc Randazza Continues To Rule Our (Cyber) World.

We've previously discussed Marc Randazza's particular brand of legal brilliance, not to mention his great and utterly profane blog The Legal Satyricon.

Now, fresh off beating Glenn Beck to a bloody pulp, and forcing UM Professor Donald Jones to come to his senses about that meshuga complaint he filed, Marc has arrived to rescue some poor schmuck who tweeted and Facebooked a few times about a negative experience at a South Florida auto dealer.

Turns out this guy's tweets led to a "Dear John, We're About To Sue You" letter from West Palm attorney Douglas Thompson.

Randazza has written a responsive letter, pleading with Doug's client to get a little bit hipper to the way of the tubes:

“I must also point out how utterly foolish it would be for your client to do anything except back away from this dispute,” Randazza wrote. “My client posted his tweets about your client six weeks ago. A few of his friends and family had a chuckle about them, Mr. Alascio became bored with the subject, moved on, and it was all doomed to fade into obscurity. Because your client chose to attempt to bully my client into removing his obscure tweets, thousands of people are now aware of the fact that Route 60 Hyundai has customer service issues, and even more are aware of the fact that Route 60 Hyundai is trying to intimidate a dissatisfied customer from sharing his opinions.

“You may wish to do some research on a concept known as the ‘Streisand effect’ before advising your client further ...”

So true.

See this is where you have to advise your client to do the smart thing, not the one that "feels good," or "pays the bills" or is "legally tenable."

BTW, you can still vote for Marc's blog (and mine too) here.

Voting ends 12/31.

Tuesday, December 29, 2009

Kim Kardashian Sued Over "Cookie Diet" Tweets!


Once again, a headline I thought I'd never write.

On top of that, a press release I thought I'd never read:
Celebrity doctor and author Sanford Siegal, D.O., M.D., creator of the immensely popular Dr. Siegal's COOKIE DIET® weight-loss approach and products, and Dr. Siegal's Direct Nutritionals, LLC, the brand's global distributor, this morning filed a lawsuit against reality TV personality Kim Kardashian over two statements they allege Kardashian made on her Twitter page on October 29, 2009. A total of four counts are contained in the complaint stemming from the following statements:


"Dr. Siegal's Cookie Diet is falsely promoting that I'm on this diet. NOT TRUE! I would never do this unhealthy diet! I do QuickTrim!"


"If this Dr. Siegal is lying about me being on this diet, what else are they lying about?"

"Perhaps I shouldn't presume to question Kim Kardashian's medical opinion. After all, I'm no reality TV star, just a physician who's treated more than a half million overweight patients during a fifty-year medical career," said Dr. Siegal. "But when I saw her derogatory comments about my diet and my character, I knew we had no choice but to take action. Disparaging someone's product while surreptitiously hawking someone else's in the same breath is, to use Kim's words, 'not cool!'"

Dr. Siegal went on to say that his diet is safe and that not one of the hundreds of thousands of patients whom he has treated with Dr. Siegal's COOKIE DIET® experienced any significant problems.

"At 1,000 to 1,200 calories a day, Dr. Siegal's Cookie Diet isn't even a VLCD, a very low calorie diet. It's actually a pretty mainstream approach that's safe, that works, and that many other doctors have used in their own medical practices," added Dr. Siegal.

According to Dr. Siegal's and DSDN's complaint filed in Florida's 11th Judicial Circuit in Miami-Dade County, Florida, Case 09-93439CA15, Dr. Siegal recently received at his Miami medical clinic a letter from Kim Kardashian's attorney claiming that, by placing a link to a certain article stored on a third-party news web site on, which is owned and operated by Dr. Siegal's Direct Nutritionals, LLC, Dr. Siegal and DSDN had created the "false impression" that Kardashian was a paid endorser of Dr. Siegal's COOKIE DIET® products. The letter demanded that the link to the story be removed from

The complaint notes that Kardashian did not disclose in the Twitter message or "tweet" in which she called Dr. Siegal's COOKIE DIET® "unhealthy" that she is a paid endorser of the other product that she mentioned in the same message.

Siegal's attorney responded to the letter by phoning Kardashian's attorney and explaining that the hundreds of news stories to which hyperlinks are displayed on the In the News section of were published and broadcast by legitimate, third-party media outlets and web sites, none of which are affiliated with Dr. Siegal or DSDN.

"Our attorney explained to Kim Kardashian's attorney that the news story to which he referred in his letter wasn't written by us. We had simply put a link to it along with all of our other press clipping links. What's more, the part of the story that mentioned Kim was comparatively brief. The story was substantially about us, not about her," said Matthew Siegal, president and CEO of Dr. Siegal's Direct Nutritionals, LLC.

Ok, by now I was very curious as to which South Florida attorney is handling this suit, so I sent one of my crack legal assistants to the courthouse, but as you know there's a little backlog in processing complaints and the suit is still in circuit court file limbo.

We have calendared to go back and check again in late 2012.

Luckily, thanks to the magic of the intertubes (Radar Online actually), I have managed to find a copy of the complaint and have posted it above.

Greg Anderson, wow!

If you read the blog give us a holler we'd love to do a brief interview.

The suit is pending before Judge Reyes.

(No word yet on who Kim has retained -- hint hint).

Phish Food

It's so nice to see all those eco-friendly, tie-dyed Phish fans hanging around downtown.

Stay green, kids!!

Monday, December 28, 2009

Parsing the RRA Financials


Last week Herb Stettin filed the RRA Schedules of Assets and Liabilities and Statement of Financial Affairs.

I was struck by a few things:

1. This 70-lawyer firm only took in $10 million in 2008 and 2009;

2. Kim Rothstein was employed by RRA at a salary of $45k; and

3. This was some wildly f&(ked up place.

You know how lawyers, particularly litigators, pride themselves on being good judges of character? They just know when a witness is not telling the truth, or being evasive, or when something is "not quite right."

Indeed, their self-worth as a lawyer is sometimes bound up with their inflated view of themselves as being able to "put the pieces together," find a seemingly meaningless clue in a document or a stray aside by a witness, and sleuth their way on a hunch, flop sweat, and good detective work to unraveling the key to winning a case.

Why didn't anyone at RRA do that with Scott Rothstein?

Buju Banton Hires David Oscar Markus!

Jailed Jamaican reggae star Buju Banton has hired none other than our own Mr. Markus:

Tracii McGregor, president of Banton's Gargamel Music Incorporated, is quoted as telling the website

: "We're going to get him the top legal representation there is. We are ready to fight."

Last weekend, BET News said Marcus will lead the team to get Banton off charges of conspiracy to possess with intent to distribute just over five kilograms of cocaine. He was arrested by Drug Enforcement Administration officers on December 10 in Sarasota, Florida, and charged one week later in a Miami court.

The singjay is best known for the 1995 album, Til Shiloh, and songs like Deportee, Untold Stories and Murderer. He is facing a lengthy prison term if convicted.

Among top 40 under 40

The 36-year-old Markus is a graduate of the Harvard Law School and has been involved in several high-profile cases. His success rate has earned him recognition from respected publications such as the National Law Review, which named him among the Top 40 Litigators Under 40 in the United States.

Since 2007, Markus has been cited as one of the US's leading criminal defence lawyers. Among his clients were Gilberto and Miguel Rodriquez-Orejuela, brothers and alleged founders of the infamous Cali Cartel which operated a multibillion-dollar cocaine trade in Colombia during the1970s and 1980s.

In February, he successfully represented Dr Ali Shaygan who was charged with 141 counts of illegally selling pain medication. Shaygan was acquitted of all charges, and he and his lawyers awarded damages of US$600,000.

What nice press!

Let me say this -- if Markus gets Banton off I for one will lead the smoke-filled victory parade right down the main streets of Kingston (ok, Hedonism III but it's the same sentiment).

Sunday, December 27, 2009

Herald New Math

I see from Executive Editor Anders Gyllenhaal that the Herald is now finally available to be downloaded daily to your Kindle:
You can now receive The Miami Herald on Amazon's Kindle, which provides the best stories of the day via its elegant reader. While the fee that Amazon sets is high, $9.99 a month, the service is proving popular in many cities.
Why editorialize in your announcement that the fee of $9.99 a month is "high"?

Does Anders know how much a monthly subscription is to the dead-tree version of the Herald: $13.75 per month.

So a yearly Kindle Herald subscription is $119.88 while a dead-tree yearly subscription is $165.00.

Yep, I see what Anders means.

Well at least the Herald finances are in good hands.

Thursday, December 24, 2009

Merry Christmas Everyone!!

Judge Martinez Reversed On Forum Non Banana Boat Death

Now that's a headline I thought I'd never write.

Actually, it's a very unfortunate case involving a tourist who died riding a Banana Boat in the Bahamas which Judge Martinez dismissed on forum non grounds.

The original opinion is here.

In a thorough opinion by Middle District of Georgia Judge Hugh Lawson, sitting by designation, the Eleventh Circuit identified a number of serious errors in the district court opinion, including a fundamental one relating to the scope of the relevant inquiry:
The district court considered the Southern District of Florida to be the relevant forum for purposes of the forum non conveniens test. In weighing the private interests, the district court looked only at the contacts between the case and the Southern District. Limiting its consideration to just one judicial district was improper. “[T]he relevant forum for purposes of the federal [forum non conveniens] analysis is the United States as a whole.” Aldana, 578 F.3d at 1293; Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1303 (11th Cir. 2002) (“[F]ederal courts, in the forum non conveniens context, do not focus on the connection between the case and a particular state, but rather on the connection of the case to the United States as a whole.”) The district court should have analyzed the forum non conveniens question by looking at all contacts between the case and the whole United States. This would include consideration of the plaintiff’s witnesses who are located in Florida, including the eyewitnesses and the damages witnesses, as well as the documentary evidence located in Florida, including documents and records relating to damages. While the district court stated that it was unaware of any witnesses or evidence located in the Southern District of Florida, whether the witnesses and documents are located in the Southern District as opposed to the Middle District is irrelevant in a federal forum non conveniens analysis. It was error for the district court to consider only the contacts that the case had with the Southern District of Florida.
I reviewed the original opinion and don't see any discussion of whether or not the inquiry should be limited to the SD FL or the United States as a whole (and no reference to the controlling Aldana opinion).

Congrats to Gabrielle D'Alemberte for a huge victory and a nice way to end the year (ok, you too Joel but I hope you don't mind if I don't put up your picture).

Gabby's blog is here btw.

Wednesday, December 23, 2009

Merry Christmas Darling

Oy I had to pop a few Xanax and put on some old Carpenters after reading this story about the various outstanding loans that former RRA lawyers including Marc Nurik owe RRA:

The documents for Rothstein Rosenfeldt Adler, filed late Tuesday in U.S. Bankruptcy Court, said the firm has $1.4 billion in liabilities and only $42.9 million in assets, painting a bleak picture for recovery of claims.

The documents list $34.8 million in apparent payments to various individuals between 2007 and 2009, including many of the firm’s former employees and attorneys. In some cases, those loans were partially paid back, but there’s an outstanding balance of $23.9 million in “advances to non-debtor third parties.”

Among those on the list is Steven Lippman, who is said to have received $8.9 million. Lippman was recently hired by Rice Pugatch Robinson & Schiller in Fort Lauderdale.

According to the schedules, Lippman repaid $6.5 million, leaving an outstanding balance of $2.4 million.

Lippman could not be immediately reached for comment.

The schedules were filed by Herbert Stettin, the court-appointed bankruptcy trustee in the Chapter 11 wind-down of the firm. Stettin told the court that RRA’s books are in disarray, and he does not have complete information on many facets of the firm’s finances.

Other advances shown on the schedules include:

  • Millions of dollars in loans or advances to Bova Group restaurants, none of which has been repaid. According to the schedules, RRA spent $117,000 on a planned restaurant called Bova Smoke, which never happened.
  • Stuart Rosenfeldt, co-owner of RRA, received $916,011 in loans or advances. The schedules show that Rosenfeldt, who recently formed a new law firm, repaid $474,144, leaving a balance of $441,867.
  • Marc Nurik received $190,000 in loans. The former RRA partner who represents Rothstein, was not repaid, according to court documents.
  • The bulk of that money was paid to Nurik in 2009. He told the Business Journal in November that he was not paid a retainer to represent Rothstein and that he had ensured that he was being paid from legitimate sources.
  • Riley [McDermott's, the restaurant purchased by Rothstein to become Bova] received $1.8 million in loans. The schedules show they have not been repaid.
Alright, it's starting to kick in...I'm beginning to feel better.....Karen's voice is just heavenly.....

3d DCA Watch -- Geometric Eggnog And Mistletoe Edition

Does anyone really like the geometric pattern of the bunker?

I for one do, and in fact I have suggested a few simple modifications to further bring out the angles, the boxiness, the sharp lines that just scream out "we who labor here seek only the truth (and hip early 70s Norwegian building design)."

What do you think -- I kinda like it.

Ok, the eggnog has been added to the coffee, the swilling has reached veritable OCD levels, and the mistletoe has been strategically placed above a certain former Chief Judge as we launch into the final, action-packed 3d DCA Watch of this wunnerful, wunnerful year:

Honeywell v. Guilder:

Here we are again with this case, and a new opinion has been substituted which reverses the $24 million mesothelioma verdict.

As before, one issue was the trial court's failure to redact a portion of an old letter:
Here, the Bendix employee’s letter to an asbestos supplier written in the late 1960’s was relevant to proving Honeywell’s knowledge of the dangers of asbestos in its products. However, we find that the portion that stated, “My answer to the problem is: if you have enjoyed a good life while working with asbestos products why not die from it. There’s got to be some cause[,]” was unfairly prejudicial. See § 90.403. Therefore, the trial judge erred in refusing to redact this portion of the letter for use at trial. See MCI Exp., Inc. v. Ford Motor Co., 832 So. 2d 795 (Fla. 3d DCA 2002).
I agree there's no question that portion of the letter is highly prejudicial, but why is it unfairly prejudicial?

It just is, I guess.

Master Plaster v. Scottsdale Insurance:

This one's just here because of the name Master Plaster.
You ask me am I happy
Well as matter of fact
I can say that I'm ecstatic
'Cause we all just made a pact
We've agreed to get together
Joined as children in Jah
When you're moving in the positive
Your destination is the brightest star
You go, Stevie!!

United Real Estate v. Key Biscayne:

Hey, Tricky Dick's old helipad!

(Alas, no mention of Bebe Rebozo.)

Dora Puig v. PADC Marketing:

Interesting opinion on the impact of a bankruptcy proceeding as it affects a nondebtor.

Bottom line is Don Peebles better get ready for his deposition.

Banner Supply v. Harrell:

This is a Chinese Drywall case pending before Judge Freeman. The defendant filed a motion to abate, did not do any of the required statutory inspections, and consequently it looks like this sucker is going to trial.

Congrats to Steve Rosenthal -- you're going to have a busy 2010.

Finally, on behalf of the lawyers of South Florida, I want to wish the Resplendently Robed Ones a very Happy Holidays and a great New Year, and a sincere thanks for your good humor and dedicated public service (not to mention an exceptional year in judicial punditry).

Tuesday, December 22, 2009

Details of the Rothstein Auction

Save your money folks, there are bargains to be had at the Scott Rothstein/RRA auction to be held January 23rd in Tamarac.

Barring a late Marc Nurik photo grab, here are a variety of crappy and tasteless items you Rothstein junkies can bid on.

Wow, what schlock.

Wait a minute Scotty, a signed and framed Jay Fiedler jersey?

Jay Fiedler?

Ok, Jay's a nice Jewish boy and all, but so is Sage Rosenfels, you see what I'm saying?

(Yawn), Some Legal Stuff.

Hi kids, you know those driver's license privacy cases that have been floating around the State for a while?

Well, the 11th Circuit just dinged one and affirmed a Middle District summary judgment as to a state vendor in a well-reasoned opinion by Judge Fay.

It's filled with nice statutory analysis and concludes as follows:
Plaintiff-appellants argue that Imagitas and the State of Florida are doing an “end run” around the DPPA, and indeed, the district court thought such an argument was not unreasonable. That may or may not be true. Congress knew what the states were doing when it passed the DPPA. There is nothing in the federal statute that prevents states from including advertisements in such renewal notices and the same statute specifically allows states to operate though private contractors. If this is a loop hole, Congress can remedy this situation. However, we can just as easily conclude that Congress knew exactly what it was doing and through the DPPA put broad limits on the disclosure of personal information while not preventing state agencies from using this method to pay for the cost of such governmental notices.
In other news, it turns out that the careers of Supreme Court clerks (Judge Jordan excepted) fall into two broad categories -- country and western:

The study also showed polarized hiring at the law firms with significant Supreme Court practices.

Kirkland & Ellis, for instance, hired 22 former clerks from 1990 to 2006, all from the four most conservative chambers, according to the study. (A Kirkland spokesman added that the firm also hired two former clerks to Justice Byron R. White.) The firm is home to Kenneth W. Starr, the former Whitewater prosecutor who was solicitor general in the administration of the first President George Bush.

Wilmer Cutler Pickering Hale & Dorr, on the other hand, hired 35 clerks from the five more liberal justices and only 5 from the other four. Seth P. Waxman, a solicitor general in the Clinton administration, leads the firm’s Supreme Court practice.

So the split is between K&E or Wilmer?

They're both BigFirms that represent powerful business interests, or am I missing something?

Finally, the NYT weighs in on a new pleading standard that absolutely does not interest me in the least:
For decades, a plaintiff filing a lawsuit needed to file only a short, clear statement of his claim and its legal grounds. That standard recognized that much of the evidence needed to prove claims may be in the hands of the defendant and not available before the pretrial discovery process. The Iqbal ruling, which followed a similar 2007 ruling applying to antitrust claims, abandoned that approach. Under the court’s new regimen, judges must assess the “plausibility” of the facts of an allegation before allowing the plaintiff to begin collecting evidence. That gives judges excessive latitude to bury cases based on their subjective views before the evidence emerges and can be fairly weighed.
See, I told you this was boring.

Monday, December 21, 2009

Christmas Dream

Thanks Joe!

I was running late and stuck in court so I asked my old pal Joe Namath to cover a hearing in Palm Beach the other day.

He did pretty good, except his knees kept going out on him -- just like the old days.

(Boy things are slow around here).

SFL Monday -- Welcome Winter!

I love walking around downtown when the temperature drops -- out come the sweaters, the turtlenecks, the boots, the scarves, and I'm just talking about my own personal wardrobe.

Seriously, it's tough being a federal judge:
It's not the lifestyle of a typical federal judge: Five or six vodka cocktails during lunch; gambling with borrowed money; bankruptcy under a phony name, and cash, trips or home repairs from lawyers and a bail bondsman with business before his court.
Five or six vodka cocktails before going back on the bench? That part seems fairly typical.

It's the part about increasing bond amounts on poor schnooks in order to financially benefit the bondsman that strikes me as pretty bad:

Later, New Orleans bail bondsman Louis Marcotte testified that he and Porteous had a long-standing relationship in which Marcotte routinely took Porteous to lavish meals at French Quarter restaurants and offered his employees to work on Porteous' cars and home. In return, Porteous manipulated bond amounts for defendants to give Marcotte the highest fees possible, said Marcotte, who served 18 months in prison on related corruption charges.

Porteous also erased criminal convictions for two of Marcotte's employees.

"I knew he was struggling ... he would have five, six Absolut (vodka) and tonics" at lunch, Marcotte testified. "I asked him for things and he asked me for things."

What else -- if you've ever clerked for a federal judge you know the prisoner suits are a real pain.

Now comes an effort to revise the pleading standard (yes pleading standards, I know) for claims brought under the Prison Litigation Reform Act:

Congress included the physical injury requirement in the Prison Litigation Reform Act, which it passed in 1996 to deter inmates from bringing frivolous lawsuits. What the law has done instead is insulate prisons from a large number of very worthy lawsuits, and allow abusive and cruel mistreatment of inmates to go unpunished.

Legislation introduced by Representative Robert Scott, Democrat of Virginia, would undo the worst parts of that law. Most important, his legislation, the Prison Abuse Remedies Act, would remove the physical injury requirement. Prisons across the country have used this requirement to dismiss suits challenging all kinds of outrageous treatment: strip-searching of female prisoners by male guards; revealing to other inmates that a prisoner was H.I.V.-positive; forcing an inmate to stand naked for 10 hours.

Mr. Scott’s bill would allow prisoners to prevail under the same conditions as plaintiffs in other kinds of civil rights cases. It would also make important changes in the 1996 law’s “exhaustion” requirement, which forces inmates to bring their complaints to the prison’s own grievance system before they can sue. A carefully drawn exhaustion requirement could help resolve problems locally, and avoid unnecessary litigation. But the one in the current law lets prisons put up procedural hurdles that make it difficult or impossible for prisoners to navigate the bureaucracy and get their complaints heard in court.

Juvenile inmates are not a significant source of frivolous lawsuits, but they are at increased risk of abuse in prison, especially sexual abuse. The current House bill would remove all of the 1996 law’s restrictions for suits brought by inmates under the age of 18.

Ho ho ho, egg nog for all and send those cases to the Magistrate Judge, that's what I always say.

Sunday, December 20, 2009

What Happened To Gary's Bonus??

Boy I've heard some bizarre stories coming out of the Rothstein scandal, misconduct and abuses that can make any lawyer's head spin.

But when I read this, I said "now you've gone too far."

Have you no conscience? No sense of common decency? Good lord man, what is wrong with you?

I speak of this:
"I didn't get a single bonus the entire 11 months I was at RRA.''
Ok, in my mind that pretty much explains everything.

Friday, December 18, 2009

SFL Friday -- A Piece of the Action?

Hi kidzzzz, I was briefly detained by an actual court proceeding but I'm back and wrapping it up.

Congrats to entering an era of 100% Rothstein-free JNC appointments:
The Florida Supreme Court screening committee includes Jay Cohen of the Law Office of Jay Cohen in Fort Lauderdale.

The 3rd District Court of Appeal committee is chaired by Edwin Scales III of Edwin A. Scales III P.A. in Key West and includes Miami attorneys Ramon Abadin of Abadin Cook, Dori Foster-Morales of Elser & Foster-Morales, Juliet Roulhac of Julie Roulhac P.A. and Michael Higer of Higer Lichter & Givner of Aventura.

The 4th District Court of Appeal committee is chaired by Cohen and includes Greg Coleman of Burman Critton Luttier & Coleman in West Palm Beach, Eugene Pettis of Haliczer Pettis & Schwamm in Fort Lauderdale, David Prather of Lytal Reiter Clark Fountain & Williams in West Palm Beach and Lisa Small of Small & Small in Palm Beach.
Big firms and their bankruptcy fee requests are getting renewed scrutiny -- damn the trial lawyers!

And Marc Nurik has room in his briefcase for a few photos:
"We want to pick up those photos,'' Nurik said. "I don't know why his personal photos have to be auctioned off, and I'm going to talk to the trustee about that. His personal items should be returned to him.''
I don't know, I don't believe this issue was addressed anywhere in the Dreier sentencing memo.

I'll go Marc one step further -- I'd like to see an entire civilization formed exclusively upon the Dreier sentencing memo, you know like that classic Star Trek episode "A Piece of the Action," where an entire culture was built upon a book about Chicago mobsters of the 1920s.

Ok, maybe that's where Scott's head was at after all.

Oh well, time to watch cartoons and eat cereal all day, stare at the perfect female face, pour another drink, and of course stick to my diet.

I've always been into having my hands manicured but either way put your hands on something worthwhile this holiday season -- you'll feel better for it.

Have a great weekend!

Don't Be That Guy.

COMES NOW The Lawyerist (via Legal Blog Watch) who duly notes that a heretofore unknown bankruptcy judge ("Judge") from Minnesota has issued prophylactic guidelines on proceeding forthwith ("PF") in terms of filings and/or Legal Briefs in Judge's Honorable Court, with all due respect as hereupon outlined by The Undersigned:
  • Guideline No. 6 -- Capitalization: Lawyers apparently love to capitalize words. Pleadings, including proposed orders, are commonly full of words that are capitalized, not quite randomly, but certainly with great abandon. Please limit the use of capitalization to proper names. For example, do not capitalize court, motion, movant, debtor, trustee, order, affidavit, stipulation, mortgage, lease or any of the other numerous words that are commonly capitalized.
  • Guideline No. 7 -- Use of articles: Lawyers apparently disfavor articles, both definite and indefinite. Use the articles “the,” “a,” and “an” as appropriate. Write the way you would speak. So, “the debtor,” not “debtor,” “the trustee,” not “trustee.”
  • Guideline No. 8 -- And/Or: Never use “and/or.”
  • Guideline No. 9 -- Superfluous Words and Phrases: Eliminate superfluous words. They serve no purpose other than to make the document sound more legal, which is exactly the opposite of the goal that I am trying to accomplish. Examples of such words are: “hereby,” “herein,” “in and for,” “subject,” “that certain,” “now,” “that,” “undersigned,” “immediately,” “heretofore entered in this case,” “be, and hereby is” -- the list goes on and on.
  • Guideline No. 12 -- Undersigned: Never use the word “undersigned.”
The entire guidelines are a must-read and are here.

While we're cranking out on stupid things lawyers do, here's another that's been on my mind:

If you are in court or a professional setting and you're wearing ostentatious, distracting cuff links that promote your school or some personal hobby or idiosyncrasy of yours, you're a d@*k.

It's like putting a bumper sticker on your suit. Why not paint your face with your school colors while you're at it?

Ok, so you're living vicariously through the crushing and dominating football victories of your Alma mater, we get it.

But why do we need to know that?

You're in court, or in a office at a deposition, not chugging beers with your frat buddies.

Keep your extra-legal personal interests to yourself, trust me no one gives a crap.

Also, if your kid is savvy enough to "text-message" or "Facebook" Santa, she's probably doing it to humor you and you ought to just let the whole thing go already.

God you sound like a tool.

Wow, how'd we get here so early on a Friday?

Mele Kalikimaka

"We're gonna press on, and we're gonna have the hap, hap, happiest Christmas since Bing Crosby tap-danced with Danny f*&king Kaye."

Thursday, December 17, 2009

For Cheapskates Only

Chile Motion

I have been asked by several readers to "liberate" from PACER the bank's motion to dismiss in the Chile/Pinochet money-laundering case I wrote about below.

So, for those of you too cheap to have your firm or the taxpayers of this great nation swallow the 35 cents necessary to see superior writing and research -- it's called professional development, people -- here you go.

Also, for those of you into embedded graphics and jpegs in pleadings, there's a nice one on page 23 of the brief.

When's The Right Time To Raise Rule 11 in A Pleading?

Chile Response

Anyone remember the RICO suits brought by the Republic of Chile against several banks over Pinochet and alleged money-laundering?

This is the one where Pedro Martinez-Fraga got conflicted out and had to hand it over to Bilzin's William Hill.

Well in a recent response to a motion to dismiss filed by one of the banks, there appears this curious paragraph:
We are dismayed that counsel for PNC would raise the earlier sending of a Rule 11 letter to predecessor counsel. That letter was directed at the initial complaint, a pleading that has long since been withdrawn (although it was withdrawn for reasons wholly unrelated to anything in the letter). No subsequent letters have been received and we would not expect to receive one, given the overwhelming evidence of wrongdoing by the bank. We understand that Rule 11 letters are confidential among counsel, and object to counsel raising it to try to gain some sort of litigation advantage here. Further, despite PNC's aggressive rhetoric, one similarly situated bank involved in the Pinochet enterprise has already settled with the Republic of Chile.1 Moreover, one other bank facing similar claims by the Republic of Chile likewise took an aggressive approach and filed a Rule 11 motion. That motion was filed at 5:30 p.m. on September 3, 2009 and denied by the court 20 minutes later, without the need for a response from the Republic of Chile. We expect that, because counsel for these banks are in close communication, the court's off-hand denial of the Rule 11 motion in the other case has counseled Riggs' counsel from making a similar motion. Nonetheless, we categorically deny making any litigation decisions in this case based on the Rule 11 letter, and ask that the Court disregard the reference in this motion.
Hmm, let's see the reference to the Rule 11 letter in the motion to dismiss:
After receiving our motion to dismiss and our strong Rule 11 letter, CDE dismissed everything except its Florida RICO counts and filed a second amended complaint. Unfortunately for CDE, even this latest amendment still cannot save this case from dismissal.
There's also this:
Despite the Local Rule’s clear command, a motion to dismiss [DE 23] and a Rule 11 letter, all squarely notifying CDE that they would be well-advised to specify some act post-March 11, 2004 -- after three long complaints and a 39-page Civil RICO Case Statement, they still have not specified one. As a result, they are time-barred.
The underlying legal issue is whether or not the injury discovery rule -- long applicable to federal RICO claims -- applies to Florida RICO claims as well.

The bank's reply is due January 4.

Exclusive -- Inside Marc Nurik's Briefcase!

Marc gave Herald reporters Amy Sherman and Jay Weaver a little peek:
Nurik carries the Dreier sentencing memorandum in his briefcase.
Hey, that is so weird -- so do I!

I wonder if the rest of Marc's briefcase is like mine:

1. Autographed copy of "10" (well it was signed by Brian Dennehy, but still);

2. Limited edition Steve Zack bobblehead;

3. Silver flask filled with Mallacan Gin (for medicinal purposes and/or depositions);

4. Star of David hackysack; and

5. Glossy photo of Magistrate Judge Brown.

I mean that's pretty much SOP for any decent federal litigator, right?

Wednesday, December 16, 2009

3d DCA Watch -- Zager And Evans v. Du Pont Edition

I think it was in 1889 that Du Pont first pulled the fungicide Benlate off the market, leading to lots of claims and lots of headlines and lots and lots of South Florida lawsuits.

Well the bunker is still churning out Benlate opinions, and the Resplendently Robed Ones have today handed a solid rebuke to Judge Donner, who gets to do it all over again, and again, and again, and so on.

By this rate I'm pretty sure all Benlate litigation will conclude sometime in 2525, and you know I'm kinda wondering if Man will still be alive. He's taken everything this old Earth can give, and he ain't put back nothing, whoa-whoa...

Oops, sorry.

Here's the key holding:
We first [consider] Du Pont’s consolidation issue raised on cross-appeal. Du Pont argues that the trial court abused its discretion in consolidating the individual claims brought by the twenty-seven plaintiffs against Du Pont. We agree with Du Pont that the trial court erred when it consolidated the individual claims brought by the twenty-seven plaintiffs against Du Pont. Therefore, we reverse and remand for new, separate trials.
The Court also held that evidence of past settlements was improperly introduced, as were testimony by other growers who allegedly had substantially similar claims. Finally, the Court concluded that the new theory of liability presented at trial was not adequately covered by the general pleadings in the complaint.

Now it's been 10,000 years, Man has cried a billion tears, For what, he never knew. Now man's reign is through. But through eternal night, The twinkling of starlight. So very far away, Maybe it's only yesterday.....

Show Me The Money (Please?)

StetTin Motion

Judge Stettin has asked politely, very very politely, to pretty please have access to eight RRA operating accounts that are the subject of Judge Cohn's protective order in the Rothstein criminal case.

Nice tone in the motion btw.

Tuesday, December 15, 2009

Julie Kay Breaks Genuine Rothstein News

Here it is in a nutshell:
Rothstein and Stuart Rosenfeldt worked for the law firm Phillips Eisinger Koss Rosenfeldt & Rothstein in Hollywood before launching their own firm in February 2002. Rosenfeldt worked there for eight years and Rothstein for nearly three.

Gary Phillips, former managing partner of the Hollywood firm, said he and his partners asked Rothstein to leave after learning he had lied to a client about filing a complaint and an emergency motion for injunctive relief. The client called Phillips to discuss the motions.

“I went to look at the file and found there was no file,” Phillips said. “He told the client he had already filed these motions. We were very upset. I pushed to get rid of [Rothstein] after that.”

Phillips wound up taking over the case and filing the motions himself, and asked Rothstein to leave “within a short period,” he said. Phillips said he did not report Rothstein to The Florida Bar because he concluded the issue “was not grievable.”

Rothstein ended up leaving with Rosenfeldt and about seven associates who were part of his plaintiff employment practice. The departures came with a confidential settlement that Phillips did not disclose.
Wonder if that was a harbinger of anything?

Once again, Rothstein's rise in legal circles -- his hobnobbing with judges, politicians, his appointment to the grievance committee, his incredible appointment to the 4th DCA Judicial Nominating Commission -- represents a career trajectory almost entirely devoid of merit.

He moved in these circles not because someone saw his legal writing or argument, or watched him take a deposition or handle a mediation, or that he was a good judge of judiciary candidates or other lawyers.

That is not to say he was not talented in certain ways, or charismatic. Yet his "reputation," along with his money and connections, enabled him to attract lawyers, judges, politicians, celebrities and yes, clients, in a world where actual legal skills and moral character were entirely irrelevant.

Does anyone think Scott was wholly unique in this respect?

Story Idea for Glenn Garvin!

Hi Glenn, I know you're always looking around for story ideas, and you've already done feature stories on a wide range of voices from Glenn Beck to Brit Hume, from Bill O'Reilly to John Stossel.

So let me suggest angry crank and former Law and Order actor Michael Moriarty, who gives an unhinged rant about the "left-wing" tilt of the show here?

Michael, I had totally forgotten you were even on that show, your part having been completely owned by Sam Waterston.

Were you on with Angie Harmon?

Or was it Carey Lowell?

(Sorry, that's my frame of reference for this show).

Either way, no one cares about your opinion and whether or not your now-out-of-print-book verifies that you resigned and were not terminated oh so long ago.

Wait a minute, someone does care.


Monday, December 14, 2009

Annoucing The Law Office of Christina M. Kitterman!

Former RRA lawyer Christina M. Kitterman has struck out on her own.

Good luck, feel free to drop us a line about your new practice.

Digging the logo btw.

Parsing the Morse v. Rothstein Lawsuit

Rothstein Revised Malpractice Complaint

Finally amid all the crazy Rothstein pleadings we have what appears to be a straightforward professional malpractice suit.

There are no blockbuster allegations here, no inflammatory rhetoric, just a simple suit sounding in malpractice, negligent supervision, and breach of fiduciary duty.

The Morses claim that Rothstein and former RRA partners Stuart Rosenfelt, Russ Adler, Howard Kusnick, Steve Osber, and Les Stracher all screwed up in various ways in their handling and/or supervision of four separate Morse matters.

The first one was an interior designer services matter that appears to be unrelated to the forged Judge Marra order.

According to the complaint, Steve Osber had day-to-day responsibility for this file:

Plaintiffs are informed and reasonably believe that counsel representing them in the Jan Jones case have failed to meaningfully communicate with Morse, failed to advise them of scheduled depositions, negotiated a purported settlement on behalf of Plaintiffs without their knowledge and consent, and have consented to sanction orders arising from Plaintiffs’ failure to sign a Settlement Agreement that was never presented to, or agreed as to terms, by Plaintiffs.

The second involved the defense of a Palm Beach County suit by Builders Services. Osber again allegedly had day-to-day responsibility for the file:

After a Default Final Judgment was entered against Morse in December, 2007, Defendant Osber finally filed a Motion to Set Aside the Default Judgment and for Extension of Time on or about January 7, 2008, which motion was denied by the Court on or about January 31, 2008.

16. Osber and Rothstein proceeded to file a Notice of Appeal in an attempt to challenge the denial of their Motion to Set Aside the Judgment, but the appellate court ruled that the appeal seeks review of a “non-final order”, and ultimately the Appeal was dismissed for lack of jurisdiction in June 2008. Ultimately the Morses failed to have their rights and defenses properly litigated in the case as a result of the failure of Plaintiffs’ lawyers to properly file pleadings on their behalf.

The third involved a suit the Morses had brought against Mizner Lake Estates in Palm Beach state court:

In the Mizner Lake case, Rothstein and Osber represented Plaintiffs, and through their failure to communicate with Morse the Defendant had filed several Motions to Compel seeking to enforce the parties’ “interim agreement,” and seeking to have the Court enter an Order to Show Cause why the Morses Should Not be Held in Contempt of Court.

19. The Morses were not notified that they might be held in contempt of Court, or that they were required to sign any documents for which opposing counsel was attempting to hold them in contempt. In fact the Morses signed a Settlement Agreement, which was apparently not turned over to Defendants for reasons unknown to Plaintiffs.

20. Ultimately, in or about December 2008, Defendants Osber and Rothstein stipulated to the entry of an “Agreed Order on Motion to Show Cause re Plaintiffs’ Failure to Execute Settlement Agreement”, and dismissed the case after a hearing on Defendant’s Motion for Settlement.

21. Plaintiffs are informed and reasonably believe that the Mizner Lake case was dismissed with the knowledge and consent of Plaintiffs’ lawyers, including Defendants Osber and Rothstein, even though it does not appear that Plaintiffs’ claims were properly litigated and presented to the Court on behalf of the Morses, or that Plaintiffs actually received anything from their purported settlement.

Finally, the fourth matter involved an allegedly improper HVAC system at the Morses' Maine estate that they hired RRA to sue over:

Rothstein and Osber purported to work with Plaintiffs, and to engage co-counsel in Maine, due to an alleged “conflict” involving the adverse party W.H. Demmons a/k/a Maine A/C.

24. Plaintiffs are informed and reasonably believe that Rothstein and Osber sent co-counsel the content of a back-dated settlement letter; however as of the present time there has been no action filed, no actual settlement, and the Morses still have an overpriced and improper HVAC system in their Maine house.

25. As a result, once again, Plaintiffs are informed and reasonably believe that their lawyers at RRA, including Osber and Rothstein, failed to protect them and failed to reasonably act with due diligence to protect their clients’ rights

26. In each of the foregoing legal matters, Defendant Stracher, due to his relationship with the Morse family, has held himself out to Ed and Carol Morse as a trusted advisor who would supervise the various matters being handled by RRA lawyers on behalf of Morse, to make sure that their interests were protected.

RRA supposedly only has a $10 million dollar policy, so collecting on these claims will be extraordinarily difficult.

Also, where is the Morse suit over the forged Judge Marra order?