Friday, February 26, 2010

SFL Friday -- Why Life Is Worth Living

Hi folks, I am readying my winter windsurfing gear (a koozie for my dry Gin Gibsons, turtleneck wetsuit etc.) and generally getting prepared for the weekend -- I hope you are too.

My first order of business btw is to windsurf, get airborne and crash spectacularly through the oceanfront windows of the Eden Roc where all those prosecutors and ultra-stiff white-collar lawyers are having their concluding cocktail reception.

Once I have their attention, I plan to go all William S. Burroughs and do a dramatic nonlinear "cut up" reading of the entire federal RICO statute -- with amendments -- because seriously that's pretty much what these guys do for fun.

(Don't worry, I have something extra special saved for
Bernie Goldberg(??) when he speaks at the Federalist Society dinner next week.)

In conclusion, give the kiss that keeps on giving, learn how to dress like a Mad Man, and as always, put your hands on something warm and snuggly.

Have a great weekend!

Mike Tein Saves Everglades, One Decaying Road At A Time.

Everglades Road

Mike scored a huge victory Wednesday on behalf of the Miccosukee Tribe and pretty much everyone else:
A Miami federal judge has dismissed and closed a case brought by the Miccosukee Tribe against the National Park Service after the government agreed not to rebuild a decaying Everglades road without an extensive environmental review.

In an order Wednesday, U.S. District Judge Patricia Seitz granted the government’s motion to close the case, handing a victory to the tribe and Miami attorney Michael Tein.

The partner at Lewis Tein sued the government for failing to hold public hearings, notify the tribe or conduct environmental reviews before moving forward with plans to work on the 24-mile Loop Road, which runs through the Everglades and tribal lands off U.S. 41.
Fresh off this win, I have asked Mike to personally oversee the Burmese Python problem, Asian Carp, health care, global warming and doing something about Sarah Palin.

Rome wasn't built in a day.....

Thursday, February 25, 2010

Florida Supreme Court: Justice System Pretty Much Broke!

created at

If you're in a good mood you do not want to read this gloom-and-doom certification report from the Florida Supreme Court on how broke down and busted Florida's justice system is.

To make it easy, I've put together a "word cloud" so you can get a feel for the report without actually having to read the whole dreary thing.


Big Willy Is Official!

Dancer/lawyer/all-around good guy Wilfredo Ferrer gets the nod:

President Barack Obama nominated Miami-Dade native Wifredo Ferrer as the new U.S. attorney for the Southern District of Florida Thursday.

The position, which requires Senate confirmation, is among the most powerful of the 93 U.S. attorney's offices nationwide. The Miami post is also among the most demanding and sprawling -- with 290 prosecutors handling white-collar fraud, public corruption, drug-trafficking and human-smuggling cases from Key West to Fort Pierce.

His résumé was an easy sell: He is a one-time federal prosecutor in Miami and is currently chief of Miami-Dade County's federal litigation section. He's also the former deputy chief of staff to U.S. Attorney General Janet Reno.

The son of Cuban immigrants also was valedictorian at Hialeah-Miami Lakes Senior High, first in his class at the University of Miami, and president of his class at the University of Pennsylvania Law School.

Ok ok, but is he qualified?

Wednesday, February 24, 2010

Who's That Man?

You remember Jackson Memorial, horribly mismanaged, misstating revenues by several hundred million, firing 900 employees -- in other words the perfect hospital for sunny South Florida.....

Well it looks like they'll have slightly more on their plate, as the 11th has reversed Judge Lenard's summary judgment involving their fund-raising arm Jackson Memorial Foundation in a vigorously disputed age-discrimination suit.

The opinion is pretty straightforward, though there was this odd footnote:
We deny Mora’s request that this case be reassigned to a different judge on remand. Reassignment is unnecessary.
Hey, what's up with that?

Not sure, but the proceedings below did get a little heated at times.

Let's see, first you had that motion for sanctions JMF filed against plaintiff's counsel over a non-confidential deposition transcript provided to the South Florida Business Journal which somehow allegedly "tainted the jury pool."

That's right -- the SFBJ (which I like a lot, don't get me wrong, but it's not exactly at flatbread or pesto wrap or even panini-like levels of popularity).

Then you have the plaintiff filing a motion to compel disclosure of an unnamed mystery JMF "client-attorney," possibly venerable GT lawyer and immediate past JMF chair Alan T. Dimond?

BTW, Magistrate Judge Garber firmly and swiftly denied the sanctions motion (and ordered two sealed documents filed in relation thereto to be destroyed), and Judge Lenard denied the mystery man disclosure motion as moot in light of her granting the now-reversed SJ.

(So is it still moot?)

Better hurry and get that judgment, but either way don't forget to play nice, you knuckleheads!

3d DCA Watch -- RIP Judge Fletcher

We'll dispense with the yuks this week and honor the outstanding service of former 3d DCA Judge John Fletcher, who sadly passed away Monday.

On to the opinions......

Seymour v. Panchita:

Two little words on your summons, but they are muy importante -- "registered agent":
A summons properly issued and served is the method by which a court acquires jurisdiction over a defendant. A rather straightforward group of rules and statutes sets out bright-line, well-tested procedures for preparation and service of the summons with the complaint. Despite those clear-cut provisions andprocedures (and because lawyers and process servers are as fallible as any other group), the rules are occasionally disregarded, twisted, or tested.

In this case, the summons and return of service erroneously identified Jorge Ramos personally as the individual being served. The summons and return of service did not state that the corporation (appellee, Panchita Investment, Inc.) was served, or that Ramos was only being served as a registered agent or corporate officer of a corporation. Most defendants receiving initial legal papers are not lawyers, and the persons who are to supervise the preparation and filing of those papers are ordinarily licensed to practice law. A non-lawyer receiving the summons and complaint in the record here might reasonably conclude that he or she was served erroneously. If the intention was to sue Jorge Ramos individually, the complaint fails to state that and Ramos could safely disregard the papers. If the intention was to sue Panchita, the summons fails to state that and Panchita could assume that the plaintiffs failed to specify which “person,” the individual or the corporation, they intended to sue. In this case, Panchita filed no pleading or paper in the case until it moved to vacate the final judgment after default, so no waiver argument can succeed.
Eventys Marketing v. Comcast:

You need to challenge the enforceability of no-class-action-waivers at the outset (at least until the Florida Supreme Court rules on the issue):
In this case, Eventys had accepted the “terms and conditions” in its dealings with Comcast and was aware of the arbitration provisions, including the waiver of class action provision. Eventys did not seek in its initial circuit court filing a determination that the arbitration requirements (whether in their entirety or simply the class action waiver provisions) were unenforceable on grounds of public policy or unconscionability. Applying the “gateway” analysis to the record here, we conclude that the trial court correctly refused on remand from Comcast I (1) to allow Eventys to challenge arbitrability a second time through its motion to amend and (2) to direct the parties to submit the issues regarding the class action waiver provision (and the class action claims themselves) to the arbitrators.
RIP Judge Fletcher.

Where Is a Corporation's "Nerve Center"?

If you were to ask me, I would say exactly where Will Smith stabs V.I.K.I. with his robot arm at the end of I, Robot.

But I guess Justice Breyer has his own views on this:
In an effort to find a single, more uniform interpretation of the statutory phrase, this Court returns to the “nerve center” approach: “[P]rincipal place of business” is best read as referring to the place where a corporation’s officers direct, control, and coordinate the corporation’s activities. In practice it should normally be the place where the corporation maintains its headquarters—provided that the headquarters is the actual center of direction, control, and coordination, i.e., the “nerve center,” and not simply an office where the corporation holds its board meetings.
Seems simple, but I predict application will be trickier in practice -- those corporations are wily beasts.

Tuesday, February 23, 2010

Insert Favorite Nautical Disaster Imagery Here.

Wow, I mean this is like the Good Ship Lollipop after sustaining a direct hit from a Japanese Tsurugi in Leyte Gulf (hey, I wanted to stretch a little):

"It is a sad day when one who held our trust for so many years is shown to have engaged in rampant fraud and betrayed the trust of so many,'' U.S. Attorney Jeffrey Sloman said at a news conference.

"This is a classic case of how greed and corruption can corrupt a person at the top of his game,'' said John Gillies, the FBI's special agent in charge, who called Freeman "the wolf protecting the hen house.''

Wolf protecting the hen house....interesting but Lew could have done better.

All kidding aside, this one's a shocker and it is indeed a sad day for anyone who has worked with Lew and his many fine employees.

UPDATE: Here's the information filed against Lew (including allegations against "Co-Conspirators A and B"):


Vote for Becker Attorney Ryan Pinder.....In The Bahamas!

I'm not sure what to make of this, but apparently Becker & Poliakoff attorney Ryan Pinder has possibly renounced his American citizenship and is running in a disputed election in the Bahamas:
The tax attorney was born to a Bahamian father, former PLP MP for Malcolm Creek Marvin Pinder, and an American mother. In January, Mr Pinder, who is employed by Florida-based law firm Becker and Poliakoff as a Nassau-based consultant, defended his right to hold dual citizenship in the face of criticism that it was inappropriate and unconstitutional for someone seeking public office in the Bahamas. At the time he called his dual-citizenship a "non-issue." During the week prior to the by-election, however, PLP chairman Bradley Roberts said Mr Pinder had renounced his US citizenship prior to nominating as a by-election candidate on January 29. Mr Pinder had stated that his decision was a personal one, adding that he was not pressured by his party to give up his American citizenship.
Boy does that bring back some pleasant memories!

The last time I was in the Bahamas and renounced my American citizenship I got pulled into a three-day bender involving kiln-fired pottery, Monica Potter and...let me try to remember, oh yes -- Justice Potter Stewart.

Say what you want, but that old coot sure knew what he liked (and liked what he saw).

Monday, February 22, 2010

UM Law Student's Tale of Woe

University of Miami School of Law 3L Todd Sussman is about to graduate and isn't all that happy:

I'd always thought about becoming a lawyer, so I started applying to law schools and chose to attend the University of Miami. At first I hesitated to attend a private institution because of their high tuition rates especially in a city like Miami where life can be expensive, but I'm from South Florida and I wanted to be close to home. I wasn't sure how I would pay for it all so I looked into student loans. The financial aid office at UM was very helpful and was able to help me get the money I needed for tuition and living expenses while in school. I knew I would have to pay the money back eventually, but I thought about the earning potential I would have as a lawyer and didn't think I would have any problems paying those loans back. Unfortunately, my plan didn't involve an economic recession.

Now here I stand three months from graduating, $180,000 in debt and no prospects of a job after graduation. I've started reaching out to everyone I know in hopes of finding something to pay the bills after I graduate, but no luck so far.
This is a tough time to be entering the South Florida legal market, though we've been there a few times before.

Todd doesn't write about how he did in school, what he was doing over the summers, and what specific efforts he has made while in school to get a job.

I have to assume he didn't work at a BigLaw firm over the summer, so he's probably not going to be hired by one of them anytime soon.

(Not that they're doing so hot anyways -- H&K is reporting revenue down 10 percent and a 9 percent lawyer reduction with 70 layoffs).

That means hit the pavement, talk to the ham-and-schleppers, expand your options well beyond South Florida, look to teaching, part-time hourly, public service, and other alternatives to traditional post-grad legal entry positions.

Who knows, maybe one of you big-time machers who read this crappy blog will give Todd a hand?

Should the Gov Hire Jury Consultants?

We've all used them, and not just for jury selection but for mock trials etc.

But what about in criminal proceedings, should the prosecutors also retain jury consultants?

David O. says no:

Several jurors blamed the mistrial on juror Angela Woods, the lone black juror who has refused to comment on the deliberations. Though Woods filled out an extensive questionnaire that has not been made public, prosecutors did not seek any follow-up during jury selection to the written answers they gave, as they did for about half of the other potential jurors.


Lawyers and academics disagree on whether a jury consultant would have helped prosecutors in the Riddle case or whether it's even appropriate for prosecutors to use them.

"The prosecutor's job isn't to win -- their job is to do justice," said Miami criminal defense attorney David Oscar Markus. "There's something that doesn't seem right about the government hiring jury consultants. That gets into winning, rather than how do we do justice in this case."

Friday, February 19, 2010

SFL Friday -- Heartfelt Apologies to All!

Well it's been an eventful week filled with mirth and merriment, and it's not even over yet.

I mean, just today Tiger read a statement about his sex life and Paul Penichet filed a lawsuit described as "a shakedown" by the (allegedly) very randy defendant, Casaurina owner Pete Halmos.

Then there's the mistrial just declared in Milt Ferrell's asbestos case.

But I was most fascinated by this story that Constant Complainer linked to about a Miami couple who were enticed by monetary incentives and land grants to move to rural North Dakota, where they discovered that midwestern small-town love:

Hay bales, a gas station and a graveyard greet visitors as they roll into Hazelton off the state highway.

Michael Tristani came from his native Florida wearing gold necklaces and a Rolex and driving a Lexus. He proved as foreign as a flamingo in a place where pickups, farm caps and flannel shirts are de rigueur.

"People thought I was a drug dealer," he said.

And that's probably being generous.

Hey, don't feel so bad -- I believe the last Jew to live in that area was played by Gene Wilder and rode in on a horse.

Well kids I'm off to put on my hermetically-sealed windsurfing gear, so stay warm this weekend and eat lots of red, yellow and green food (but then if you're a Star Trek geek you already know that).

Have a great weekend!

Magistrate Judge Brown Calmly Explains the Meaning of "Gall."

Judge Brown Gall

This order has too many quotable parts so I'm putting up the whole danged thing.

(The motion which prompted the order is here).


The "Stealth War on Judges" And Paul Begala.

So I see the Senate finally confirmed Joseph Greenaway Jr. to the 3d Circuit, unanimously, after being nominated back in June 2009:

Joseph Greenaway Jr. is the latest example of a delayed nominee with no opposition. Nominated in June for the 3rd U.S. Circuit Court of Appeals, he won the unanimous backing of the Senate Judiciary Committee in October. The Senate could have confirmed him immediately, without even a formal vote, but it took until Feb. 9, when Greenaway was confirmed, 84-0.

"He should have been confirmed last year, and he would have but for Republican objection," said Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee, in remarks prepared for the Senate floor.

Seven other nominees for district or appellate judgeships had similar experiences before getting confirmed unanimously. Ten nominees are awaiting votes, and many of them face no opposition.

Republicans say the delays are warranted, given the rigorous vetting involved for lifetime appointments to the federal bench. "We need to do our homework. Do our background. See what the bar association says. See what the FBI says," said Sen. Jeff Sessions, R-Ala., the top Republican on the Judiciary Committee, at a Feb. 11 hearing.

That is just disgraceful.

Regardless of your politics, there is no reason to hold up judicial nominations where the nominee is not controversial, there is no public opposition, and no red flags have been raised.

Speaking of politics, it felt like 1998 all over again last night as Ira Leesfield received the AJC's Judge Learned Hand Award.

Bill Clinton, Bob Graham, Bill Nelson, ok.

But Paul Begala?

Finally, the first federal drywall trial, where Ervin and Victor are co-lead counsel, is set to commence Monday in New Orleans, but without key Chinese defendants:
The proceedings will be conducted without Taishan's participation, so there was no one to contact for comment. On Thursday, Knauf Plasterboard Tianjin Co. Ltd., another drywall manufacturer from China which had intervened in the Taishan proceedings because of its interest in any precedents that could come out of the case, abruptly dropped out, leaving no defense witnesses and no one to cross-examine the plaintiffs' witnesses.
Should make the Daubert hearing a bit easier, don't you think?

Thursday, February 18, 2010

11th Circuit Says No Right to Amend Complaint If You Never Sought Leave

You know how after Judge Middlebrooks grants a motion to dismiss or for sj he just immediately closes the case?

Well, here's an order today from the 11th Circuit in a qui tam case that says this is hunky-dory:
We reject Sanchez’s argument that the district court should have allowed her to amend her complaint before dismissing these claims. “A district court is not required to grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend []or requested leave to amend before the district court.” Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc). Sanchez was represented by counsel but did not move for leave to amend, and we cannot conclude that the district court abused its discretion by failing to grant leave that was never requested. Burger King Corp. v. Weaver, 169 F.3d 1310, 1318 (11th Cir. 1999).
So the respondent should ask in the response brief for leave to replead, as an alternative, if the motion to dismiss is granted?

Or I suppose the lawyer could have moved to reopen the case, seek leave to amend and attach a proposed amended complaint?


Who is that British guy on WLRN who keeps interrupting All Things Considered during afternoon drive-time to prattle on about "30 years of collective experience" and "investor losses"?

Are you guys sure you want Robert Morley as the face of the firm?

(On second thought, don't answer that.)

Wednesday, February 17, 2010

I Want You

3d DCA Watch -- Possible Groundwater Contamination Edition!

Hi kids, did you know there is a 3d DCA Historical Society?

No, it's not designed to pay tribute to certain retired but very active Senior Judges, but it's still a pretty good idea so go sign up here.

Let's jump right in:

Biscayne Park LLC v. Wal-Mart

This is a tale of two very different approaches to a case, and the question is which narrative do you prefer?

In Judge Lagoa's majority opinion, this is Wal-Mart trying to limit potential future money damages by sealing some remediation wells on an El Portal property after purchase negotiations fell through:
In October, 2007, Wal-Mart terminated the purchase agreement. The wells, however, remained on the property. Biscayne subsequently began negotiations with another potential buyer, Interra Development Corporation (“Interra”). As a result of the negotiations, Biscayne agreed to permit Interra to use the wells on the property to conduct its own due diligence. Wal-Mart, however, became concerned about its potential liability resulting from this use of the wells that it had previously installed. As a result, Wal-Mart commenced negotiations with Biscayne regarding an indemnification and release agreement, and proposed that Biscayne pay for Wal-Mart's costs related to the installation of the wells. Biscayne rejected Wal- Mart's proposal, and informed Wal-Mart that it considered the wells permanent fixtures attached to the property that belonged to Biscayne.

In November 2008, Wal-Mart filed a complaint against Biscayne for declaratory and injunctive relief, and a verified motion for temporary injunction. Wal-Mart's verified motion requested an order allowing entry onto the property for the purpose of filling and capping the wells. At the time, Biscayne was using the wells in its effort to remediate the property as required by a local environmental regulatory agency.

On December 15, 2008, the trial court entered an order granting Wal-Mart’s motion for a temporary injunction. The trial court gave Biscayne two options: 1) allow Wal-Mart to “abandon and seal” the wells; or 2) purchase a six-month insurance policy insuring Wal-Mart with respect to the wells in the amount of $20,000,000.
Judge Lagoa thinks Wal-Mart has not established irreparable injury or the unavailability of an adequate remedy at law:
Wal-Mart’s alleged injury was its possible monetary liability resulting from possible future contamination to groundwater through the wells. . . . in this case, the future event is the possible future contamination of the groundwater through the wells. Because the alleged injury is speculative, we conclude that it is insufficient to meet the irreparable injury standard. Additionally, in the event that such an alleged event were to occur, Wal-Mart would have an adequate remedy at law, i.e., a claim for money damages.
So in Judge Lagoa's opinion this case is all about speculative future monetary damages.

In Judge Gersten's dissent, however, it's far more than that:
After backing out of the contract, Wal-Mart notified Biscayne that it planned to abandon and discontinue the use of the monitoring wells, which if left unsealed are a safety or environmental hazard. Sealing the monitoring wells was the final part of due diligence and was required under Florida and local laws. See § 62.770.200(31), (41), Fla. Adm. Code (2006). Therefore, Wal-Mart requested access to the land to seal the abandoned monitoring wells, but Biscayne refused and instead continued to use Wal-Mart’s monitoring wells for groundwater sampling.
As to irreparable injury, Judge Lagoa sees speculative money damages but Judge Gersten doesn't see it that way:
On the first requirement, Wal-Mart demonstrated irreparable injury because third parties’ use of the open wells would exacerbate groundwater contamination of the land, making Wal-Mart liable for past and future contamination.
In other words, Judge Gersten sees the contamination as not speculative -- instead the continued use of the wells "would exacerbate groundwater contamination."

On unavailability of an adequate remedy at law, Judge Lagoa sees money damages flowing from the potential contamination but Judge Gersten sees money as unable to compensate for inevitable environmental damage:
Wal-Mart also demonstrated the unavailability of an adequate remedy at law because money does not compensate for contamination and spoliation of our natural resources. I note that this contamination adversely affects everyone in our community and our future generation’s children and children’s children.
Judge Gersten ends with a flourish:
Finally, and perhaps paramount, the temporary injunction serves the public interest. The injunction serves the public interest because it prevents further contamination through the monitoring wells.

Therefore, the trial court properly and responsibly granted the temporary injunction on legal, apparent environmental concerns. The trial court was well within its discretion in protecting Wal-Mart from liability for the environmental damage. Moreover, the trial court acted responsibly to protect against further damage to our over-indulged, over-taxed, and under-protected environment. In fact, I feel that a reversal in these circumstances is a slap in the face to a hardworking trial judge who was only doing his job . . . well.

Further, the need for the temporary injunction is no longer present. In January 2009, pursuant to the temporary injunction, Wal-Mart entered the property and sealed the monitoring wells. Thus, the need for the temporary injunction is moot because the parties are returned to the status quo ante-contract.

Accordingly, because Wal-Mart satisfied the requirements for the temporary injunction and the issue is now moot, I respectfully dissent. On an end note, I regret the expenditure of paper resources used in the writing of both the majority and dissent, but reiterate that I would affirm the order granting Wal-Mart’s verified motion for temporary injunction.
BTW, the "hardworking trial judge" who got " slapped in the face" for "doing his job...well" is Judge David C. Miller.

So what do you think?

Oh yeah, Judge Schwartz, specially concurring, has his own view:
A preliminary injunction must be based on four indispensable elements. See Wilson v. Sandstrom, 317 So. 2d 732, 736 (Fla. 1975). In my opinion, the one in this case is supported by none of them. Apart from that, it’s fine.
Just another day in the non-groundwater-contaminated bunker, kids.

Vancouver Sun, Pink Sheets, and a Lawyer "Hall of Shame"

If you're like me, when you think Vancouver this year you think crappy weather, dead luger, guys in clown outfits pushing discs around on brooms, and that cute blonde skier, but apparently there's more according to the Vancouver Sun:

"In general, we expect attorneys who provide us with letters to know securities laws, do the work required, and be ethical," Pink Sheets chairman Cromwell Couslon earlier told me.

"We ban them when it becomes apparent they are stupid, lazy or dishonest."

This is truly a dubious distinction. To date, Pink Sheets has relegated 18 lawyers to its Hall of Shame.

Of these, 13 have been cited by the U.S. Securities and Exchange for securities breaches.

Among them are Vancouver lawyer John Briner, Miami Lawyer Joseph Emas, and Seattle lawyer David Otto, all of whom have been extremely active in the Vancouver marketplace.

Hey, at least a South Florida lawyer made the list!

Consider it the bronze, if you will, but I think we can do better.

Tuesday, February 16, 2010

Judge Huck Cites Emily Dickinson And "International Concept of Due Process."


Ok, maybe not a entirely fair headline, but I have to spice things up somehow.

Actually, this is an interesting order in which Judge Huck denies reconsideration of his refusal to enforce $97 million in Nicaraguan judgments against Dole over alleged injuries sustained from the pesticide DBCP sprayed on Nicaraguan banana plantations.

We've previously discussed this case here and here.

Judge Huck's Dickinson reference brought back some pleasant college memories:
But now, Plaintiffs contend that, unbeknownst to the participants in this lawsuit, including, apparently, Plaintiffs themselves, late arriving, independent legal grounds have emerged that compel recognition of Plaintiffs’ judgment. This alone is reason to deny Plaintiffs’ motion. “The past is not a package one can lay away.” EMILY DICKINSON, SELECTED LETTERS 290 (Thomas H. Johnson, ed., Belknap Press of Harvard University Press 1986) (1914). Rules 59 and 60 do not provide litigants with an opportunity to test new legal theories in the absence of an intervening change in controlling law.
Classy and erudite (and properly cited!), but I might have went with this bon mot:
For each ecstatic instant
We must an anguish pay
In keen and quivering ratio
To the ectasty.

For each beloved hour
Sharp pittances of years,
Bitter contested farthings
And coffers heaped with tears.
I don't know, maybe the Judge's reference was more on-point.
Then we have Judge Huck's reference to that dreaded hip Eurobeast, international "law":
In refusing to recognize the judgment, the Court applied the “international concept of due process” outlined by the Seventh Circuit in Society of Lloyd’s v. Ashenden, 233 F.3d 473, 476-77 (7th Cir. 2000). Osorio, 2009 WL 3398931, at *16, 2009 U.S. Dist. LEXIS 99981, at *51.
Woah -- I guess the Judge is unaware of the mild hand-wringing that occasioned Yale Law Professor Harold Koh's nomination to serve as legal advisor to the State Department or Justice Sotomayor's comments on "foreign law" (she actually said Justices Scalia and Thomas had a point).

Old Europe and Emily Dickinson, all in one order -- that must have been one nice Valentine's Day.

Harry Reid to ABA: "Get A New Life."

Methinks Senator Harry needs to get on know....passing something and/or growing a pair:

Sen. Harry Reid, D-Nev., criticized the American Bar Association on Thursday, saying it should "get a new life" in how it rates prospective federal judges, after one of his choices got a mixed review.

In remarks to the Senate Judiciary Committee, Reid said the bar association's ratings board puts too much weight on whether judicial nominees have prior bench experience and overlooks "real world" qualifications.

Reid expanded his criticism to include the Supreme Court, whose makeup, he said, consists of "people who have never seen the outside world."

"I have asked President (Barack) Obama, 'Let's get somebody on the court that has not been a judge.' They need to do more than thinking of themselves as these people who walk around in these robes in these fancy chambers."

Reid was set off by the ABA's rating of Las Vegas attorney Gloria Navarro, who also appeared before the Senate committee as his choice and Obama's nominee to become a U.S. district judge in Nevada.

According to the association's 15-member Standing Committee on the Federal Judiciary, a "substantial majority," consisting of 10 to 13 members, rated Navarro "qualified," while a minority rated her "not qualified."

You certainly do not need to have been a judge in order to become a judge.

Further, the ABA has grown increasingly irrelevant and insular in my view for a number of reasons that go beyond the topic of this post.

Still, regardless of the specifics of Ms. Navarro, bashing judges for being judges ("walking around in robes in fancy chambers") is just stupid and counterproductive.

Plus, we reserve that kind of stuff for Wednesdays.

Monday, February 15, 2010

Valentine's Day Hangover

"The guy is full of crap and he is despicable.''

I mean, if I had a dime.....

In this case, however, that is Miami trial attorney Ariel Furst, discussing not me for a change but Mike Catalano, from this Herald piece:

The Serrano family is represented by civil attorneys Furst and Stabinski. Catalano says that in November, during a meeting at their office, they said the family wanted Delrisco to ``rot in prison'' unless he fingered the El Paso bar in a Homestead strip mall as his watering hole just before the 5 a.m. crash.

``I said to myself, `These guys want me to cheat,' '' Catalano remembered.

But Delrisco maintains he left El Paso at least five hours before the crash, said Catalano, who would not say where Delrisco went after leaving the bar. His high blood alcohol content after the crash suggests he kept drinking elsewhere.

Catalano complained to prosecutors, then agreed to play along while stressing that the story was a fiction. He made several phone calls that were recorded by an investigator. As part of the sting, Catalano also offered to have Delrisco author an affidavit falsely attesting he drank solely at El Paso, a document he said was later drafted by Furst.

But Delrisco never signed the document or knew of its existence -- it was actually signed by a state attorney's investigator and notarized by Catalano. He delivered it to Furst's office, while hiding a digital recorder in his blue suit jacket pocket.

``I made it very clear that I was uncomfortable because it was not true,'' Catalano said. ``At no time, did [Furst] back off.''

This is an outrage.

Michael, a blue suit? In the dead of winter?

Oh well, good thing in complex commercial litigation we never deal with businesses that lie, cheat or steal.

Rump's grammatical take is here.

Friday, February 12, 2010

SFL Friday -- Achtung Baby!

Well it's been an eventful week and a huge Valentine's weekend looms -- I hope you all have a fantastic long one (that didn't come out quite right but you know what I mean).

Real quick before I go, I'm no foreclosure litigation expert but this seems like a basic no-no:

"They found that many cases were being filed by plaintiffs that didn't own the mortgages any more," said Miami lawyer Mark Romance, who chairs the Civil Procedures Rules Committee.

Romance said other cases were being filed against people who no longer owned the homes.

At least they got the service of process right!

(actually, they screwed that up too)

You can see the new foreclosure rules and forms here.

What else -- I got a bit of a Nazi tingle, these new Valentine's rules are very confusing, Howard Stern would definitely not like this woman, and I would argue some addictions are totally ok.

Shower the people you love with love, kids.

Lawyers (Allegedly) Behaving Badly.


I'm still on a high from last night's Bar thingy, so I'm reluctant to wade into these stories, but they are pretty extraordinary.

First, this blockbuster Julie Kay piece (she's the best, right?) involving Fowler White's Lilly Ann Sanchez:
The suit concerns Sanchez’s representation of Rivero, who pleaded guilty in 2008 to misusing $700,000 out of $3 million he was paid by the Miami-Dade Housing Agency to build affordable housing for senior citizens. Rivero admitted diverting public money to build himself a dream house in South Miami and was sentenced to more than a year in prison. He was recently released.

The primary allegation in the civil suit is that Sanchez and her law firm aided Rivero in a scheme to switch copies of a property deed, one that was witnessed and one that was invalid because it was not witnessed. The in-laws claim Rivero promised the deed in exchange for $1 million, but they received the worthless version.

Among the more explosive charges alluded to in the suit are that Sanchez had an affair with Rivero when he was married and he was paying her personal bills, which was “inappropriate to the attorney-client relationship.” Hall represented Rivero’s ex-wife in their divorce.
Roberto says it's all H.R. Pufncrap:
The law firm and Sanchez “acted professionally in full compliance with their ethical and legal obligations. It is unfortunate that a lawyer with a long-standing impeccable reputation must now litigate what has already been admitted by Mr. Aleman under oath in deposition testimony in the other cases: that Fowler White Burnett and Ms. Sanchez were never involved in the preparation of any improper deed or transaction.”
Oh well, that's what they have courts (arbitrators?) for I guess.

Then we have Big Stu, who according to this pleading had a rather unorthodox compensation plan at RRA:

26. The payments made to Rosenfeldt for salary, bonus or other distributions are collectively referred to below as the “Compensation Payments.” The Trustee challenges the reasonableness of these Compensation Payments for each of these years, based upon various factors related to the operation and profitability of law firms and attorney compensation structure. The amounts challenged as being overpayments of compensation for the 4-year period subject to this lawsuit were unreasonable and improper.

27. The fact that significant amounts of alleged bonus or other payments to Rosenfeldt are not related to actual earned compensation ties to the timing of when Rosenfeldt received certain of such payments, and how he thereafter paid out similar amounts of money as political contributions. For example, and demonstrating it was part of a scheme to funnel cash out of RRA to use for political contributions and not to pay legitimate earned income, on May 19, 2008, Rosenfeldt, Russell Adler (“Adler”) and Steven Lippman (“Lippman”) each received an alleged bonus of $140,000 from RRA. On May 28, 2008 Rosenfeldt made a donation of $140,000 to the John McCain presidential campaign. Also on May 28, 2008, Lippman and his wife Marcy, made payments to the same campaign of $65,000 and $60,000 respectively. On June 12, 2008, Adler contributed $80,000 to the McCain campaign and his wife Katie likewise contributed $39,200. Thereafter, and through the balance of 2008 and much of 2009, Rosenfeldt, Adler and Lippman each received periodic alleged compensation payments from RRA and they (and/or their wives) then made a series of political contributions that trace close to receipt of the monies (which was received both before and after the contributions) with similar, if not identical payments then being made to the same candidates or political parties, including the McCain campaign, the Florida Republican Party, the Ohio Republican Party, the Pennsylvania Republican Party, the Missouri Republican Party, the Michigan Republican Party and Governor Charlie Crist. The bonus or other compensation payments that were used to pay for political contributions provided no consideration to RRA and thus, RRA received less than a reasonably equivalent value in exchange for these payments.

28. The second set of payments the Trustee seeks to recover includes reimbursements for personal expenses that improperly benefited both Rosenfeldt and Suzanne Rosenfeldt. During the years 2006 through 2009, on a monthly basis, Rosenfeldt had unfettered personal use of the RRA American Express card. During this time, for his and his wife’s benefit, Rosenfeldt improperly charged to RRA over $1 million in purely personal expenses, including $439,337.45 just from December 3, 2008 through June 18, 2009. Examples of Rosenfeldt’s personal expenses paid by RRA that personally benefitted Rosenfeldt and Suzanne Rosenfeldt include: 72 pieces of jewelry purchased from J.R. Dunn Jewelers, numerous local hotel room charges, furniture for their home, vacations and personal travel, exotic reptiles, home repairs, athletic club charges, men’s and women’s clothing, groceries, charitable contributions, personal meals, general household items and other items (“Personal Expense Payments”). RRA received less than reasonably equivalent value in exchange for these expense reimbursements.

29. The third set of payments the Trustee seeks to recover includes reimbursements for payments made by RRA to Rosenfeldt which were classified in RRA’s financial records as “loans” and are referred to below as the “Rosenfeldt Loans.” These payments were reflected by numerous checks written by RRA to Rosenfeldt from the RRA operating account, often in random dollar amounts. The loan checks were sometimes issued on the same day with a loan check in numbered sequence to another RRA partner, Steven Lippman (“Lippman”). Typically, Rosenfeldt would deposit each check into his personal bank account, then shortly after the deposit by Rosenfeldt of the RRA check, he would write a check out that personal account payable to RRA in an amount less than the check RRA had given him. The Rosenfeldt Loans totaled $8,960,310.75.

30. In some instances, after Rosenfeldt received a check from RRA, and rather than repaying RRA, he wrote the return check to third parties including: (a) at least one check to Kendall Sports Bar on June 19, 2006 in the amount of $61,500, (b) numerous checks to Russell Adler in amounts of $1000 to $5000 referencing “loan.”
Exotic reptiles?


Putting aside questions of knowledge etc, what kind of farcockta law firm operates like this?

There's not enough Xanax in South Florida for me to be able to deal with these kinds of crazy allegations.

Thursday, February 11, 2010

Another Judicial Reception!! (Yawn)

Well I don't know about you, but I'm getting ready for tonight's big Judicial Reception, which means I have prepared the following to do list:

1. Immediately down two large dry Gin Gibsons;

2. Track down and punch Brett Barfield.

3. Find the one judge willing to speak to me (Sam Slom?) and unleash new self-aggrandizing anecdote that reveals my wit, trial skills, wealth, humor, A-type dominance and general good taste.

4. Listen to similar self-aggrandizing anecdotes and think to myself how it's all total bullcrap.

5. Count other people's money.

6. Pretend to remember that guy's name.

7. Kiss Melanie Damian (professionally, of course!).

8. Sneak into photo op of Judge Moreno and Bob Josefsberg.

9. Kiss Melanie Damian (did I already write that?).

Paul Calli Is A (Private) Dick.

I've always wanted to write that headline, and now I can:

This week, Calli and his firm, Carlton Fields, were tapped by the FPL Group to investigate allegations of fraud.

In two letters, anonymous FPL employees have alleged that FPL executives broke the law by forcing employees to provide inaccurate or misleading information to regulators and shareholders.

Legal experts say the allegations could open a Pandora's box of trouble for the Juno Beach-based company.

"These allegations are very serious, and they require diligence and patience by FPL," said Scott Weires, an attorney in the Boca Raton office of Buckingham, Doolittle & Burroughs. "They cut to the core of the structure upon which the rates for the entire state are based. If there's fraud there, imagine the amounts of money potentially at risk."

In a e-mail sent Monday to employees, FPL Group Chairman Lew Hay said the company hired Carlton Fields because of the serious nature of the allegations, and because the anonymous employees have failed to provide specific facts supporting their allegations.

Gerald Richman, a West Palm Beach attorney who formerly served as president of The Florida Bar, called Carlton Fields "an excellent law firm with a long-standing reputation."

But it's not all s*&ts-and-giggles:

But employees are frightened by the inquiry, said Thomas Saporito of Jupiter, a former FPL employee. He lost his claim that he was fired 22 years ago after raising concerns about safety at an FPL plant. Rather than a quest for the truth, Saporito said the fear is that FPL is on a "witch hunt" designed to find, and silence, the still-anonymous whistle-blowers.

Saporito, who said he keeps in touch with FPL workers, said the letters reflect the rising frustration level felt by employees. "What you have," Saporito said, "is a revolution going on inside that company."

Don't worry kids, they hired a quality guy who will do the right thing.

Judge Torres Allows Nonsignatory To Enforce Arbitration Agreement


This is a pretty sweeping opinion from Magistrate Judge Torres on the enforceability of arbitration agreements.

Here he enforces it against a construction worker who never worked for the entity who is listed on the agreement, but instead for another company also owned by the same businessman:
Again, though we view the result in this case to be, in effect, a reformation of a contract based upon a unilateral mistake (which under traditional contract principles would not allow for reformation at law), arbitration agreements are widely and broadly enforced in the Eleventh Circuit. Equitable principles may be applied to enforce such an agreement against a signatory even though a writing technically does not exist with a non-signatory. This is such a case based upon existing Eleventh Circuit precedent. We have no choice but to apply it, leaving to our Court of Appeals to decide if the result in this case requires a change in direction.
What do you all think?

Wednesday, February 10, 2010

I Shall Be Released.

3d DCA Watch -- Evening of Revelry Edition!

Well folks, it's hump day and you know what that means.....

Hermitage v. Oxygen In the Grove:

So you're partying in the Grove, it's closing time, and of course you left your wallet back in the club.

Who hasn't done that before?

But here the poor schmuck knocked on the door one too many times and got the crap beat out of him (allegedly) -- Judge Shepherd understands:
The complaint alleges after an evening of revelry, Rivera left the premises and then returned for his wallet, which he thought he left inside. Because the club had closed for the night, Rivera knocked on the door and was greeted by a bouncer, who said he would look for the wallet. After what seemed to Rivera to be an inordinate time, Rivera again knocked on the door. At that point, Rivera alleges the bouncer reappeared and, without provocation, assaulted and battered him.
Oh well, so you settled against the club but it turns out there might be insurance covering negligent acts?

Too bad too sad:
However, the rule is not intended to spare counsel from his own tactical errors or mistakes. See Fla. High Sch. Activities, Inc. v. Latimer, 750 So. 2d 762, 763 (Fla. 3d DCA 2000) (“This rule is not intended to relieve a party from its own tactical mistakes.” (citing State Farm Mut. Auto. Ins. Co. v. Isom, 681 So. 2d 1170, 1172 (Fla. 5th DCA 1996) (“[R]ule 1.540 does not provide relief for judgmental mistakes nor tactical errors of counsel nor from mistakes of law. This rule merely provides relief from judgments based on mistakes which result from oversight, neglect or accident.”)). That is the nature of the error pled in this case.
On to more revelry.....

Archbishop Colman F. Carroll High School v. Maynoldi:

This case involves a tragic single car alcohol-fueled accident arising from an end-of-year high school party. The question is whether the school has any liability.

Judge Salter grapples with some unusual facts (including a "skit" about the party on the morning announcements and a visit to the party by the school principal) but ultimately says no:
No conscientious juror or judge could (or can now) feel anything but the deepest sympathy for the tragic results of Gabriel’s accident. But our legal system requires more than heartfelt sympathy and demonstrable damages as predicates for the compensation of injured persons. Although this case involves three novel aspects that were not considered in Concepcion—the school’s interception of the “praty” invitations and “skit” in response, the parent and student handbook provisions, and the visit by the principal and employee to the residence where the party was underway—we conclude that these circumstances were insufficient as a matter of law to impose upon the school a duty to supervise, or a duty under the undertaker’s doctrine, regarding Gabriel’s acquisition and consumption of alcohol, attendance at the party, and fatal decision to get behind the wheel.
Ramle Int. v. The Greens Condo:

So you get an entitlement to fees and you wait 11 months to file your fee motion?

What's the big deal? There's all that juicy statutory interest, right?

Judge Salter says it's no big deal, and Rule 1.525 doesn't apply:
In the instant case, as in Amerus, the prevailing party’s entitlement to attorneys’ fees had already been determined, and the trial court merely reserved jurisdiction to determine the amounts. Although the eleven-month delay in this case exceeds the eight-month delay in Amerus, we do not believe that distinction makes a difference in the analysis or outcome.
Ok, I agree that once you have a determination, being surprised and/or prejudiced isn't as much of a factor.

But 11 months? At some point shouldn't these factors reemerge as legitimate issues -- is there no reasonable end point?

Perez v. Deutsche Bank:

John Ruiz won reversal of a foreclosure, with David Stern on the other side.

Was it John's silver-tongued oral argument? His brilliant research and case citation?
Deutsche Bank was precluded from participating at oral argument in this case for failure to timely file an answer brief.
Alrighty then!

And finally we have Judge Schwartz in Lower Keys Medical v. Windisch:

How contrary is the petitioner's position to some controlling case?

The petitioner’s position in this case is directly contrary to Florida Hospital Waterman, Inc. v. Buster, 984 So. 2d 478 (Fla. 2008), and each of the other District Courts of Appeal.
Ooh, that doesn't sound too good.

Anything else?
Even if we were inclined, which we are not, we do not have the authority to rule otherwise. Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973). The petitioner’s suggestion that we might do so is insulting and frivolous.

How to Write A Good Brief (Or Brief Blog Post).

Stay short and get to the point.

Simple, but way harder than it seems.

Have you read this Michael Kinsley piece on why newspaper articles are just too long:

The software industry has a concept known as “legacy code,” meaning old stuff that is left in software programs, even after they are revised and updated, so that they will still work with older operating systems. The equivalent exists in newspaper stories, which are written to accommodate readers who have just emerged from a coma or a coal mine. Who needs to be told that reforming health care (three words) involves “a sweeping overhaul of the nation’s health care system” (nine words)? Who needs to be reminded that Hillary Clinton tried this in her husband’s administration without success? Anybody who doesn’t know these things already is unlikely to care. (Is, in fact, unlikely to be reading the article.)

Then there is “inverted-pyramid style”—an image I have never quite understood—which stands for the principle of putting the most-crucial information at the top of a story and leaving the details for below. Pyramid style is regarded as a bit old-fashioned these days, hence all those florid subordinate clauses at the top of both the Times and the Post versions of the health-care story. The revolt against pyramid style is also why you get those you’ll-never-guess-what-this-is-about, faux-mystery narrative leads about Martha Lewis, a 57-year-old retired nurse, who was sitting in her living room one day last month watching Oprah when the FedEx delivery man rang her doorbell with an innocent-looking envelope … and so on. (The popularity of this device is puzzling, since the headline—“Oprah Arrested in FedEx Anthrax Plot”—generally gives the story away.) But ruthless adherence to classic inverted-pyramid style can also lead to repetition of the story again and again, with one or two more nuggets of information each time.

And then, finally, comes the end, or “tag.” Few writers can resist the lure of closure—some form of summing-up or leave-taking. Often this is a quote that repeats the central point one last time, perhaps combining it with some rueful irony about the limits of human agency.
This is all true of course, but it applies with equal force to legal briefs and even crappy blog posts.

Most web readers -- readers in general? -- have short attention spans, and usually have heard something about your topic before they even get to your blog.

That means they are there for your take, your reaction -- is it funny, ironic, enlightening, dumb as bricks?

Whatever it is you have to get to it immediately or the reader loses interest and clicks on to some other bookmarked page -- usually boobies.

The same is true with writing a good brief -- was it Justice Roberts who remarked that he never read a brief and wished it was longer?

Case in point -- Marc Randazza, who continues to amaze with his niche practice of representing cheerios-eating pajama wearers and churning out dazzling work product that is unmistakably in his voice.

Give this counterclaim of his a read.

The case is pending in Orange County circuit court and involves some guy who shot at his neighbor's dogs and garnered quite a bit of press -- anyways, he wound up suing a Gainesville blogger for defamation.

Marc's preliminary statement is concise and compelling -- it provides both context and history yet frames the entire case perfectly.

You can read the suit filed by Killgore Pearlman against Marc's client here.