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"East Wind, Rain."

Sheesh, who ordered all the buckets of rain on our golden streets? Too bad the City couldn't afford umbrellas for our downtown ambassadors; they're all hanging out at Walgreens or Stabucks right now. Well, at least the planters that the City dropped in apparently random spots around downtown will get nice and wet. I wonder what our homeless will be doing in them later? Naah, better not go there.

Meanwhile, it says here that Judge Highsmith is planning on retiring. No, you haters, he wasn't already retired. A decent and fair-minded judge, IMO. Can you say that about all our federal judiciary?

In other judge news, apparently Justice Cantero has a bright sunny future, all the bootlickers quoted in the DBR say here. Anyone else agree? Better get on the record now before your absence is duly noted.

Paul A. Louis, RIP

So folks, that was fun, how was the rest of your week?

On a sad note, I am sure many of us are in mourning over the passing of criminal defense attorney Paul A. Lewis. No doubt Rumpy will have more on this. I found this bit inspiring:

Even when his clients couldn't pay their legal bill, Paul A. Louis stuck by them.

''He wouldn't give up when he got into a case,'' said Miami-Dade Circuit Judge Paul Siegel, who worked with him in private practice for more than 25 years. ``The law firm might not get paid, but he kept on it.''

Think of that, for a moment -- that's what it means to be part of a profession.

RIP, Paul.

“I Cook With Wine, Sometimes I Even Add It To The Food.”

That old W.C. Fields line is ringing in my head, as the wind kicks up and rip tides batter the coast.

I have to be honest, with the emerging conditions, I've moved two client meetings and a few conference calls. Why? I'm heading out to the Key for some windsurfing, and maybe put together a nice dinner with someone special.

I may be back tomorrow, but if things are good it probably won't be 'til Friday.

Pura vida, dear readers, and play nice while I'm gone.

Any interesting news shoot me an email, and thanks for reading.

3d DCA Watch -- A Community College Is Not A University

Hi kids, let's dive straight into 3d DCA world:

Del Pino vs. FIU:

This one is a headscratcher, an appeal over a whistleblower suit in which the main issue is whether or not the underlying suit by the plaintiff, a former FIU employee, was untimely or not.

From what I can gather, the alleged whistleblower filed a complaint with the Florida Commission on Human Relations, which found a prima facia case of retaliation by FIU. The Commission was unable to resolve the complaint, and issued an 180 day right-to-sue notice. The plaintiff then sued within that period.

But then FIU's lawyers got real clever. They argued that she was late because the Commission lacked jurisdiction to hear her complaint, and that she should have filed the complaint within 180 days of the adverse personnel action. GOTCHA! Judge Gordon ruled in FIU's favor on summary judgment.

Not so fast, says Judge Cope. The Commission properly had jurisdiction over the complaint because the plaintiff was an employee of a "state agency" under the remedies section of Florida's Whistle-Blower's Act. FIU is a "state agency" because state universities submit their budget requests to the Board of Regents (then) and the State Board of Education (now), which in turn submit budget requests under chapter 216 on behalf of their component state universities.

Got that? No, me either.

Judge Cope then distinguishes a 4th DCA opinion that held that community colleges are not "state agencies" under the remedies section, and here is his analysis:

After reviewing the applicable statutes, the Fourth District concluded that a community college is a political subdivision of the state, but does not satisfy the definition of “state agency” contained within paragraph (8)(a). Caldwell, 858 So. 2d at 1200-01. Caldwell has no application here, for FIU is not a community college.

Ok, FIU is not a community college, that's true. But do community colleges likewise submit budget requests to the State Board of Education, like FIU does? Isn't that the primary reason FIU was held to be a "state agency"?

Maybe the answer is apparent, but the opinion does not answer this question.

Joe Klock Goes to Bat for Katherine Harris (Again)

I had to laugh at this one.

WSJ's Law Blog is reporting that lovable Justice-name-mangler Joe Klock rushes to the defense of Katherine Harris in the new HBO biopic "Recount":

According to Joseph Klock, the Epstein Becker lawyer who represented Harris, then the Florida Secretary of State, before the U.S. Supreme Court in Bush v Gore, Harris (not a lawyer, sadly) continues to be unfairly portrayed in the media. In an email from Klock’s PR rep, Harris continues to be portrayed as “misplaced socialite and power monger.” Klock, according to the email, believes that if Harris “had been a man, she would never have been subjected to the ridicule she received as the cartoonish ‘air head’ with no credentials, substance or ability to think on her own.”

For me the funniest part was that Klock has a PR rep. It's about time, Joe.

Jorge Perez Praises Stephen Darmody

Welcome back, everyone. Hope you had a great Memorial Day.

It's nice to see, isn't it, legal adversaries who -- like Heckle and Jeckle and the Pink Panther, agree to put aside their differences at the end of the day, and can even praise the acumen of the opposition.

That's what happened in the letters section of today's Miami Herald, where powerful developer Jorge Perez congratulates the quality of his opponents -- presumably including SHB attorney Stephen Darmody -- who succeeded in obtaining an order blocking his bayfront condo project near Vizcaya:

They should be congratulated for their ability to distort the facts to suit their positions.

Well, it's a start....but seriously he's paying Stephen a compliment!

Any thoughts on how the 3d DCA is gonna rule on this?

Richard Epstein to Howard Dean: Welcome to My Nightmare!

I took a look at the latest lawsuit filed yesterday against the DNC to seat the Florida delegation. You can read the complaint here.

The case was assigned to Judge Marra. Oops.

Although local lawyers Richard Epstein and Ben Kuehne did a nice job framing a due process and equal protection argument, I can't see Judge Marra granting them any substantive relief. But hey, it's Florida, stranger things have happened.

What say you, dear readers?

3d DCA Watch -- Preservation Acts 1 & 2

Dear readers let's dive into our weekly feature and visit with the friendly villagers of 3d DCA land:

Fischer Island v. Cohen:

Sheesh, how much litigation comes out of that place? This one is an appeal by Fischer Island of a jury verdict for delay in construction and alternative living arrangement damages flowing from not constructing a home for the plaintiffs within the time set forth by contract. Alan Dimond appears on the opinion for the Defendant.

My first question -- why was this tried? From the opinion it seems there was no dispute that construction was completed well after the contract date. So there should really have been no question the plaintiffs were entitled to delay damages, awarded here in the amount of $700k or so. I guess they were bickering over the amount --these lawyers couldn't resolve that? The jury also awarded $144k in alternative living arrangement damages, in that the plaintiffs had to lease for nine months while their home was being built.

From what I can tell, GT only appealed the alternative living arrangement award. So they basically gave up on the $700k. The primary argument on appeal was that awarding both sets of damages is double recovery.

But here's what Judge Cortinas noted -- Fischer Island never objected to the introduction of the alternative living arrangement evidence, nor did it object to the verdict form that allowed those damages. On top of that, Judge Cortinas wrote:

The jury calculated the delay damages based upon the fair market net rental value of the home and awarded delay damages through December 2006. Fisher Island objected only on grounds that the damages proposed by the Cohens were duplicative. Importantly, Fisher Island never objected to the proper measure of damages and, thus, did not preserve this issue for appeal.

So the only issue preserved was whether or not it was double recovery. As the time frames did not overlap, the 3d held that there was no duplicative recovery. Affirmed.

Meanwhile, Judge Schwartz authored an opinion that I offer without comment here.

More New Math

The intrepid Julie Kay, working her beat:

In another sign of the hard times facing the legal industry, particularly in real-estate heavy South Florida, two local law firms — Holland & Knight and Shutts & Bowen — have laid off non-lawyer staffers.

On a day that could be dubbed Black Friday in South Florida legal circles, Tampa-based Holland & Knight, one of Florida's largest and most venerable firms with 1,150 lawyers, laid off 70 staffers Friday, including legal secretaries, IT and accounting staff. No lawyers were laid off.

The layoffs of about four employees in each of Holland's 17 offices represented 5% of Holland's non-lawyer workforce.

Shutts & Bowen, a 200-lawyer, Miami-based firm, Friday laid off nine people, all entry level file clerks or paralegal clerks. No lawyers or legal secretaries were affected.

The news comes on the heels of a decision announced internally Friday by Fort Lauderdale-based Becker & Poliakoff to temporarily and immediately chop all lawyer salaries by 12%. The firm, which is heavy in condo and real estate representation, said it was forced to take the action since clients are delaying payment in this lean economic environment.

Hmm. Harbinger of things to come?

The Bank of New York Mellon Doesn't Like Michael Hanzman

Get a load of this hilariously-worded press release, obviously written in Russian and poorly translated by somebody for whom English is a second or third language. The release is about expert testimony submitted in a case brought against the Bank of New York in a Russian court by the Russian Federal Customs Service, which is represented by Podhurst lawyer Steven Marks. Here is how the release describes the case:

The meritless claims in the case, which were devised by trial lawyers from Miami, Florida, center on unspecified customs duties that the FCS alleges were owed to Russia on funds transferred out of the country in the 1990s, some of which moved through accounts at The Bank of New York. U.S. courts have summarily dismissed attempts by these trial lawyers to use the same legal theories to bring similar claims for customs duties against U.S. tobacco companies on behalf of Belize, Ecuador and Honduras.

A pretty fair and balanced account, don't you think? From what I can glean from this amateurish press release, the question before the Moscow court is whether US RICO law could be applied and, if so, whether or not the complaint pleads a proper RICO count. In support of the motion to dismiss, the Bank submitted the affidavit of former US Attorney General Richard Thornburgh.

In opposition, Steve submitted the affidavit of none other than SFL fave Michael Hanzman (sheesh, get a web presence already!), which I guess the Bank doesn't think too highly of. Here's their laughable account of Michael's testimony:

Lawyers for the FCS submitted an "expert affidavit" on U.S. RICO law from Michael Hanzman, who, like FCS's lead counsel Steven Marks, is a plaintiffs' lawyer also based in Miami, Florida. Hanzman specializes in initiating class actions in product liability and securities law cases, not RICO law. Further, his "expert affidavit" is full of misstatements of fact and governing law, and fails to address key points made by The Bank of New York Mellon in its motion to dismiss the case for lack of jurisdiction. For example:

-- Hanzman repeats the falsehood, also cited in the FCS's Statement of
Claim, that the Company admitted violating various U.S. criminal
statutes in its Non-Prosecution Agreement with the U.S. Department of
Justice.  As is clear from the face of the Non-Prosecution Agreement
and Mr. Thornburgh's affidavit, the Company was never charged with
violating any of those criminal statutes, and it certainly did not
admit to violating them as Hanzman erroneously claims in his affidavit.
-- Hanzman inexplicably cites from the U.S. Court of Appeals for the Ninth
Circuit, Republic of the Philippines v. Marcos, where the government of
the Philippines brought a RICO claim in a U.S. court.  This case,
instead of supporting the FCS's position, in fact supports the
Company's legal argument that all RICO cases must be brought in U.S.
courts.
-- Hanzman fails to cite a single case where a foreign court has applied
U.S. RICO law, apparently because no such case exists.
-- His affidavit completely fails to address the Company's argument that
RICO requires a court to engage in a criminal law analysis and that
this particular court, the Russian Arbitrazh Court, does not and cannot
apply criminal law.

Yeah, Mike's not qualified to opinion on RICO.

If this is all they have for rebuttal, the Bank is in trouble.

The Secret Lives of Married Men

Ok dedicated readers, this one's for you:

The challenge for me was to explore the dichotomy, of which Spitzer, with his hot wife and public moralizing and complicated secret life as Client 9, was the most flagrant recent example. Then there was his successor, David Paterson, and his affair, or two affairs, or—we lost count. And then Congressman Vito Fossella and his two families. What did it mean about men—and marriage—that this kind of duality was possible?

Even sexologists aren’t clear about issues of sex in a long-term relationship. “There is all this political and social commitment to marriage, yet this is what our news is made up of, these infidelities,” said the first person I called, Jennifer Bass, communications director for the Kinsey Institute at Indiana University. “This is something we don’t understand. There’s research on relationships and research on sex, but putting them together is not so easy.” The result is that our understanding of married sexuality tends to be a rich mix of gossip, statistics, and cliché. “One week it’s ‘everyone’s having sex,’ and the next week it’s ‘the sexless marriage,’ ” Bass said. Having visited many of those clichés myself, I could look back and say that baby-boomers had changed a great number of sexual mores and traditions, from premarital sex to naming the G-spot. In his book on the history of sodomy laws, Dishonorable Passions, the law professor William Eskridge Jr. has shown how non-procreative sex had slowly but surely gained a place in American life, a cultural tide pushed by nonconformists and artists—not to mention enlightened affluent boomers. But monogamy has so far withstood the revolutionary impulse. Consider that Fossella is being pilloried for having an affair, while his sister Victoria Fossella, according to published reports, is openly gay, lives with a partner, and has adopted children that her partner has borne. No, these are not the same thing, and Victoria’s choice doesn’t yet have a place of honor—but it’s taken for granted, as it wouldn’t have been 50 years ago.

An article of faith among the men with whom I discussed these issues (and an idea ignored, if not contested, by most of the women I know) was that the hunger for sexual variety was a basic and natural and more or less irresistible impulse. “I haven’t ever seen anyone who doesn’t deliver on every single demand their sexuality makes on them. We make the mistake of thinking some people have a stronger will, they don’t,” says a forward-thinking friend. “There is no more unnatural principle of social organization than sexual exclusivity.” But like other of my male sources, he didn’t want me to use his name. “Don’t get me divorced!” was the refrain. All of these guys nursed a fantasy, as quaintly surreal as an old tinted postcard, of a perfectible world in which we might have sex outside our primary relationships and say that it doesn’t mean anything.

Fake Eliot Spitzer, take it away!

Alan Becker Knows Math.

Or does he:

“It’s simple math: If X dollars come in, you can’t pay more than X dollars out,” Becker said. “If you want to be conservative and cut costs, there’s not a whole lot of places you can do it — where 70 percent of your expenses is people — except people.”

A managing partner speaking on condition of anonymity said Becker’s math does not add up.

“In order to cut all lawyers compensation by 12 percent the problem must be bigger than a 4 percent reduction in revenue,” the managing partner said. “I believe he’s either off more now or afraid he’ll be off more later.”

The managing partner also said that it is highly unusual to cut pay to associates when the firm’s profitability is suffering.

Is there a problem right now being a law firm that primarily relies for its revenue on condos, condo boards, and developers?

Lawyers in Love

We've had some discussion already on the proposed Akerman/Wolf Block marriage. Here's a report from New York Lawyer on where things may be at:

According to several sources who recently spoke to The Legal, talks between the two firms are continuing and a potential merger "sounds like it's close." No one was aware of any imminent partner votes, however, and Alderman declined to comment for the article or on recent media reports about the potential deal.

In an article by the Daily Business Review, a sister publication of The Legal, an Akerman Senterfitt shareholder who did not wish to be named confirmed talks were ongoing, but said Wolf Block's unfunded pension plan was a "sticking point" in the deal. The shareholder said a vote was not imminent.

A source told the Daily Business Review midlevel attorneys at Akerman Senterfitt are reluctant to back the merger because of the financial liability the pension fund could cause them. One offer on the table entails a yearlong probationary merger, after which the parties could back out, a source said.

A spokeswoman for Akerman Senterfitt said the firm has nothing to report and does not comment on information published based on anonymous sources.

Sources who spoke to The Legal doubted the pension plan was an issue in this particular case or in Wolf Block's failed merger talks with Cozen O'Connor.

Bill Brennan of Altman Weil said unfunded pension plans are often a "major impediment" to completing a successful merger. He said he has never heard, on the other hand, of a probationary merger and "can't imagine the circumstance where that would be attractive." He said mergers are difficult to unwind, and he can't see how such a setup would be structured that would benefit either firm.

In an October 2006 interview, Alderman told The Legal Wolf Block terminated its pension plan at least 10 years ago and there were a "manageable" number of attorneys who were grandfathered in. The firm now uses a 401(k) plan, he had said.

Alderman said in February Wolf Block is talking to firms that are smaller in size and ones that are comparable in size, with the latter being the more difficult. He said then that he is not talking to anyone who would acquire the firm. Most of the discussions are with firms smaller in scale.

"We are not selling the firm," he said. "The firm is not for sale."

Alderman had said he considers Akerman Senterfitt a comparably sized firm, but that could add another challenge to an already difficult process.

According to Alderman, part of the reason the Wolf Block-Cozen O'Connor discussions — which ended in February 2007 — didn't work out was structural. Wolf Block is a limited liability partnership and Cozen O'Connor is a corporation, he said in February.

A source close to the Wolf Block-Cozen O'Connor merger talks said the pension plan was never an issue in the discussions because Cozen O'Connor has no unfunded liabilities and felt it would be able to work that issue out.

The source said problems ensued over structural issues that Wolf Block was not willing to change. After looking at the balance sheets of the two firms, which in the source's opinion demonstrated Cozen O'Connor's strength over Wolf Block financially, it only made sense for the combination to go the way Cozen O'Connor wanted it to. One of the main structural problems, the source said, was the issue of a partnership versus a corporation.

Alderman said in February that business structures, capital considerations and differing tax years make finalizing a merger a tough task.

Akerman Senterfitt is a corporation, which could throw a roadblock into any merger discussions between the two firms. Their financials, however, are comparable.

Again, feel free to email me privately with any scuttlebutt on this one.

Burnin' Love

So folks, how was your weekend? Like many of you, mine was smoky and hot. Don't you just love it when the Everglades burns, the hot smoke blows east, and there is not a drop of rain?

Walking to Starbucks this morning I bumped into a few lawyers I know, heading to the circuit courthouse, fully dressed in their suits and gas masks. Charming. Downtown is a pit even in the best of circumstances, but right now it's an intolerable cesspool of sights, sounds, and odors. Oh yeah -- and "downtown ambassadors." Your tax dollars at work.

Screw it, I'm going to get my shoes shined.

True Love?

"You say my kisses are not like his/This time I'm not gonna tell you why that is."

It's nice when two firms decide to end their courtship and tie the knot. So it is with baited breath we wait to see whether Akerman will navigate through choppy waters and find love on the other side, in the warm arms of Philly-based Wolf Block:

Merger talks between the firms have been under way for weeks.

One roadblock in the discussions is Wolf Block’s unfunded pension plan. Wolf Block wants Akerman to take over that financial liability, the sources said.

Mid-level attorneys at Akerman are reluctant to back the merger because of the financial liability it could cause them. One offer on the table entails a year-long probationary merger, after which the parties could back out, a source said.

The marriage of the firms would also give birth to a new name. A source said the combination would likely be called Akerman Wolf. That, too, is still being hashed out.

A senior shareholder at the firm who spoke on condition of anonymity confirmed that talks are progressing and that the pension plan is the major sticking point. The shareholder said a vote is not imminent but that he would support a merger with another large firm.

The shareholder said Akerman has been in talks with other firms, too.

Akerman and Wolf Block have little geographic overlap. Wolf Block is concentrated in the Northeast, while Akerman is predominantly a Florida firm with outposts in places like Washington and Los Angeles.

I know I have some Akerman readers. Does this merger make sense? Thrilled as in new love, or jaded like the rest of us humpers? Respond privately if you wish (anonymity secured).

Equitable Distribution Changes Loom…

On July 1, 2008, only a few short weeks away, the new version of Florida Statute §61.075 will take effect. Basically the changes allow for:

1. Partial equitable distribution on an interim basis, prior to trial, if the Court finds good cause and sets aside the assets in question;
   
2. Sworn motions asking for that partial early distribution;
   
3. The Court's final equitable distribution taking into account the assets already distributed;
   
4. A shiny new restatement of the statutory burden of proof in favor of assets acquired during the marriage being marital, and against the party claiming otherwise;
   
5. Another shiny new restatement of the relevant statutory burdens on interspousal gifts…
   

   The absolute abolishment of special equity…in favor of more claims of unequal distribution. Seems like it would make it easier to get an unequal distribution than a special equity grant, but time will tell…
   

   
    

The full text of the bill to be a law can be found here. I guess the old Chinese curse holds true for us…we all live in interesting times.

Third DCA Sets a Limit on Rehabilitation

Rehabilitative alimony has long been allowed in Florida Courts, but without statutory guidelines, the best the case law really had to offer was that you had to have a plan for rehabilitation and that, most likely, there has to be some nexus between the need for rehabilitation and the alimony awarded. The Third District found error in an award of rehabilitative alimony this week where as the marriage was short-term, the Former Wife had skills but chose not to employ them, there were no kids, and there was no evidence of a need for rehabilitation as a result of the marriage or anything that occurred during the marriage. For more, see the full text of the opinion here.

What is Bruce Baldwin's Game Plan?

I read the paper this morning about Judge Bailey's ruling in the secret lotto case:

A Miami-Dade judge on Thursday said the wife of a lottery winner cannot go forward with a lawsuit against her husband until she can provide a legal argument to support her claim for half of his jackpot.

''She has no identifiable legal rights at this time,'' Circuit Judge Jennifer D. Bailey said. ``Where does the law say you automatically have a right to participate in the proceeds?''

Bailey dismissed temporarily the lawsuit Donna Campbell filed against her husband, Arnim Ramdass, an American Airlines mechanic who hit a $19 million Florida Lotto jackpot last summer with 16 of his co-workers.

Campbell and her attorneys have 20 days to amend their complaint. They will try to prove that the money Ramdass used to buy the lottery ticket came from his work salary, which is considered a marital asset.

''It appears that once we do that, we can go forward and get a trial date and proceed with vindicating Ms. Campbell's rights,'' attorney Bruce Baldwin said after Thursday's hearing.

Hold on there Bruce -- that's an awfully rosy picture you're painting.

Can someone help me understand why Bruce is suing for fraud before Judge Bailey instead of going after the money as a marital asset in divorce court? Judge Bailey herself raised the issue:

''I'm not sure she has the ability in this court -- civil court -- to stop her husband from disposing of the lottery money,'' Bailey said.

Has Bruce sought to enjoin the husband from disposing of the lottery money, or sought to deposit the funds into the court registry? Anyone with some insight on this please email me or post your thoughts.

Rock Me Zachariah!

'We believe the charges are completely unfounded,'' said Marty Steinberg, a Miami lawyer who represents Zachariah. ``He has an unblemished record for ethics in both his professional and personal life.''

That's big Marty going to bat for GOP bigwig, IVAX director, and prominent Broward doctor Zachariah Zachariah. And even though he doesn't represent the good doc, SFL fave Mike Tein agrees:

Federal prosecutors would have a difficult time winning a criminal securities-fraud case against Zachariah, said Michael Tein, a Miami securities and white-collar defense lawyer not involved in the case.

''Dr. Zachariah is one of the most respected physicians and philanthropists in our community, and he has absolutely no criminal history,'' Tein said.

Darn, that Tein is good -- he is even effective at defending clients he does not (presently) represent.

And now we dance:

He was the first punk ever to set foot on this earth.
He was a genius from the day of his birth.
He could perform cardiology like a ring and a bell
And ev'rybody screamed:
Come on, rock me Zachariah.

Sorry, I had an 80s' moment there. I feel better now.

RIAA Explains How to Catch Alleged Music Pirates

The RIAA Recording Industry Association of America used the same file-sharing software that online pirates use, an RIAA representative said during a private demonstration of how it caught alleged music pirates.

The RIAA uses LimeWire.The RIAA has a list of songs owned by the RIAA's members. Media Sentry, runs copies of the LimeWire program and performs searches for those copyrighted song titles, to see if any are being offered by people whose computers are connected to the LimeWire network. The software lists IP address of active file sharers. The names of the people associated with particular IP addresses are not public, it is easy to find out which IP addresses are registered to each Internet-service provider. Using public databases, Media Sentry then locates the name of the Internet-service provider and determines which traders are located at colleges or universities.

Internet Computer Lawyer Tampa Florida

3d DCA Watch -- Not a Good Day to Be John Ruiz

I like John, and have had some good dealings with him, as I am sure many of you have had as well.

That's why today's opinion from the 3d DCA is causing us here at SFL some cognitive dissonance. The case involves a slip and fall at an apartment building that John and a partner allegedly owned through a company called Carmel:

While a single badge of fraud may amount only to a suspicious circumstance, a combination of badges will justify a finding of fraud. United States v. Fernon, 640 F.2d 609, 613 (5th Cir. 1981); Johnson v. Dowell, 592 So. 2d 1194, 1197 (Fla. 2d DCA 1992). “The existence of badges of fraud create a prima facie case and raise a rebuttable presumption that the transaction is void.” Stephens v. Kies Oil Co., Inc., 386 So. 2d 1289, 1290 (Fla. 3d DCA 1980). Consideration may also be given to factors other than those listed. In re Miller, 188 B.R. 302, 305-306 (Bankr. M.D. Fla. 1995). Courts may take into account the circumstances surrounding the conveyance. Kirk v. Edinger, 380 So. 2d 1336, 1337 (Fla. 5th DCA 1980).

In our case, these circumstances included: (1) requesting an extension of time to file an answer until the closing on the apartment complex; (2) filing an answer and eleven affirmative defenses without mentioning that the complex has been sold and the closing is taking place that same day; (3) receiving a request to produce from the plaintiff and waiting until the thirtieth day to then move to withdraw; (4) filing a motion to withdraw for irreconcilable differences without explaining that those differences were with a corporation in which counsel was a 50 percent owner and director; and (5) certifying in the motion to withdraw that it was not made in an effort to delay the action and was “made in good faith.” Here, Mejia clearly satisfied her burden by presenting numerous undisputed facts which supported several badges of fraud, as well as additional facts and circumstances buttressing a finding that Carmel did “delay, hinder or defraud” Mejia.

Query why Judge Scola -- a very smart and capable judge -- went the other way on fraudulent transfer. Does anyone have more background on this case?

Wes Parsons and the Logic of Trying Canker Cases

The DBR has a sympathetic article on Bobby Gilbert's ongoing efforts to hold the State accountable for destroying all of our citrus trees. In it, Bobby says these cases have been one of the greatest learning experiences of his career, and that it has mostly taken over his practice for the last year:

Over the past year, Gilbert said the case has taken over almost his entire practice and his free time. He expects the amount of time to lessen moving forward as colleagues including Nancy La Vista and others at Lytal Reiter Clark Fountain & Williams in West Palm Beach, Michael Pucillo with Berman DeValerio Pease Tabacco Burt & Pucillo in West Palm Beach, and Jamie Cole at Weiss Serota Helfman Pastoriza Cole & Boniske in Fort Lauderdale increase their involvement.

Gilbert and his colleagues have spent large amounts of money on the litigation, but he declined to comment how much they have paid out of pocket.

Gilbert and his team will get a piece of the Broward verdict, but he would not say how much the plaintiff lawyers would seek.

La Vista said the cases were taken on a contingency basis.

“If you don’t have contingency fee cases, then you’ll never be able to protect someone’s constitutional rights,” she said. “You’ll never have a day in court for someone that can’t afford a lawyer.”

So for us it is admirable that Bobby and his team keep up the fight, and we wish him well.

Meanwhile, the lead attorney for the State, Adorno attorney Wes Parsons, is getting paid $275 an hour to defend these cases to the death. But for Wes, this is a public service. Listen to his reasoning:

“Even if you were to start counting defense dollars versus tree payments, I don’t think it would work out to be cheaper to give money to plaintiffs counsel and their constituents than it is to pay lawyers to defend you,” Parsons said. “The people who will make money are the class members and the plaintiff counsel. That money is going to presumably come out of general revenue of the state of Florida at a time when it’s suffering budget cuts and doesn’t have enough money for schools or law enforcement.”

But it has plenty of money to pay Adorno to try multiple canker cases?

Apparently, for Wes, it makes more sense for the State to spend taxpayer money on private lawyers to work up and try canker cases over and over again. That, apparently, is economically more sensible than sitting at a table and working out a reasonable resolution so that affected consumers can receive real renumeration for their lost trees, and not some nonsense voucher at Wal-Mart.

And yes, the plaintiffs' lawyers who worked so hard on this should get paid, too, just like Wes.

I've Said It Before and I'll Say It Again: Put Down Your Blackberries!

Back in March we had a spirited discussion over a recent study that found that fiddling with your Blackberry or laptop in bed may lead to diminished sexual relations with your spouse or significant other.

Here's the other side of the coin, according to this blockbuster study:

The survey, "Sex and the American Mom," revealed that 34% of these married moms is in the midst of, or has already had, an affair. Think of three married moms you know and ask yourself, "Which one is cheating?" We tried this and Colleen came up empty. Taylor could think of one or two, but not one out of three--that number seems staggering. Are we just naïve? In the dark? Out of touch? Which of our friends has managed to stray without anyone knowing (and when do they find the time and where they hell do they go?)?

Another somewhat mind-blowing result of this survey was that 77% of the respondents said they want more sex. That's more than three quarters of the 30,000 women asked who said they aren't getting enough. Again, we ask, who are these people? And are we to conclude that so many stray because they are not sexually satisfied?

Cheating seems to be a direct result of not getting what you need, be it sex, attention, openness, what have you. If there is a void, and it can be filled by someone else, chances are it will be. Affairs used to almost guarantee a trip to divorce court. Today, however, the "cheatee" might experience a sense of betrayal, but the "cheater" is not necessarily stigmatized socially, and often both agree to at least attempt reconciliation. It has even been viewed as a "wake-up call" -- one that can actually save a marriage, with each person expressing a sense of shared blame.

As a society, it seems as though we've become less judgmental about affairs in general. Maybe we've realized how hard marriage is and have simply gotten more realistic. But, maybe the scope of the issue is bigger, and what's happening is that we're in the midst of redefining marriage as we have known it.

The stereotype, of course, is if there's someone sneaking around in a marriage, it's the guy. In general, no one is surprised to hear that men cheat on their wives. However, when it comes to wives cheating on their husbands, while not entirely new, it is much more common than we thought. When we told men that one in three married moms cheat (or have cheated) on their husbands, and that a solid majority are actually looking for more sex than they're having at home, most mens' eyes light up with surprise and certainly curiosity. Some even joked about where they might find one of these gals. But, what we didn't hear was "Yes, I can understand that. I'm not in the mood very often and I'm probably not satisfying my wife's sexual desires."

Could the American male be suffering from a proverbial "headache?" Maybe the insatiable male sex drive is just a myth? After hearing what Michelle Weiner-Davis, an internationally recognized relationship therapist and the Director of The Divorce Busting Center, had to say in an interview with Psychology Today, this may not be far-fetched. She thinks we don't hear a lot about the man's lack of sexual interest because, "Men are so ashamed of speaking up about [it]." Estimating that it affects, "at least 20 to 25%" of adult males," Michelle adds, "...low desire in men is America's best-kept secret."

I have no doubt some of you -- and you know who you are -- will have some pithy comments on this one.

"If He Dies, He Dies."

Hi folks. Let's talk some South Florida wins and losses this Tuesday.

First, Bilzen gladiator William K. Hill scored an impressive victory the other day, obtaining an order of dismissal in a case over the recalled Graco "Simplicity" cribs. I can't for the life of me follow the reasoning of the district judge but hey, maybe he was channeling my man, Death from Above, The Siberian Bull.

Second, one of our favorite local lawyers, former Miami City Attorney Jorge L. Fernandez, loses another one, this time involving the controversial Coconut Grove 300 Grove Bay Residences project:

The city's April 2007 approval ran afoul of state zoning laws on several fronts, the judges ruled in a 10-page opinion that was filed May 7 and began circulating Monday.

Mayor Manny Diaz had improper discussions with the developer ''away from the public earshot,'' and the project would be wildly out of character for the neighborhood, the judges found. The towers would be built on bayside property adjacent to Mercy Hospital.

The plaintiffs who filed suit to overturn the condo project included backers of Vizcaya Museum and Gardens. They argued that the condos -- slated to reach as high as 308 feet -- would spoil the museum's picturesque views.

''The court got it right,'' said Stephen Darmody, an attorney representing museum supporters. ``The city here simply did not pay adequate attention to the requirements of the law.''

The decision was a jarring setback for Related, which has emerged as one of the state's most prominent builders.

Related Group attorney Elliot Scherker said it was too soon to comment on whether the company would appeal.

''We believe that this project was properly approved,'' Scherker said. ``We respect the court's opinion, and we're considering our options at this point.''

You can read the opinion here.

Congrats to Steve and the legal team over at SHB that pulled off this win-win, one that is actually good for our community and for those who live and practice here.

A Mitzvah From Marks Hicks and His Firm

This outrageous story is more suited for Rumpy (and I'd be interested in his opinion on it), but it does involve our good friends over at Mark Hicks' shop. It's about a horror story that resulted from a police sting on "illegal taxis" that happened to snare a guy who gave an undercover office a ride home. Turns out the "criminal" tends the house of Mark Hicks' father. Go get 'em Ellen:

He retired after a work injury — a tie he was working on snapped and split the top of his head open. He was hospitalized for 26 days. He removed his cap to reveal a long scar from the bridge of his nose to the back of his head. He now lives off of his pension and, since 1990, an odd job caring for ailing snowbird Hillard Hicks’ Coral Gables property. There, he does light housework when the owner returns to Idaho — he flushes the toilets, puts the mail on the table, washes the windows and cleans the patio.

As it turns out, his employer’s son, Mark Hicks, is a partner at the Hicks & Kneale law firm in Miami. When O’Neal called his boss and told him the story, his son’s firm decided to take the case pro bono.

“It was outrageous,” said Hicks & Kneale attorney Ellen Novoseletsky, who was assigned the case. “He received a notice that his car would be auctioned off on June 3 if he didn’t come up with the fees. The firm had to advance him the money. When Mark Hicks first heard the story, he thought, ‘Is the county spending our tax dollars on sting operations to catch little old men and not targeting the real criminals?’”

Good for you, Mark.

So as our state judiciary faces layoffs and terminations, as our justice system deals with historic funding cuts, our smart guys are busting people for hydroponic pot operations and old men for taking $6 bucks to give someone a ride home.

Internet Drug Indictments

Florida Federal prosecutors in the Middle District have charged physicians and others with running an web-based prescription drug operations and claim they are illegally dispensing millions of doses of medication.

The website operators are charged with hiring pharmacists and doctors to issue prescriptions based on Internet questionnaires, the charges say. According to the United States Attorney, Web sites and representatives are used to sell the drugs.

Prosecutors intend to prove that doctors and pharmacists are paid to review short questionnaires and then never see the patients they were prescribing medicines to. Beyond that, none of the information submitted was ever verified, authorities said.

W F Casey Ebsary and cocounsel Marcelino Huerta III have successfully defended such claims in Federal Court. Call Toll Free 1-877-793-9290 for more details and to get some help today.

How to Commit Career Suicide

NY Lawyer has some interesting tips for you young big-firmers out there, regarding how not to behave in your first few months on the job. First, try to cover up your mistakes. Then abuse the staff. Finally, badmouth firm administration and clients. Oh, drink lots of booze and send angry emails.

In other words, act like an arsehole:

Most of what you need to know about getting along in the social setting of a law firm you probably (should have) learned in kindergarten. Consider just these few simple rules:

• If you're not sure how to behave, ask for help. Most of the time, a colleague, a supervisor (and surprisingly perhaps, often a staff member) can steer you toward what will be considered acceptable in a given situation.

• If you make a mistake (and especially if you think you've hurt someone's feelings), apologize and ask what you can do to rectify the situation.

• Learn to play nice. You don't have to become a Stepford associate, but you should be able to muster basic civility every day, in every encounter in a law firm. If you're just too grumpy to be nice, shut your door until the mood passes, or go home and give it another try tomorrow. And if you blow your top at some point, re-read the prior rule (apologize).

Boy, how many flameouts have we known who didn't figure out how to behave and who quickly passed through big firm doors? Sadly, some of them managed to stick around.

Worst Downtown Parking Garage?

Oh, there are so many choices.

For my money I would have to nominate the Mellon Financial garage on Brickell -- dark, claustrophobic, the spaces are too small, the lanes too narrow, and there is no place to turn around. Other than that it's perfect!

Typical Miami -- build an inviting, opulent Class A building, then append to it a horror show of a garage that only adds to the anxiety and stress of fighting your way through traffic to get to it.

Your choices after the jump.

3d DCA Watch -- Judge Salter Is One Busy Guy

Putting aside all the pesky opinions that have the word "State" in them, let's take a look at what's left:

American Home Assurance v. Junger:

A case interpreting an old insurance policy that covered Eastern Airlines pilots who were commissioned by the US Government to fly missions to Vietnam. Inexplicably, the pilot that is the subject of this suit was still flying such missions in 1986. Huh? Boy, that Reagan Administration was pretty sneaky.

Anyway, you have here what is quickly becoming Judge Salter's signature style -- a crisp, clear, logical opinion, neatly organized, and actually helpful to those who practice in this area.

Stirman v. Graves:

This products case involves an allegedly defective teapot sold by Target as part of the "Michael Graves" collection.

Surprise -- Michael Graves likes to make things in China! Double surprise -- it's impossible to figure out who owns what in these factories in China!

So the plaintiff amends to add a related "Michael Graves" entity with a similar name and common corporate address to the two already-named defendants. For reasons not readily apparent, the trial judge grants a motion to dismiss as to the newly-named party on statute of limitations grounds, holding that the amended complaint did not "relate back" to the timely-filed original complaint.

Are you kidding me? Wow.

Anyways, Judge Salter carefully and precisely walks the trial judge through the relation-back doctrine, slowly this time so EVERYONE in the room can understand it.

Judge Salter also had time to author an interesting divorce opinion, Iannuzzelli v. Lovett, which deals with the significance of an immigration affidavit in a divorce setting.

Judge, as you know we're big fans of your opinions but please -- get some rest. Read a book. Take a walk. All work and no play and all that.....

John McCain Thinks Federal Judges Are Power-Mad Dictators

I like to leave politics to other blogs, but I did note these strong words about the federal judiciary spoken yesterday from our favorite cranky old guy:

“With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress and the states. They display even less interest in the will of the people.”

That's right - who cares about the will of the people? "Get over it. It's so old by now!"

Tampa RIAA USF Music-File-Sharing Case Update

A Tampa federal judge has refused to dismiss a counterclaim filed in federal court by a USF student who accuses the recording industry of using deceptive tactics against USF students named in music downloading lawsuits.

The Tampa students accuse the RIAA, the recording industry of hiring private investigators to invade private computer networks. They also accuse the industry of using the court system as an investigative arm and then extorting money from people, using private information gained from the courts to force settlements.

The record companies have sued more than a dozen University of South Florida students, accusing them of illegal downloading. The RIAA suits and the threat of suits have caused at least 64 USF students to pay off thousands of dollars to settle music piracy complaints with record labels.

Tampa Attorney RIAA File Sharing

Paul Singerman: My Client Feels Your Pain

The cratering housing market and the collateral effects of our deepening recession are always fun topics, aren't they?

Here's a feel-good story that is sure to be a smile on your face, starring uber-bankruptcy guru Paul Singerman on one side, and fearsome Bob Charbonneau on the other:

Vincent Santanelli was delighted when his elderly father-in-law told him he planned to purchase a home at Cascades at Groveland, a Florida retirement community west of Orlando.

Still under construction, the property was a short distance from Santanelli’s own Groveland home and was reasonably priced – a rare find in central Florida’s tight housing market. Best of all, Santanelli says he felt at the time, the home was a product of Levitt and Sons, a Ft. Lauderdale-headquartered building giant with a solid reputation for high quality and service. The 78-year-old company claims on its Web site to have built more than 200,000 homes across the United States.

With some financial help from Santanelli, the father-in-law placed a $20,000 deposit on the home and put the Cozumel duplex he lived in on the market. He quickly received a couple of offers and was about to sell when, in November, the retired senior and his family learned that Levitt and Sons had filed for bankruptcy.

“We received no indication that this was going to happen,” says the 64-year-old Santanelli, who asked that his father-in-law not be identified by name. “We’re still waiting to find out if Bank of America is going to take over the development so we can get the deposit back. My father can’t sell the Cozumel home, and now that the value of it has dropped because of the market, he’s looking at a bigger mortgage than he’d anticipated. He has no idea where to turn next.”

Santanelli and his family aren’t alone in their predicament. When Levitt and Sons filed for Chapter 11 bankruptcy protection Nov. 9 after defaulting on $181.5 million in debt, hundreds of customers who had shelled out unsecured deposits were suddenly cast in financial limbo. Chapter 11 allows a financially troubled company to put its debts on hold while it tries to reorganize its contractual obligations. While this goes on, debt-holders like Santanelli’s father-in-law have to get in line with everyone else -- homebuyers, contractors, everyone -- to who the bankrupt company owes money. To get a sense of just how long that line is in Levitt’s case, more than 650 liens were filed against the company in St. Johns County, Fla., alone within days of the bankruptcy.

Calls to Levitt and Sons seeking comment were routed to Kekst and Co. Inc., a financial services firm in New York City, which responded with a prepared comment from Levitt lead bankruptcy attorney Paul Singerman.

“Levitt and Sons has made clear from the very first day of its bankruptcy case that one of its primary objectives was to minimize the loss and frustration of its valued customers,” Singerman stated. “We understand that many of our customers have experienced financial and other distress as a result of our bankruptcy and the catastrophic and unprecedented downturn in the residential real estate sector in Florida and beyond. We have endeavored to be as sensitive as we could possibly be to our customers, and we will continue to do so.”

That the company has tried to be sensitive to its customers’ plight is a statement Levitt homeowner Dan Wenk strongly disagrees – so strongly, in fact, that he maintains a Web site dedicated to exposing alleged Levitt wrongs. The Web site chronicles Wenk’s three-year battle with Levitt over toxic mold and water damage in his Clermont home near Groveland -- damage he claims made his home unlivable and that Levitt has refused to address. Wenk says his battle took on new urgency in August 2006 when he was diagnosed with leukemia.

“I’m not blaming Levitt for my illness, but I’m saying, ‘Hey, I can’t live in the home you sold me, and you haven’t done anything to fix the situation,’” says Wenk, adding that he and his family had to rent another home in which to live. “I hired an attorney, and when we finally sued Levitt, it was about the same time that I noticed some of the financial things going on with the company -- they were reorganizing their stock. Levitt requested an extension for responding to the points we raised in the suit, then they asked for more time. Then, I found out they had filed bankruptcy.”

Wenk says that the cost of his now-stalled lawsuit, medical expenses and the burden of maintaining a second home pushed him over the financial edge.

“Because of this, I’m having file for bankruptcy now, and my mortgage company had to foreclose on the Levitt house.”

According to Robert Charbonneau, a Miami attorney representing about 45 Levitt homebuyers in South Carolina now seeking to get their deposits back, versions of Wenk’s story are being repeated across the country. With the U.S. economy already teetering on the brink of recession, the company’s bankruptcy could not have come at a worse time for people whose finances were tied to the building giant.

“Hundreds are affected,” he says. “When a company like Levitt goes under like this, the ripple effect is felt everywhere -- in construction, the construction materials industry, landscaping, maintenance. The effect may be felt in sectors you and I can’t even imagine right now.”

If there’s any lesson to be learned from the Levitt bankruptcy, Charbonneau says, it’s that homebuyers should avoid unsecured deposits like the plague.

“Make sure that your deposits are escrowed with an escrow agent, like a law firm or title company -- preferably a law firm,” he says.

...sniff.....Paul, your words have left me a little teary.

And I didn't know still-bearded Mike Ehrenstein and Bob left Kluger Peretz to form their own firm. And they even have a snazzy website.

Why don't people tell me these things?

Citrus Canker Update

"The state clearly won this case, and I wasn't going to leave that room until I was sure that was reflected.''

That's juror Kevin Edwards, commenting on the remarkable defense verdict in the Broward citrus canker case. Remember, this was a trial where liability was presumed, and the jurors were only deciding damages.

Plaintiffs' attorney Bobby Gilbert, who called the verdict a "partial victory and a partial defeat," was already talking appeal:

After the verdict was read, several jurors told homeowners' attorney Robert Gilbert that state scientists' assertion that the trees were subject to future infections was credible. Gilbert had fought to bar that testimony from trial.

''The judge allowed them to hear flawed science, and that was the determining factor in the jury's decision,'' Gilbert said. ``I wouldn't use the word insult, but the award was far less than full compensation, and we're not satisfied.''

The state embarked on its aggressive eradication program in 2000 to prevent the spread of canker -- a disease harmless to humans but one that blemishes fruit and debilitates trees. Despite a decade of work and about $1 billion in costs, the program failed. The state and the federal government abandoned the practice in 2006.

Attorneys for the state looked at the verdict as a partial victory, taking note of the praise jurors found in their evidence.

That could bode well for the state, which faces similar court challenges in Miami-Dade, Palm Beach, Lee and Orange counties. The state destroyed about 578,000 trees ''exposed'' to canker, including 133,700 in Broward and 249,000 in Miami-Dade.

''This was a defense verdict,'' said state attorney Wes Parsons. ``This was within the realm of what we thought might happen. We felt the trees lacked value of any kind.''

APPEALS LIKELY

Both sides are expected to appeal the decision -- the state wanting to pay less and attorneys for homeowners hoping a new jury will raise the value of the trees.

Several homeowners, present for the 7 p.m. reading of the verdict, expressed disappointment. ''This is a big defeat,'' said Tim Farley of Parkland, who lost eight trees to the program in 2000. ``The Department of Agriculture put on a smoke screen, and the jury didn't see through it. This is not just and fair compensation.''

Hmm, as I suspected yesterday, this is not good -- indeed, the jury found the State's science "credible." That's a big problem, unless Bobby can get the appellate court to keep it out.

What to do with the other cases?

Sex Offender Registry Hacked

One of the rules of computer coding is to check your input. Especially when your input comes from users. The Oklahoma Department of Corrections missed that day in computer class. DOC trusted anonymous user input on their public-facing Sex Offender Registry website and they blindly executed it and displayed whatever came back.

The result of this bad coding had some rather serious consequences: the names, addresses, and social security numbers of tens of thousands of Oklahoma residents were made available to the general public for a period of at least three years.

Computer Lawyer Tampa Florida Internet

Still Deliberating? Oh-Oh.

That's the Broward jury in the citrus canker action brought by Bobby Gilbert:

Unable to reach a verdict in its first day, the 12-member panel returns Tuesday to continue deliberations in a case that could put extra money in the pockets of tens of thousands of homeowners whose trees the state destroyed in a failed program to eradicate citrus canker.

A positive outcome for more than 58,000 local homeowners won't necessarily mean a check is going to arrive in the mail anytime soon. If the state loses, it is likely to appeal. The verdict could influence four similar lawsuits pending in other parts of the state, including Miami-Dade County.

Jurors, who were handed the case early Monday after two weeks of tedious testimony, must decide whether the state shortchanged homeowners when it gave them a $100 Wal-Mart gift card for the first tree lost and $55 each for the rest.

''The constitutional requirement of full compensation means that the property owner must be paid completely for the whole loss resulting from the taking,'' Judge Ronald Rothschild said in his instructions to jurors.

Lawyers for the state insist the cost of replacing a tree should equal the price of an easily transplantable tree at a nursery, plus the cost of fertilizing it for several years and 5.3 percent interest per year.

Under their formula, homeowners should collectively receive $4.1 million to $4.8 million for the 133,700 trees destroyed -- well below what already has been paid out to tree owners in Broward County.

So it's up to jurors to decide whether tree owners are entitled to receive more money under the Florida Constitution's requirement of ''full compensation'' when the government takes private property.

Not a simple thing. Jurors must determine the actual value of the 133,700 citrus trees destroyed in Broward during the state's long-running canker eradication program.

One tool could be a formula that takes into account a tree's height and health, among other factors. A simpler solution would be for the jury to require the state to award a lump sum to be divided among thousands of homeowners.

Said alternate juror Larissa Lockett, who said she has yet to make up her mind: ``I think it's very hard to decide. It's not something where you can just pick one side.''

Respectfully, yes it is. You are a juror. It is your duty and obligation to "pick a side."

Am Law 100 -- South Florida Focus

So big-firmers, how did your team do?

Let's take a look.

In terms of South Florida, Baker & McKenzie rules the roost. Coming in at number one locally, third nationwide, this demure little shop raked in $1.83 billion in gross revenue.

Darn, Bob Kolhman, I just can't quit you!

Home-grown GT came in second, and eighth nationwide, pulling in $1.18 billion in gross revenue. Congrats Cesar, but your parking garage still stinks.

Ed Soto came in third, tenth nationwide, as Weil Gotshal had another great year, with $1.175 billion in gross revenues. Ok, Ed didn't do it ALL himself, but since he looks so much like Stephen Colbert, we like to think he did.

Morgan Lewis is a close fourth, just topping $1 billion in gross revenue.

The rest of you folks couldn't even generate a billion in gross revenue, let's face it you don't really deserve to be listed in the same post with the billion dollar club. McDermott, Hogan, Hunton, K&L, call when you guys starting making the big bucks.

Live Ex-Steel On Steel Action!

I hesitate to say "hot,"but here are two former Steel Hector lawyers, Lance Harke and Robert Vaughan, looking at an interesting legal issue from plaintiff and defense perspectives:

“This is an emerging area of the law, but this is not the first time the law has dealt with an emerging technology,” Harke said. Businesses “are the ones who invite you into their environment. I think you can reasonably expect that when you make a purchase that you not have four new credit cards issued in your name.”

Businesses, universities, hospitals and others safeguarding sensitive information find themselves under the gun by lawmakers to avoid breaches.

Under Florida law, a data breach can cost $1,000 a day for the first 30 days if it goes undisclosed, said Robert C. L. Vaughan of Squire Sanders & Dempsey in Miami. The fine can increase to $50,000 a month for the next six months and $500,000 a day after that.

“They are not only pretty serious about maintaining the integrity of the data but also disclosing the breach,” said Vaughan, a commercial litigator who has carved out a niche advising businesses about data protection and regulatory compliance.

Good luck gentlemen.

Ok, if we're casting an ex-Steel Hector, WWE steel cage death match, who would you have in there? Joe Klock as a Vince McMahon-type is a no-brainer, I'd consider Lew Murphy as a Lou Albino manager-type, and Alvin? Hmm....

You guys have other suggestions?

Stu Grossman Has Floor Seats to All Heat Games (And You Don't)

Big Stu, in a letter to the Herald today:

For the past 11 years I've had the privilege of watching Pat Riley coach the Miami Heat from a seat 20 feet from him.

Ok ok, we get it -- you're rich and successful, and we're not (as much).

"It's a Racket"

That's Miami attorney Matt Weinstein, describing the ADA practice of Sam Aurilio:

"He's a maverick," says attorney Samuel Aurilio, who has been Fox's all-important sidekick in his crusade to get businesses to comply with the Americans With Disabilities Act.

Others who have sparred with Fox use far less generous terms to describe him.

"He's what we like to call a professional plaintiff," says attorney Joe Fields, who has represented many of the business owners and views Fox's activities as more of a shakedown than a humanitarian campaign.

After six years and 139 lawsuits, Fox isn't surprised - or dismayed - by such assertions.

"I have no problem being accused of being a professional whatever," says Fox, whose childhood polio returned to put him in a wheelchair about 10 years ago. "I do this because I don't want the disabled people who come after me to go through what I've had to go through."

The former Riviera Beach city councilman is far from alone. But while most of the thousands of other Americans With Disabilities Act lawsuits filed in federal court in the Southern District of Florida are on behalf of people associated with disabled advocacy groups, Fox flies solo.

"I don't like bureaucracy," he says with a shrug.

When he visits a car dealership, restaurant, gas station or shopping center that doesn't have enough handicapped parking spaces or grab bars in the bathrooms, where counters are too high, doors are too narrow or other obstacles to the disabled are found, he gives Aurilio a call.

An expert is called to verify his claims. In most cases a lawsuit is filed. Eight, with nearly identical claims, were filed on one day last month alone.

Such tactics have been controversial since shortly after President George H.W. Bush signed the landmark legislation on July 26, 1990.

Overnight, critics complained, a cottage industry was created for so-called drive-by lawsuits filed by disabled people who linked up with unscrupulous lawyers who knew they could cash in on the law, which requires the losing side to pay their attorney fees.

For people like Fox, filing the lawsuits poses little risk. Aurilio takes the cases on a contingency basis. If he loses, which is rare, Fox doesn't have to pay. If he wins, the business pays Aurilio's fees.

Lawsuits rarely go to trial. In pretrial settlements, business owners agree to renovate their stores and pay Aurilio's fees.

"It's a racket," says Miami attorney Mathew Weinstein, who has represented business owners in lawsuits filed by the Fox-Aurilio team.

Aurilio, who has filed 274 ADA cases in Florida, including Fox's, laments that a few attorneys have given all of those who fight for the disabled a bad name. The poster child is a North Miami attorney who in 2003 was sanctioned by U.S. District Judge Donald Middlebrooks for filing 13 lawsuits on behalf of a man he claimed was a quadriplegic who later walked in to give his deposition in one of the cases.

Not only was the man not disabled, he "did not know what a quadriplegic was, and when the term was explained to him, he was repulsed by the thought of being so incapacitated," Middlebrooks wrote in a blistering 18-page order sanctioning attorney Lawrence Fuller.

He ordered Fuller to pay Speedway Superamerica the $43,323 it had spent defending two gas stations in Port St. Lucie and one in Palm Beach Gardens against his claims. He was also ordered to pay for a special master to spend a year in his office evaluating his practice. Fuller was admonished by The Florida Bar.

Middlebrooks noted that filing ADA cases had been lucrative for Fuller. After reviewing settlement agreements in 95 of the 600 cases Fuller filed, Middlebrooks said the attorney pocketed about $5,100 per case. Multiplied by 600, that came to more than $3 million in less than five years.

Hmm, I'm of two minds here. Obviously you cannot bring a suit like this on behalf of someone who is not truly disabled, and the parties should always try to negotiate first, but what is so wrong about someone suing to bring buildings into compliance with the law?

Anyways, let's see what ole' Larry Fuller is up to. Oh, here he is -- still practicing in North Miami, still doing ADA cases. His website is here.