Wednesday, March 31, 2010

3d DCA Watch -- Ganguzza Redux



Hi kids, it's Spring cleaning at the bunker and its fortified steel doors have been thrown wide open today, so let's burp, Charlie, burp our way into this week's opinions:

Brickell Place Condos v. Ganguzza:

This is the second opinion recently involving deceased attorney Joseph H. Ganguzza.

The last one wasn't so hot, and neither is this one:
The record reflects that the Associations employed the law firm for twenty years to represent them in (1) litigation and general matters; and (2) collection and foreclosure matters.

When Joseph H. Ganguzza, Esq., the law firm’s sole shareholder, died, the Associations terminated their relationship with the law firm, retained new counsel, and requested that the law firm transfer all of the Associations’ files to its new counsel. Instead, the law firm filed a retaining lien and refused to provide the Associations with a copy of their files unless the Associations paid the law firm for its services on the pending collection and foreclosure cases even though the delinquent unit owners had not brought their accounts current.
Wow.

That's stone cold, and also apparently wrong:
An attorney or law firm may not assert a retaining lien for fees allegedly owed in a contingent fee case unless and until the contingency has occurred. Because the contingency has not occurred, the law firm could not assert a retaining lien for fees it contends it is owed on collection matters that were still pending when it was discharged. If the law firm believes it is owed money for services it rendered in the collection of delinquent unit owner fees, it may file a charging lien and is entitled to the reasonable value of its services on the basis of quantum meruit, limited by the contract flat fee the parties agreed to. See Rosenberg, 409 So. 2d at 1020-21 (adopting “the modified quantum meruit rule which limits recovery to the maximum amount of the contract fee in all premature discharge cases involving both fixed and contingency employment contracts”).

Accordingly, we reverse the order denying the Associations’ emergency motion for injunctive relief seeking discharge of the law firm’s retaining lien. Our ruling is without prejudice to the law firm’s right to file a charging lien to protect its right to recover the reasonable value of its services.
Of course, that'll be the subject of another opinion.

Good day Sir!

Is the New York Times Now Our Local Paper?


Wow what a glorious morning, huh?

Have you noticed that lately the NYT has more comprehensive and thorough coverage of South Florida issues than our local hometown paper?

Just today, I read about Obama's plan to allow oil drilling off the east coast of Florida (the Herald, by contrast, merely notes to the NYT story in a blog entry).

Then you had this incredible story that Gimleteye noted about how Florida restaurants no longer serve local fish (or maybe it depends on how you define "local"):
The postcard Florida experience: sun, fun and plenty of local seafood. It was the latter that brought Gary and Vicki Haller from Kansas to Wahoo’s here last week, with its waterfront views, toucan colors and promise of fresh food “from our docks.”

“We live in cow country,” Mr. Haller said. “Here we eat fish.”

But the fish in his “belly buster” sandwich actually traveled farther than he did. It was Pangasius, a freshwater catfish from Vietnam. The grouper and tuna were also imports, according to Wahoo’s managers. And the “local” label on the menu? It still applied, they insisted, because their distributor was down the road.

Finally you had this in-depth profile of the Wynwood area and its resurgence spurred by investor Tony Goldman:

Now, Mr. Goldman’s effort to work the same magic in Wynwood, a former industrial neighborhood here just north of downtown and a mile and a half west of Biscayne Bay, is starting, slowly, to bear fruit. Since 2004, he has spent some $35 million to buy about two dozen buildings.

On a recent tour, Mr. Goldman pointed out galleries that have sprouted in brightly painted cinderblock buildings once used as warehouses by shoe manufacturers; a former junkyard that now houses a stainless-steel sculpture park; and a new restaurant, Joey’s, which is named for his son and draws a fashionable crowd. Mr. Goldman has always used restaurants, whether the Greene Street Cafe in SoHo or Lucky’s in South Beach, to get people to talk about a neighborhood.

To provide an incentive to restaurateurs, the Goldmans persuaded Miami officials to ease parking-space requirements. Now Joey’s is one of seven recently opened lounges and restaurants in Wynwood. “He’s the perfect neighbor for us,” said Mera Rubell, an owner of the Rubell Family Collection, which operates out of a Wynwood warehouse. “Not only did he buy properties here, but now he’s bringing life and activity to them.”

All true, you might say, but what about Glenn Garvin?

Ok, you got me -- where else can you read anti-Census fear-mongering from our favorite local TV critic so loopy the Herald had to carry a public rebuke from the Arab American representative of the Census Advisory Committee?

(But Glenn covered the war in Nicaragua!)

You know, I started this morning in a good mood.

Tuesday, March 30, 2010

Try Resveratrol Risk Free -- HAHAHAHAHA

resveratrolbullcrap

Oh how I love the "least-sophisticated consumer"!

Although the 11th apparently thinks this mythical animal remains capable of certain basic informed decisionmaking, I'm not so sure.

Two words: Sarah Palin.

Regardless, we recently discussed the 11th Circuit's affirmance of a Rule 12(b)(6) order of dismissal involving contract terms obliquely referenced in the complaint, as opposed to converting the motion to a summary judgment as a more prudent approach and one more consistent with the policy dictates of Rule 56.

Well, I don't want to say a little birdie in Judge Cohn's chambers chirped about our musings, but let's just say a little birdie in Judge Cohn's chambers decided to do exactly as we suggested:
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as follows:

1. Defendant’s Motion to Dismiss [DE 12] is DENIED as to the issues of choice of law and pleading fraud with particularity, but a ruling is DEFERRED on the issue of whether the Complaint states a cause of action and unreasonable reliance, because the Motion to Dismiss is hereby converted into a motion for summary judgment pursuant to Rule 12(d) on that issue;

2. Between now and May 13, 2010, Plaintiff may engage in discovery solely on the issues raised in the Declaration of Brian Weiss [DE 12-1], particularly the issue of which Terms and Conditions were part of the free trial offer;

3. Written discovery shall be served by April 9, 2010, with responses expedited slightly to May 4, 2010;

4. Plaintiff shall file a response to Defendant’s converted Motion [DE 12] by May 14, 2010;

5. The Joint Motion to Amend Scheduling Order and Continue Trial Date [DE 18] is hereby GRANTED. Class certification issues are deferred until after a ruling on
the converted Motion for Summary Judgment, at which time the Court will reset the schedule if necessary.
That wasn't so hard, was it?

(Now watch, the defendant takes it up and the 11th reverses.)

Wasn't my idea Judge!

Steve Lippman Depo Closed to Public



I think we all know the trend in federal courts generally, and certainly in the SD FL under Judge Moreno, has been to limit circumstances in which documents and testimony are submitted under seal.

This has something to do with the public's "right to know," or some such musty old doctrine probably invented by Lucy Lawless and a bunch of randy guys in togas -- Ad praesens ova cras pullis sunt meliora?

(I should have paid more attention in law school.)

And you know how you always start a deposition by informing the witness that this is a public proceeding, akin to being in a courtroom, and that your testimony under oath here is just as significant whether taken in a lawyer's office or in front of a jury?

Notwithstanding all that, Judge Ray has barred the public from attending the deposition of Steve Lippman in the RRA bankruptcy case.

See if you think this argument passes the "red face" test I do actually recall from law school:
In arguing to close the deposition, Lippman’s attorney, Patrick Scott, said of the case: “This is a case where there’s a very low public interest.”
DING DING DING DING DING!!!

Patrick, you must not have access to my blog stats.

In fact, our number one search term is "Scott Rothstein" (of course, that is closely followed by "Kim Rothstein is a hottie" -- what can I say, gotta love our readers).

Monday, March 29, 2010

The OTHER Motion for Reconsideration of Judge Seitz' Sanctions Order



A few of you have asked me to post the other motion for reconsideration filed on behalf of the lawyers recently sanctioned by Judge Seitz.

Pshaw I say.

I'd rather post the above video of Stevie Ray and Albert King going to town on "Stormy Monday."

Alright alright, all you chronics and cheapos who can't spare the 34 cents to download it directly from Pacer, here is the Scribd link to the aforesaid motion.

I like the tender and circumspect introduction:
Both Counsel and undersigned counsel hold this Court in the highest regard. It is precisely because of the respect Counsel and undersigned counsel have for this Honorable Court that they have chosen to file the instant motion. In light of this Court’s reputation for fairness, and strong desire to “get it right,” Counsel believe this Court will want to reconsider its Order – because neither of the two reasons for which it sanctioned Counsel are supported by the facts set forth in the record.
The Court's sanctions order focused on the "blithe" and "cavalier" way in which plaintiff's counsel -- "almost in passing" belatedly make reference to the disputed releases.

The motion for reconsideration says this is not so:
Weeks earlier, Counsel had addressed the releases in Plaintiffs’ Proposed Supplemental Complaint filed on July 10, 2009 [DE-188]. See Proposed Supplemental Complaint, ¶ 104. In fact, Count X sought reformation of the “various settlement papers” because the Plaintiffs were “mislead into signing a release.” Proposed Supplemental Complaint, ¶ 120. Moreover, the Proposed Supplemental Complaint alleged “[t]he scope of the releases were limited to the
‘Accident’ which, on the face of the documents, do not release criminal conduct.” Id., ¶
118.3
Plaintiff's counsel also take issue with their purported failure to cite relevant controlling 11th Circuit authority on Rule 60(b)(6):
The Court cited two cases in the order denying the Omnibus Motion: Rease v. AT&T Corp., 2009 WL 4897738 (11th Cir. 2009) and U.S. v. Real Property & Residence Located at Route 1, Box 111, Firetower Rd., 920 F.2d 788 (11th Cir. 1991). Counsel could not have cited Rease in the Omnibus Motion because the opinion was issued on December 21, 2009, after the Omnibus Motion and the Motion for Sanctions were fully briefed.
As to the latter Real Property case:
Thus, despite not citing Real Property (Firetower Rd.), Counsel correctly set forth the existing law in the Eleventh Circuit on Rule 60(b)(6), and expressly acknowledged the very issue upon which this Court denied the Omnibus Motion: “Normally ‘newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial,’ for which relief may be granted under Rule 60(b)(2), is not ‘any other reason’ justifying relief under clause (6) of the Rule.” Omnibus Motion at 9.
According to the docket, Judge Seitz held a hearing on the reconsideration motions on March 25.

Who's Pranking Our Federal Judges?


Did you all see this story about one of our federal judges getting ripped off by some scheming convicts:
Inmates at five Miami-Dade jails have free access to banks of phones, 600 in all, located in common areas. They can only make collect or prepaid phone calls of up to 30 minutes. To make them, an inmate must open an account with GTL and use their thumbprint to activate the phone.

Despite those safeguards, Corrections authorities say they are unable to prosecute violators for fraud. Investigators would have to prove the inmate arranged the scheme and actually made the calls -- a nearly impossible burden when an inmate could claim he simply allowed another cellmate to use his account, Ryan said.

As for the culprits outside the jails, tracking down the girlfriends or friends of the inmates is not easy because many use prepaid cellphones with numbers that disappear after a few weeks.

The Miami U.S. district judge, who asked not to be named because of security concerns, noticed a $120 charge to her fax line in January. She spent hours haggling with the phone company and the charges were eventually removed.

Investigators say the calls to the judge were made through the jail phone accounts of inmates Donte Jefferson, 19, an armed robber, and Lenare Palmer, 26, an accused killer. Both men's phone rights were suspended for 30 days. They were not charged criminally.

Jefferson is awaiting sentencing on April 16 for violating probation. Palmer, accused of gunning down a DJ at Liberty City's Caleb Center in July 2007, is awaiting trial on a murder charge.

There's something wrong with this story.

Ok, perhaps you cannot prosecute criminally the inmates, but how about losing their phone privileges if the conduct continues?

Also, I find it hard to believe -- frankly I think it's bullcrap -- that Global Tel*Link is completely helpless and unable to control or monitor in any way phony call forwarding done by inmates on these highly secure lines?

Come on.

If that is the case, maybe another provider can?

Friday, March 26, 2010

SFL Friday -- The Waiting (Is the Hardest Part)



I don't know about you, but I'm starting to clear my head and think about the weekend.

In that spirit I took a look at this Fox story on role-playing, and had to laugh at some of the set-up lines:
"Come, my lady, I know I am but a lowly peasant but, just this once, allow me to cover you with my kisses."
Where's the role-play in that?

In fact, that's pretty much verbatim how I begin my oral arguments nowadays.

Meanwhile, there's more delay in the federal judicial nomination process, with 9th Circuit nominee Goodwin Liu caught in the middle of the health care fight and two Fourth Circuit nominees stuck as well:

Two North Carolina judges are waiting on the Senate to confirm their appointments to the 4th Circuit Court of Appeals nearly two months after getting the nod from the chamber’s Judiciary Committee.

Albert Diaz is a state Superior Court judge; Jim Wynn sits on the state appellate court. Neither ran into much resistance during their confirmation hearings.

“As far as I know, there are not specific objections to them,” U.S. Sen. Kay Hagan said in a conference call with reporters last week.

Makes sense to me!

Finally, it's long overdue we hear about some intended acceleration, you can blame it on the nannies, and see, this is what I keep telling you.

Have a great weekend everyone!

Read This Post and Bill 1.4 Hours To "Professional Development."


Well it's been an interesting week, and it suddenly got more interesting with this fascinating 11th Circuit opinion on fiduciary duty, motions to dismiss, and when consideration of an agreement referenced in a complaint converts a motion to dismiss into a motion for summary judgment.

The 11th affirmed an order of dismissal by Judge Ryskamp in a securities fraud case where the Judge relied on a brokerage agreement to find on a motion to dismiss that the brokerage could not, under any set of facts, owe any fiduciary duties to the plaintiff.

Here is the core holding from Judge Ryskamp's order:
Finally, the Complaint fails to allege that Banc of America breached a fiduciary duty owed to SFM. Here, the parties’ Prime Brokerage Agreement states unequivocally that Banc of America was not “acting as a fiduciary,” and was not “advising [SFM], performing any analysis, or... offer[ing] any opinion, judgment or other type of information pertaining to the nature, value, potential or suitability of any particular invest[ment].” (Anello Decl., ¶ 11(b)). Banc of America thus owed SFM no fiduciary duties and cannot be sued for alleged failure to disclose. Although SFM alleges that Dr. Melgen believed Kim to be Banc of America’s agent, the language of the brokerage agreement clearly demonstrates that Banc of America owed SFM no fiduciary duty.
On appeal the 11th affirmed, basically saying if you reference a document in your complaint you better be ready to deal with it at the motion to dismiss stage.

In addressing the general exception that permits consideration of extrinsic materials at the 12(b)(6) stage if they are central to the complaint and their authenticity not challenged, the 11th held:
Although the PB Agreement was not attached to the complaint, the complaint noted that the brokerage account was opened by “documents provided to John Kim and Won Lee by Banc of America Securities.” (Compl. ¶ 18). These documents were repeatedly described as “account opening documents.” (Id.) SFM does not deny that the PB Agreement is one of the account opening documents mentioned in the complaint. The Defendant argues that the agreement was the account opening document that established Banc of America Securities as a prime broker for SFM and absolved Banc of America Securities from any fiduciary duty as to the account. According to SFM, another document, the IA Agreement, established Banc of America Securities as its executing broker. Under SFM’s theory, Banc of America Securities’s role as an executing broker imposes upon it a fiduciary duty. However, there is no doubt that the PB Agreement determined the terms of the relationship between SFM and Banc of America Securities. The agreement set forth the “terms and conditions” on which Banc of America Securities will “open and maintain accounts for and otherwise transact business with the customer.... ” (Appellee’s Br., Ex. A at 1). Further, to the extent that the terms of the PB Agreement conflicted with another agreement, it stated that it controlled over any other agreements between Banc of America Securities and its customer. (Appellee’s Br., Ex. A ¶ 20). We have previously held that such relationship-forming contracts are central to a plaintiff’s claim. Maxcess, 433 F.3d at 1340 n.3. The district court did not err in considering the PB Agreement in ruling on the motion to dismiss.
I find this ruling very interesting, because it is at the outer edge of this doctrine in my opinion.

As a jurisprudential matter, and in light of the important policy reasons behind Rule 56, would it have been better for the district judge to convert the motion to an SJ anyways, in order to allow the parties to fully address the impact and interaction of the two competing agreements?

Wow, how'd I get so wonky (and on a Friday no less!)

Sanctioned Rule 11 Lawyers File Motion for Reconsideration.

Rule Reconsideration

It appears there's been an update in the case where Judge Seitz imposed Rule 11 sanctions -- the lawyers have filed a motion for reconsideration.

They basically argue that Judge Seitz made a mistake:
Plaintiffs respectfully clarify an important matter which they hope will demonstrate why this Court should reconsider its prior Order: NORWEGIAN CRUISE LINE LIMITED’s (“NCL”) conviction resulted from criminal law enforcement by the U.S. Coast Guard Investigative Service (“CGIS”), not the civil transportation safety investigation of the National Transportation Safety Board (“NTSB”). The Court’s Order (and the Sanctions Order, D.E. 229) appears founded upon the Plaintiffs’ knowledge of the NTSB’s safety investigation well before both the settlement of the Plaintiffs’ claims and NCL’s conviction. However, the NTSB’s investigation did not lead to NCL’s conviction;1 rather, it was the CGIS’ investigation and the enforcement of U.S. criminal law that resulted in NCL’s conviction.
They then argue that this fundamental mistake led to an erroneous ruling:
Plaintiffs submit that the above Clarification as to which investigation led to NCL’s criminal conviction and, further, the timing of the Plaintiffs learning of the CGIS’ investigation shows neither the Plaintiffs nor the Defendants intended for the releases to settle the criminal liability that resulted from the CGIS’ investigation.

13. Given this Clarification, the Court should reevaluate the Plaintiffs’ preliminary evidentiary allegations, which show: i) the Plaintiffs lacked knowledge of the CGIS criminal investigation when they settled their cases and signed the releases, and ii) there was an actionable misrepresentation by NCL in concealing the CGIS criminal investigation and affirmatively calling the explosion an accident. Based on this reevaluation, the Court should then determine whether to allow amendment or supplementation. This should yield the result of allowing amendment or supplementation. The undisclosed criminal activity was not capable of being released, as it was completely outside the parties’ intention to do so.
Meanwhile, the defense attorneys have submitted bills for $52k in fees and $2k in costs ------ just dealing with the Omnibus Motion -- which is being contested as excessive and unjustified.

Oy.

Thursday, March 25, 2010

Announcing the Formation of McCabe Tebow PA!


Here's Ryon McCabe and some other guy.

Adam, no offense but the dude's moved up.

"Cohabitators, Homosexuals or Fornicators"


No I'm not describing my circle of friends at Tuesday's terrific judicial reception honoring Judge Huck, but rather quoting from Virginia Governor Robert F. McDonnell's 1989 master's thesis, which denounced various degenerate activities that most of us would consider pretty standard here in sunny South Florida.

This NYT profile of him and Virginia AG Kenneth T. Cuccinelli II, who along with partner-in-crime Bill McCollum have launched the ND FL lawsuit seeking to have the health care bill declared unconstitutional, is pretty fascinating:

Outspoken and unwavering in his opposition to abortion and homosexuality and in support of property and gun rights, Mr. Cuccinelli is a purist among pragmatists. He stands out as a pugnacious culture warrior in a party more eager to court moderate and fiscal conservatives, and in a state whose governor hopes to portray himself as a consensus builder.

“Ken was a tea partier before there was a Tea Party,” said David B. Albo, a Republican delegate from Fairfax County and close friend of the attorney general. “I tend to take my job responsibility as doing what a majority of my constituents want me to do. Ken sees his job as setting a path and trying to explain to his constituents that this is the way we want to go.”

In recent weeks, though, some of Mr. Cuccinelli’s hard stands have become a headache for Governor McDonnell.

Last week, the governor was left to respond to questions about his attorney general after an audio clip surfaced on the Web in which Mr. Cuccinelli, in a recorded telephone conversation offered a legal strategy for testing the notion, popular among certain conservatives, that Mr. Obama was not born in the United States and therefore lacked eligibility to run for president. It was “possible,” Mr. Cuccinelli said, that a person could “challenge” a federal law as illegitimate because “someone qualified to be president didn’t sign it.”

Oy -- this is who you joined in with?

The DBR has a story today in which various legal scholars declare the suit to be more or less bunk:
Bruce Jacob, a Stetson University law professor who teaches constitutional law, said there is always a chance the conservative-leaning U.S. Supreme Court could side with McCollum. But he said arguments cited by McCollum make it sound “like they are grasping at straws.”

“It bothers me they are wasting the time of the country with this kind of lawsuit,’’ he said.

Barry Richard, a Greenberg Traurig shareholder in Tallahassee who was part of the team that represented George W. Bush in the 2000 presidential election recount, said he read the lawsuit and doesn’t think the high court will go along with it. “I don’t see any basis for the United States Supreme Court to say that Congress can’t do this,’’ he said. “This would severely emasculate the power of Congress.’’
See Bill, that's what you get for not hiring Barry!

BTW, you can sign a letter to Mr. McCollum asking him to dismiss his facacta suit here.

Wednesday, March 24, 2010

3d DCA Watch -- The One In Which I Agree With Judge Shepherd


I think one time before oral argument a few years back I mentioned to Judge Shepherd how delicious the coffee was that morning and he agreed.

So there's that.

I'm scratching my head to find another time.....oh yeah:

K T Holdings v. Akerman:

This is a convoluted legal malpractice case against two Akerman attorneys in which the trial court granted summary judgment to Akerman.

Judge Salter affirms, in an order that to me is uncharacteristic of him.

In fact, I was planning on noting a few of the peculiarities in Judge Salter's approach to the case, but I see Judge Shepherd in a dissent does it for me:
The majority justifies its decision with the comment “[t]here is no justice” in any other result. See Maj. Op. at 11. I would reply that there is no justice in granting appellate summary judgment against a party without notice and due process, which is what this Court is doing today, contrary to the tenets upon which this Court has operated since its formation.
I see Judge Shepherd doesn't practice much in state court anymore.

Anyways, there's more:
The majority finds the final judgment in the Tampa lawsuit, awarding the aircraft to MSF, so “incomprehensible in light of the undisputed facts and the applicable New York law” that it finds it necessary to float—but, tellingly, falls short of taking ownership of—a post-Tampa Aircraft Final Judgment conspiracy theory to, in its own words, “provide some insight into why the trial court may have ruled as it did.”. . . . A careful reading of the majority opinion reveals the majority improperly reached the merits of the KT entities’ case.
The Judge concludes his dissent with an apodictic flourish:
It may have been, upon a trial of this case, a jury would have exonerated the Akerman Attorneys. It also may be (put me in the doubtful category), that the Akerman Attorneys have a meritorious basis for summary judgment on a ground other than the one on which they erroneously prevailed below. If so, however, it is our duty to require the Akerman Attorneys to accomplish it—as we require of all litigants—the old-fashioned way; they should earn it.
Hear that, Akerman Attorneys?

Go "earn it" the "old-fashioned way," the way generations of attorneys in South Florida before you have done -- by schmoozing the judge, getting on the JNC, acting like a big shot and donating heavily to their reelection campaign.

(I'm joking of course.)

I'll Have A Moreno on Rye!


David notes that the cafeteria in the new federal courthouse has opened for business.

This calls to mind the old joke about the Catskills:
“The food is terrible here.”

“Yes, and such small portions..."
I kid I kid.

Seriously, I'd like to see the judges come in and make their favorite sandwiches which would then be named after them, like they do at New York's famous Stage Deli.

Wouldn't it be cool to order a Huck on wheat -- to go, of course.

(BTW, if I were to construct a Moreno sandwich it would be corned beef, swiss, with a nice slice of tongue.)

Tuesday, March 23, 2010

Jews For Judges!


Florida AG Bill McCollum today filed a suit in the ND FL seeking to have the new health care reform bill declared unconstitutional.

It's a hodgepodge of overheated rhetoric for the most part, though buried in there is a somewhat plausible 10th Amendment and Commerce Clause challenge.

As noted barrister Vincent Gambini once asked, "does this argument hold water"?

Writing for the conservative Federalist Society last year, former HHS officials Peter Urbanowicz and Dennis G. Smith said it might:
If Congress were to invoke its Commerce Clause authority to support legislation mandating individual health insurance coverage, such an action would have to contend with recent Supreme Court precedent limiting unfettered use of Commerce Clause authority to police individual behavior that does not constitute interstate commerce: United States v. Lopez,10 invalidating the application of the Gun Free School Zones Act of 1990 to individuals and United States v. Morrison,11 invalidating certain portions of the Violence Against Women Act. In the case of a mandate to purchase health insurance or face a tax or penalty, Congress would have to explain how not doing something – not buying insurance and not seeking health care services – implicated interstate commerce.

While most health care insurers and health care providers may engage in interstate commerce and may be regulated accordingly under the Commerce Clause, it is a different matter to find a basis for imposing Commerce Clause related regulation on an individual who chooses not to undertake a commercial transaction. The decision not to engage in affirmative conduct is arguably distinguishable from cases in which Commerce Clause regulatory authority was recognized over intra-state activity: growing wheat (Wickard v. Filmore)12 or, more recently, growing marijuana (Gonzales v. Raich).13 Reliance on the Commerce Clause to justify the constitutionality of an individual mandate might be susceptible to an “as applied” challenge from individuals who (1) never access the health care system or (2) are able to pay for their health care without using insurance, because the government could not claim an impact on interstate commerce of providers and insurers as a result of uncompensated care.

An individual mandate also presents issues under the First Amendment’s Free Exercise Clause and the Fifth Amendment’s Taking Clause. Given the uncertainty with how an individual mandate would comport with religious beliefs regarding health care choices, the Senate Finance Committee policy outline suggests creating an exception to the health insurance mandate for “religious reasons.” It still leaves open, however, the question of whether the compelled purchase of health insurance constitutes the “taking” of private property under the Fifth Amendment. Given the novel nature of the individual health insurance mandate, a Fifth Amendment challenge can be expected. Requiring a citizen to devote a percent of his or her income for a purpose for which he or she otherwise might not choose based on individual circumstances could be considered an arbitrary and capricious “taking” no matter how many hardship exemptions the federal government might dispense.
On the other hand, Simon Lazarus, writing for the liberal American Constitution Society last year, said the Constitutional issues are seriously overblown:

Opponents' arguments to the contrary express philosophical objections to the concept of mandatory health insurance in principle, without regard to the practical issues the Supreme Court has always used to evaluate laws challenged as outside Congress' interstate commerce authority: the practical impact of the mandate on commerce or the public welfare or the welfare of affected individuals, or the rationality of Congress' judgments about its impact on statutory goals. No doubt, in some quarters, opponents' libertarian views are deeply felt. But they have no basis in law, neither in the grants of authority to Congress in Article I nor in limitations on that authority in the Bill of Rights, nor in the case law interpreting these provisions. Opponents' real grievance is with the law in its current state. Their hope is that a majority of the Supreme Court will seize on a challenge to mandatory health insurance as an occasion to make major changes in current law. But their arguments appear unlikely to gain traction with the current Supreme Court, and, indeed, represent approaches and theories that have been repudiated by justices across the Court's ideological spectrum.

Given that the individual mandate does not kick in until 2014, is there a ripeness problem as well?

Oh well, while we cogitate on all this it is time to fete the judges (again).

Put on your best schmooze-face and I'll see you tonight!

Michael Pizzi Employs "Bad Cop Buddy Movie" Defense!


According to Michael Pizzi, there's no way his client Michael Boudreaux had anything to do with the missing Miami budget files because Boudreaux has horrific, astoundingly bad taste in movies:
According to printouts of receipts supplied by Pizzi, at 7:28 p.m. that Sunday, Boudreaux bought two tickets for $19.50 to see the movie Cop Out at the Cobb Movie Theatres in Miami Lakes -- more than 19 miles from the Riverside Center, making it highly unlikely he could have been at the city building at 7.

At 7:42 p.m., Boudreaux dropped $12.15 on a Cobbster Combo, the receipt shows.

Monday, March 22, 2010

Judge Seitz Imposes Rule 11 Sanctions.

JudgeSeitzRule11

Sorry, I couldn't think of any way to make that headline funny.

Greer and Stearns -- Together Again!



Well folks, IT finally passed.

I'm referring of course to universal healthcare:
Fresh from a two-day weekend visit to Iraq, the Bush administration's top health-care official defended the $950 million that will be spent to help Iraq establish universal health care.
Oops, wrong country.

Are you a lawyer looking for a new practice area?

The NYT says you should be filing lots and lots of copyright termination notices.

Seriously:
The dispute is also emblematic of a much larger conflict between intellectual property lawyers and media companies that, in Mr. Toberoff’s view, have made themselves vulnerable by building franchises atop old creations. So-called branded entertainment — anything based on superheroes, comic strips, TV cartoons or classic toys — may be easier to sell to audiences, but the intellectual property may also ultimately belong in full or in part to others.

“Any young lawyer starting out today could turn what he’s doing into a real profit center,” Paul Goldstein, who teaches intellectual-property law at Stanford’s law school, said of Mr. Toberoff’s specialty.

Mr. Goldstein said cases like the one involving Marvel are only the tip of an iceberg. A new wave of copyright termination actions is expected to affect the film, music and book industries as more works reach the 56-year threshold for ending older copyrights, or a shorter period for those created under a law that took effect in 1978.

You guys better hurry, though, because I've got dibs on my star-studded remake of The Montefuscos.

Finally, in the ongoing drama at Fairchild well-chronicled by Eye on Miami, the Herald reports that Gene Stearns is helping out Bruce Greer:

Stearns said Forrester quit to live closer to her boyfriend. But Forrester, whose last day was March 12, painted a different picture: ``My decision was not based on personal reasons but rather based on recent changes in the structure of the education department.''

Greer insists that he had nothing to do with Lewis' firing, but some say they believe he was behind the move. And while Greer and Stearns say the board voted unanimously to let her go, one member called the vote ``deceiving.''

Friday, March 19, 2010

SFL Friday -- It Always Comes Back to the Nazis.


Well kids, it's too nice outside to be sitting in front of a computer, so I am getting ready to head east and submerge myself in something warm, delicious and inviting.

Sheesh, get your mind out of the gutter, I'm talking about the Atlantic Ocean!

Did you all see Bruce Rogow's comments on the Michelle Spence-Jones prosecution?

That's not my area of expertise, but is the bowtied one ever really wrong?

The you have the State House passing the "slip-and-fall" revision to the Owens case:
"We have been operating under the current law for eight years and what we have found simply is that the cost of defending frivolous slip and fall lawsuits have risen dramatically when compared with the same businesses operating in other states," said Rep. Rep. Gary Aubuchon, a Cape Coral Republican who sponsored the bill, which passed 110-2.
Specifically as a result of the Owens decision? Has any such data been publicly released?

I'm not a PI lawyer but that just sounds like complete bullcrap.

Meanwhile, unbelievably, Viacom has acted like a total d$%k:
For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately "roughed up" the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko's to upload clips from computers that couldn't be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt "very strongly" that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
Man, when Comedy Central plays dirty things are really bad.

Before I go, don't forget to get 'em while you can, that feeling should last around two years, and it really is always about the Nazis.

Have a great weekend everyone!

Slowdown in Judicial Nominating Process?


Ever wonder why Obama is moving so slow on judicial nominations?

Here's a good article on the problem:
An early chance for the Obama administration to reshape the nation's judiciary -- and counter gains made in the federal courts by conservatives -- appears close to slipping away, due to a combination of White House inattention and Republican opposition.

During President Obama's first year, judicial nominations trickled out of the White House at a far slower pace than in President George W. Bush's first year. Bush announced 11 nominees for federal appeals courts in the fourth month of his tenure. Obama didn't nominate his 11th appeals court judge until November, his 10th month in office.

Moreover, Obama nominees are being confirmed at a much slower rate than those of his predecessor, largely because of the gridlocked Senate.

Key slots stand without nominees, including two on the D.C. Circuit Court of Appeals, the body that reviews decisions by federal agencies and a court that is considered second in importance only to the Supreme Court. Federal judicial vacancies nationwide have mushroomed to well over 100, with two dozen more expected before the end of the year. To date, the Obama administration has nominees for just 52 of those slots, and only 17 have been confirmed.
That's a pretty poor track record, at a time when judges are overworked and have important issues on their dockets (ok, some of them).

Why is this happening? It's that darn 60 vote thing again:
Judge confirmations have become like any other piece of legislation on the Hill. Democrats argue that the GOP leadership is requiring time-consuming cloture votes -- motions to cut off debate that need 60 votes to pass and then often require hours of floor time to be spent before a final vote can be taken -- on judges that are unopposed.

Earlier this month, Republicans required a cloture vote on Barbara Keenan, a nominee to the 4th Circuit Court of Appeals in Richmond, Va. After that vote, Keenan was confirmed by a 99-0 tally.

By contrast, more than half of Bush's judicial nominees were confirmed by voice vote or unanimous consent. Democrats consented to their confirmation without requiring time to be spent on a roll-call vote on the Senate floor.
Can Harry Reid "deem and pass" some of these nominations?

Thursday, March 18, 2010

Just Get It Done.

Supreme Court Adopts New Rules on Confidentiality, Electronic Access


Well, it took awhile but the Florida Supreme Court has finally adopted recommendations from 2005 that relate to protecting confidentiality while providing electronic access to court filings:
The first set of amendments is proposed by the Committee on Access to Court Records (Access Committee). Those amendments provide a mechanism to protect confidential information in court records from public view. Enacting a procedure that ensures the confidentiality of a narrow set of court records is a necessary prerequisite to the Court‘s ongoing effort to provide the public with electronic access to court records. While there are enormous benefits to electronic access to court records, the Court has an ongoing concern that we not sacrifice the important goal of protecting those records that are confidential.

The other proposals deal specifically with the issue of sealing and unsealing court records both in criminal and civil cases. The proposals refine the procedures developed in 2007 for sealing and unsealing noncriminal trial court records and specifically include procedures targeted at criminal and appellate court records. In conjunction with these proposals, the Court also considers related amendments to the Rules of Appellate Procedure, which clarify that requests to seal appellate court records are governed by rule 2.420 and provide for review of court orders granting access to judicial branch records and proceedings, in addition to orders denying access.
Meanwhile, the rest of us (perhaps unknowingly) are moving in the opposite direction:

Yet people often dole out all kinds of personal information on the Internet that allows such identifying data to be deduced. Services like Facebook, Twitter and Flickr are oceans of personal minutiae — birthday greetings sent and received, school and work gossip, photos of family vacations, and movies watched.

Computer scientists and policy experts say that such seemingly innocuous bits of self-revelation can increasingly be collected and reassembled by computers to help create a picture of a person’s identity, sometimes down to the Social Security number.

“Technology has rendered the conventional definition of personally identifiable information obsolete,” said Maneesha Mithal, associate director of the Federal Trade Commission’s privacy division. “You can find out who an individual is without it.”

Indeed, in the highly creative and compelling new Syfy series Caprica, a grieving father did just that -- recreated and animated an avatar of his dead teenage daughter by collecting and synthesizing the data detritus of his daughter's online life.

All I know is my online avatar will be eating at Loggia and heading out for a vigorous early afternoon windsurfing session, but don't worry -- you can track my every move on foursquare!

Tallahassee Lassie


This is the time of year when trial lawyers and business interests attempt to bribe -- I mean lobby -- state legislators in order to game the system -- I mean carefully enact legislation affecting important issues of public policy.

So far the business interests are winning:
Though it's still early in the nine-week session, lawmakers and lobbyists are focusing attention on three bills -- the attorney fee caps on state cases, the slip and fall protections and another measure to restore a parent's right to sign a negligence waiver for a child -- that are considered most likely to pass this year.

The momentum shift is putting the trial lawyers on the defensive.

Even a measure the group is backing to allow larger judgments in lawsuits against the state and local governments met ardent opposition in a House committee Tuesday morning.

The bill (HB1107) would have increased the sovereign immunity caps for damages against government entities from $100,000 to $250,000 with total claims from one incident capped at $1 million.

But the House Civil Justice and Courts Policy Committee dissolved into chaos as opponents crafted hand-written amendments to substantially weaken the bill, lowering the caps to $200,000 and $400,000 in the aggregate.

Later in the day, the House considered the litigation caps and slip and fall legislation with only moderate opposition from Democrats.

Wednesday, March 17, 2010

3d DCA Watch -- Glass Half Filled Edition


Hi kids, it's a cold rainy Wednesday but things are always warm and toasty inside the hermetically-sealed, temperature-controlled bunker.

Let's take a peek.....

Fernandez v. Haber & Ganguzza LLP:

What's the policy basis for the litigation privilege again?

Maybe it's time to revisit the doctrine in light of so many lawyers acting badly lately:
Although we do not agree with the actions taken by the Ganguzza law firm, we affirm because as a matter of law, the law firm is entitled to litigation immunity as to Fernandez’s tortious interference claim arising from the filing of the lis pendens in conjunction with pending litigation relating to the subject unit.
Yea! Saved by my law license!

There's more:
Although we believe that Ganguzza and his firm abused the legal process, we do not agree with Fernandez’s position......Although we think that the behavior of the Ganguzza law firm may have been highly unethical, we must affirm.
Got it, got it.

You keep saying things, but all I hear is that sweet sweet word -- "affirmed."

Marc Nurik Is Gooey Gooey Rich and Chewy Inside.



And the hits keep coming:
Nurik came to the deposition with fortifications – an energy drink, a power bar and Fig Newtons – to answer questions from bankruptcy lawyers seeking to reclaim assets for creditors of the defunct Rothstein Rosenfeldt Adler law firm.
Marc Marc Marc!

These are not the weapons of a well-armed lawyer/gladiator.

Fig Newtons???

What are you doing here -- preparing for an important deposition, or packing lunch for a third-grader?

You need life-affirming fortifications for mind and body -- whole grains, nuts, fresh fruit, and of course a small chilled flask of gin.

Also, I've said this before -- what kind of facacta firm was Rothstein running:

Nurik admitted he would regularly ask Rothstein for money to cover personal expenses. He testified he can’t repay the $190,000 in loans he received after he joined the law firm in October 2007. His salary was $350,000 and Rothstein promised a $50,000 loan that year. If he brought business into the firm, the loan would be converted to a bonus, Nurik said.

Nurik said he lived rent free for more than a year in a Castilla Isles home bought by Rothstein for $1.9 million and didn’t pay expenses on the home, but began paying the expenses and $2,500 in monthly rent after Rothstein’s Ponzi scheme imploded in late October.

That month, Nurik said he convinced Rothstein to raise his pay to $500,000 a year and convert the loans into bonuses. He said he has yet to pay income tax on the bonuses and didn’t consider the free rent to be income on which he owed taxes.

Bankruptcy lawyer Chuck Lichtman asserted that the $190,000 was in fact loans, and subject to return to creditors. Nurik said he would be willing to negotiate repayment to creditors to avoid a lawsuit, adding he deserved the bonuses because he brought $1.9 million in business to the firm.
So Nurik brought in to the firm the exact amount that the home he lived in rent-free cost Rothstein to purchase? Weird.

And why borrow so much? What personal expenses did he have that required him to live so far beyond his means?

The $2500 he started paying when his free arrangement become public is well below market value, obviously, plus Nurik apparently claimed homestead on a different house.

Oy.

Golden, flaky tender on the outside.....

Happy St. Pat's Day!



Have you been pinched yet?

Tuesday, March 16, 2010

Spring Break -- Things Sure Are Different.


Boy I can recall an especially riotous Spring Break some years ago involving, in no particular order, Tom Meeks in a Speedo, three cases of Boone's Farm Strawberry Hill, a very young Shelley Long and some amazing Spanish Fly.

Oops, I may have inadvertently fused my memories with that early 80s' flick Losin' It.

Anyway, kids today are doing things a bit differently:

Students from the University of Miami School of Law’s Health & Elder Law Clinic and Florida International University are hosting other Spring Breakers from around the country who want to help Haitians gain Temporary Protected Status. This allows Haitians in the United States prior to the Jan. 12 earthquake to work and remain here legally.

The two Miami-based universities are working with students from Yale, Fordham, the University of Minnesota and City University of New York. UM and FIU students have been working on this project since shortly after the earthquake.

“As soon as word got out that we were working on Haitian TPS, law schools from around the country started calling to volunteer over Spring Break. It was very inspiring,” said Melissa Swain, a supervising attorney at the UM clinic, who has coordinated much of the Spring Break programming.

After training, visiting students will be paired with Creole-speaking interpreters drawn from an FIU-created database.
.....where they will all do multiple belly shots from the balcony of the Elbo Room.

Ok, maybe things aren't all that different.

Judge Moore Certifies Travel Tax Class

Price Line Tax Cert

You ever wonder whether online travel sites properly remit tourist development taxes for booking hotel rooms?

So has Monroe County.

Interesting opinion and pretty much a total defeat for the defendants (represented by Skadden Arps, Jones Day and McDermott's Steve Siff).

Monday, March 15, 2010

11th Circuit to David Dermer -- Next Time, Get Arrested (Just to be Safe)!


I have never heard of this stupid Miami-Dade Ordinance, but David Dermer has and sued to have it declared unconstitutional:
The Ordinance provides:

It shall be unlawful for any person, entity, or elector intentionally to make or cause to be made any false statement concerning the contents or effect of any petition for initiative, referendum, or recall submitted pursuant to Article 7 of the Miami-Dade County Home Rule Charter to any person who is requested to sign any such petition or who makes an inquiry with reference to any such petition and who relies on such statement.
Ok, that is just asinine.

It is so wildly, flagrantly unconstitutional (it includes criminal penalties!) that if the ordinance appeared on a Con Law exam it would be what the students call "a gimmie."

Anyway, in an extensive and well-written order, Judge Gold properly found that the Ordinance was overbroad on its face, vague, and failed a strict strutiny analysis.

Today, however, the 11th Circuit reversed Judge Gold and said Dermer lacks standing:
The sole injury that Dermer alleges is “a chilling effect on [his] willingness to participate in any current referendum or to become involved in any initiating of a referendum on any of the important matters of public interest about which [he] care[s] deeply.” (R.E. Tab 50-2 at 2.) While true that “it is not necessary that [a plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights,” Steffel v. Thompson, 415 U.S. 452, 459 (1974), a plaintiff still must demonstrate “an actual and well-founded fear that the law will be enforced against [him],” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 393 (1988). Dermer, however, failed to provide the court with anything more than generalizations. He refrained from submitting any detail, such as when, where, or how he intends to exercise his right to free speech in the future, that illuminates the specifics of his claimed injury. Without such elaboration, his mere assertion of a chill is insufficient to demonstrate an injury in fact.
I don't have a problem with this, but question -- is it possible Dermer didn't provide (or "refrained" to provide -- whatever that means) this specified level of detail because Judge Gold didn't think it was necessary?

If that's true, rather than order the action dismissed, wouldn't it have been better to send the case back to Judge Gold and see if Dermer can establish these additional details in light of the 11th Circuit's opinion?

First Contested Chinese Drywall Case Goes to Trial

Checking Overdraft

Well that was a glorious weekend, huh?

But it's back to work as the first contested Chinese Drywall case gets underway in New Orleans:

"This will be the first contested trial," said Steve Herman, an attorney representing the Hernandez family.

That leaves the Hernandez family standing in for the 2,100 others around the country involved in the litigation. Big court cases involving lots of parties often use "test trials" or "bellwether trials" to try to work through the issues without trying every individual case.

While the Hernandez case doesn't have any direct legal influence on the other cases, what the court decides about what needs to be done to fix the Hernandez home and how much it will cost to make those repairs could help establish values that will guide settlement discussions in the rest of the cases.

"Their significance is magnified because there are so many similar cases with common elements," Herman said of test cases. "It's something that facilitates settlement, because it gives the parties and the court guidance on what the cases are worth."

The trial is expected to last a week.

In other MDL news, Julie Kay reports on Judge King's denial of several motions to dismiss in the checking overdraft cases:
“It’s a really important decision because these banks fought long and hard to get this knocked out at the dismissal stage,” said Bobby Gilbert, a partner at Alters Boldt Brown Rash Culmo in Miami and co-lead counsel on the case with Bruce Rogow, “The entire order is a major step forward for us ... allowing us to proceed to the discovery stage.”

Miami attorney Barry Davidson of Hunton & Williams, who represents Wachovia, declined comment, as did Aaron Schur of Aaron & Porter in San Francisco, who represents Bank of America.
I posted the order above.

Hey, that's weird -- I just wrote an entirely snark-free post!

Friday, March 12, 2010

SFL Friday -- Rainy Day Windsurfing.


Oh hail, can you believe it's Friday?

As Bob Norman notes, Berger Singerman has put in a fee app for three months of Rothstein work, seeking a fairly sizable chunk of change:
Here's the list:

-- Lead bankruptcy attorney Paul Singerman's firm, Berger Singerman, is asking for a total fee of $1,230,974.50 for those 15 or so weeks of work, plus $28,092.06 in expenses, for a total of more than one and a quarter million dollars.

-- Bankruptcy attorney John Genovese is asking for

$324,805.50 plus $3,659.90 in expenses.

-- Miami accountant Richard A. Pollack is charging $611,640.50 plus $1,846.30 in expenses.

To put those numbers in perspective, consider that, extrapolated over a full year, those three entities would be making more on this one case than the entire 70-member RRA firm made in total revenues last year, about $8 million. A hearing on the fees will be held at 1:30 p.m. April 7 at the federal courthouse.

The app is an interesting read and gives you a feel for the massive and immediate nature of the work involved.

BTW, I don't think there's any question it is well-earned and they will have it approved.

In other news, I just learned a new word, Lehman investors just found a new defendant, and the tax code just got interesting.

Given the rain I may have to practice my windsurfing indoors, but that's alright with me.

Have a great weekend!

Time For A Blogger Ethics Panel!


With all the crazy and sometimes illegal doings in Broward lately, I can't believe the Broward County Bar Association has decided to devote time and effort to investigating a blog:
A Broward County Bar Association committee will meet to determine whether the legal blog JAABlog — the premiere place for courthouse gossip — meets its professional standards.

The professionalism committee plans to hold a closed-door meeting April 1 at the behest of association president Carlos Llorente.

JAABlog, run by criminal defense attorney Bill Gelin, posts quick takes on courthouse flaps, urges lawyers to run for election against incumbents, rails against a planned courthouse and calls for reform in a system that imprisons a disproportionate number of black people.

Since the blog’s launch in 2006, Gelin has become a fixture at high-profile hearings and meetings. He said he has not been told whether he will be allowed to attend the committee meeting.

Llorente said he did not really pay attention to the blog until he learned its comment section was populated by anonymous posts, ostensibly from the site’s heaviest readership: lawyers and judges.

The association’s rules of professional standards state lawyers are not allowed to criticize judges, opposing counsel, parties or witnesses because it could cast the justice system in a bad light.
Does this strike anyone else as slightly bone-headed?

Here's the proferred explanation:
“I have no problem with him being a journalist,” Llorente said. “If he wants to be an expose-type journalist, so be it. But do it as a journalist. Don’t pose as a lawyer with an inside knowledge.”

When asked what is specifically offensive about the blog, Llorente said he would withhold comment until he hears from the professionalism committee.
Oy.

Let me offer a prediction: by convening such a panel the BCBA likely will do more to discredit and denigrate their own organization than anything some goofball could ever post anonymously on a blog.

Thursday, March 11, 2010

Richard Critchlow in Hooterville



Let's see, I'm in a good mood, mostly because I came across this tremendous streaming archived performance of the Dead at the Miami Jai-Alai fronton from back in June 1974.

Geez, remember when they used to have shows there?

(What exactly do they do there now?)

I see Richard Critchlow traveled to a Sarasota circuit courtroom to do battle on behalf of H&K, sued in connection with the alleged Ponzi scheme of Arthur Nadel and Scoop Management.

The David/Goliath/high-powered lawyers in Hooterville perspective of the reporter is quite amusing -- here's a taste:
Holland & Knight hired a team of lawyers from Miami to argue a multi-faceted motion asking for the case to be dismissed. The Miami law firm of Kenny Nachwalter P.A. presented DeFuria with a 3-inch-thick legal binder containing judicial decisions it said supported its position.
Whoa -- three whole inches??

(The reporter didn't mention that two inches consisted entirely of mapquest directions to the Sarasota courthouse).

In other news, Joan reports that pretty much everybody and David Markus will be at this shin dig tonight, where Chief Justice Quince will be speaking.

Isn't it about time the Herald gave her back her regular column?

(oops I meant Joan, not Peggy).

Scarlet begonias, folks.

Kim Rothstein's Size Five Clawback.

Kim Roth Stein Claw Back

I'm starting to come around on Kimmie.

If she didn't know exactly how her husband made his money, and assumed like all the big shmarties in town that Rothstein had legitimate business investments, then maybe she is somewhat of a victim in all this?

Either way Judge Stettin wants the shoes and Botox back:
The lawyers itemized a litany of questionable expenses:

$880,609.77 on an American Express card paid for by her husband's Fort Lauderdale law firm. Among the charges: plastic surgery treatments, hotel and spa charges, groceries, handbags and vacations.

$104,223.99 on campaign contributions to GOP presidential nominee John McCain and the National Republican Senatorial Committee, which were reimbursed by the firm.

$153,198.71 for ``professional fees'' paid to her by Rothstein Rosenfeldt Adler.

Kimmie says she was in the dark:

Kim downplayed her shopping sprees, arguing they weren't ``frivolous.'' When asked about buying $21,180 in shoes -- including nearly $5,000 on Oct. 23, 2009 online -- she explained: ``I have very small feet, I have to special order.''

She even went shopping -- at Nordstrom's for shoes -- over the Halloween weekend when news surfaced that her husband's law firm had failed amid the collapse of Rothstein's massive investment racket. She denied that she was aware of the media frenzy surrounding her husband.

SHOPPING SPREES

In the deposition, Kim Rothstein comes across as a woman who filled her days with shopping sprees for herself, friends and relatives while being in the dark about her husband's finances and enterprise.

She said she was unaware of much of her husband's spending -- including a $475,000 Weston home for Villegas or the $250,000 in cash stashed at their Fort Lauderdale home.

``I didn't even have knowledge of half those vehicles,'' she told the lawyers after they read her the list of Ferraris and other luxury cars.

Though Kim and Scott socialized with investors, she said she never overheard them discuss the investments.

When asked if she ever overheard such business conversations between her husband and George Levin -- who along with his Banyon investors sank around $775 million into Rothstein's scheme -- Kim described much more mundane conversations between the two men.

``Bagels, lox, the difference between lox and salmon, and cream cheese consistency, like the stupidest things you could think of,'' she said.

Ok, let me stop Kim right there -- there's nothing "stupid" about discussing the difference between lox and salmon.

In fact, if you add a little whitefish to the conversation, these are topics I can (and have) discussed for hours.