SFL Friday -- PACER and the Pussycat

I think everyone besides Judge Altonaga pretty much takes PACER for granted nowadays.

But there was a time -- in the dark ages, 'natch -- when you had to actually run to the Courthouse to "pull a file" and copy a pleading or motion.

Let me correct that -- you had to send some lowly associate to go to the Courthouse and do all that, but still!

(And phone messages were on little slips of paper!)

Perhaps that's why I found this article by the former chair of the Judicial Conference's Court Administration and Case Management Committee to be so interesting.

Apparently some smart people are studying how to upgrade and improve PACER:

Nearly 40 percent of PACER's revenues are generated by less than 1 percent of its active accounts, and the vast majority of the remaining PACER accounts incur less than $500 in fees per year.

What happens to the funds collected each year from PACER users? In compliance with statutory language, the money is used to pay the expenses of maintaining and improving the public access program. Moreover, all uses of electronic public access fees are approved by Congress through annual submission and approval of the judiciary's financial plan.

Certainly PACER and the services it offers can be improved. That is why we are conducting a yearlong comprehensive program assessment to identify potential enhancements to existing services and new public-access features that could be provided to PACER's varied users. User surveys will be a big part of the assessment, and this input will help shape a final report, expected by June.

Functionality is an important component of the assessment. We already know that usage of PACER's U.S. Party/Case Index application continues to grow, with more than 200,000 searches daily. The application has been running in its current format since 1999, and needs updating. Its search functionality is limited, but the judiciary is working on a new version that will provide enhanced search capabilities and result formats that can be easily imported to other programs for analysis. The new version is being tested, and it should be available to users soon.

Furthermore, we continue to explore ways to enhance already available services. A pilot program is under way to evaluate the expansion of PACER to include access to digital recordings of court proceedings in district and bankruptcy courts.

In other words -- iPACER!

(I hope no one else has thought of this).

BREAKING -- if you're interested in what Barbra Streisand thinks of Citizens United, you can find her trenchant legal analysis here.

Oy -- such a voice, but dear you're not helping.....

Let's see, it's Friday and as usual I have packed my necessary windsurfing items --- chewing gum, reading material, pulled pork -- you know, the basics.

It's always best to be prepared.

Have a great weekend!

President Obama Condemns Supreme Court Ruling!

Let me tell you what, I thought it was great the way President Obama got right up into the grill of the Supremes during his SOTU address the other night and told them exactly what they can do with their fancy new pleading standard....

And how 'bout the way Justice Alito couldn't contain himself and had to pull a judicial version of"You Lie" while the cameras were rolling....

Huh?

It wasn't about Iqbal?

You mean the President didn't even mention Twombly?

Oh well, I got excited there for a minute.

Anyway, somebody passed along this awesome chart on Iqbal prepared by the ABA's Pretrial Practice and Discovery Iqbal Task Group (yes, such a group exists) that summarizes in a concise fashion all the most important rulings that have substantively applied Iqbal among the federal circuits.

What do you have to say now, Justice Alito?

FSC TCPA -- TCOB!

I guess that business about excessive acronyms hasn't sunk in.

Today the Florida Supreme Court answers a certified question from the 11th Circuit on whether junk faxes fall within the scope of widely used commercial insurance policy language, and answers YES:

The coverage issue in this insurance dispute concerns whether, under Florida law, the sending of an unsolicited advertisement by fax, in violation of the federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C.A. § 227 (2001), is covered by a particular insurance policy provision. The Eleventh Circuit certified the following question:

DOES A COMMERCIAL LIABILITY POLICY WHICH PROVIDES COVERAGE FOR “ADVERTISING INJURY,” DEFINED AS “INJURY ARISING OUT OF . . . ORAL OR WRITTEN PUBLICATION OF MATERIAL THAT VIOLATES A PERSON‟S RIGHT OF PRIVACY,” SUCH AS THE POLICY DESCRIBED HERE, PROVIDE COVERAGE FOR DAMAGES FOR VIOLATION OF A LAW PROHIBITING USING ANY TELEPHONE FACSIMILE MACHINE TO SEND UNSOLICITED ADVERTISEMENT TO A TELEPHONE FACSIMILE MACHINE WHEN NO PRIVATE INFORMATION IS REVEALED IN THE FACSIMILE?

Penzer v. Transp. Ins. Co., 545 F.3d 1303, 1312 (11th Cir. 2008).

For the reasons that follow, we hold that, under Florida law, the language of this insurance provision provides coverage for infringements of the TCPA. Accordingly, we answer the certified question in the affirmative.

The case arises from the SD FL, where it was pending before Judge Jordan.

Judge Jordan granted summary judgment to the insurer, relying on a 1995 case from the 3d DCA.

The 11th basically reversed, but said there was an open legal issue:

Penzer appealed the Southern District‟s decision to the Eleventh Circuit, which concluded that “[n]either the policy exclusions nor Florida public policy lead to denial of coverage.”4 Penzer, 545 F.3d at 1311. However, the Eleventh Circuit also found that the disposition of this case rested on an unsettled issue of Florida law and that “[a] pure legal question of the interpretation of widely used language in commercial liability insurance is at issue.”5 Id. Accordingly, it certified its question to this Court. Id. at 1312.

The Supreme Court's opinion consists of an extensive "plain meaning" analysis, using what I think were lots of definitions googled off their smartphones.

Some of the words subject to this analysis included "publication," "material," "right of privacy," and "Bill Safire."

Not to be outdone, the defendant tried to pull out the old "doctrine of the last antecedent," which as I recall from my college days means the last guy to kill the keg has to return it.

Boy I had fun back then.

Was Buju Banton Entrapped?

bujubantonmotion

That's what our friend David O. Markus seems to be suggesting in this provocative filing made in the Buju Banton case in the MD FL.

Come and listen to a story about a man named Mark a/k/a Buju:

3. On July 26, 2009, Mr. Myrie – a well-known reggae musician, recording artist and 2010 Grammy nominee known in the music industry as “Buju Banton” – boarded a flight from Madrid, Spain to Miami, Florida. By sheer chance, bad luck, or other reason to which the defendant is unaware, the passenger occupying the seat next to him was the CS. Prior to meeting the CS on the flight, he had never spoken to, met with or even heard of the CS.

4. The CS is a paid government informant. In addition to refusing to disclose the CS’s identity, the government has refused to identify the prior cases in which he has been involved, the outcomes of those cases, the amount of money he has earned making cases for the government, or even the amount he has been paid (or expects to be paid) in this case.

5. During the long international flight to Miami, the CS, after softening up Mr. Myrie with small talk, began discussing cocaine. Throughout the flight, the CS tried to interest Mr. Myrie in buying cocaine. Mr. Myrie, however, was not interested. To Mr. Myrie’s knowledge, the CS did not record this long encounter with Mr. Myrie. The government has not disclosed any reports concerning this exculpatory encounter with the CS.

6. The CS did not give up, however. After all, his livelihood depended on it. Accordingly, over the course of the next five (5) months, the CS repeatedly called Mr. Myrie in repeated attempts to convince him to participate in a cocaine conspiracy with him. Some but not all of the CS’s attempts to ensnare Mr. Myrie were tape recorded. The ones that were recorded have been disclosed in discovery but have not been transcribed. However, counsel has listened to them, and the tapes repeatedly show Mr. Myrie’s attempts to put off the CS.

It goes on from there, but you get the picture.

Last time I was offered coke on a plane it was on Elvis' private jet and we were heading to his favorite fried peanut butter and banana sandwich shop.

But that was the 70s, and things were a little different back then (I mean in terms of our understanding of nutritionally sound and healthy dietary habits).

Kim Rothstein Speaks!

Via Bob Norman.

And her interview yesterday with WSVN is here.

Meanwhile, Kim's attorney Scott Saidel has a plan to be paid:

Though the U.S. government has seized assets from her husband worth untold millions, she still has access to some funds. One of her attorneys, Scott Saidel, said he's not being paid but expects he will be when the dust settles and marital assets that the couple obtained before the Ponzi scheme began are returned. Saidel said federal authorities are giving Kim Rothstein access to money to pay mortgages and bills, because she's helping "maximize'' her husband's real estate assets by collecting rents and putting the money in a trust fund. The government has slapped liens on the properties, but for now they are still technically owned by Rothstein.

"She's got very, very limited resources,'' Saidel said.

"Before the Ponzi scheme began"?

Does this make sense?

3d DCA Watch -- A Canker On Both Your Houses (Miami-Dade and Broward)

I know I know, everyone wants to talk Scott and Kim Rothstein, but there are plenty of other places to get your fix.

Yes, Scott pled guilty and his plea agreement is here.

Yes, Kimmie stood by his side and made a statement outside the Courthouse.

Yes, her "bodyguard" got pushed around and thrown to the ground afterwards by a pencil-neck reporter with a notepad.

Just another day here in sunny South Florida.

But alas life goes on, and indeed the coffee must be obsessively swilled, the Resplendent Robes must be adorned and/or worn, the written utterances must be released, and the bunker must be -- you guessed it -- heavily-fortified.

In today's 3d DCA Watch, we catch up with Miami native Bobby Gilbert, who has been battling the state over its over-the-top citrus canker eradication program for about 37 years, or before most of you were born.

Back then in South Florida -- you know, the good ole' days -- there used to be citrus trees everywhere, in every yard and neighborhood, and you could marinate pork in fresh-picked sour oranges, eat fresh grapefruit as you walked down the block on your way home from school, and help Aunt Bee bake her delicious key lime pie, or something like that.

Now we just have air potatoes and Starbucks.

Anyway, even though there was a full-on trial and an appeal is pending before the 4th DCA, Wes Parsons of Adorno has been defending the State (and merrily billing taxpayers all the way) -- by trying to proceed with the Miami-Dade action even though there seems evident benefit in waiting to see what the 4th does first.

Back in 2008 Wes explained his logic to the DBR:

“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.”

Query whether that logic still holds up (assuming it ever did) many many taxpayer-funded billable hours later.

Well today the 3d has ruled on Wes' interlocutory appeal of the stay Judge David Miller entered pending disposition of the 4th DCA appeal.

Guess what -- Judge Shepherd upheld the stay:

In this case, the Florida Department of Agriculture and Consumer Services seeks review of a non-final order granting a stay of an individually filed inverse condemnation action, for the destruction of citrus canker exposed trees, pending a decision of the Fourth District Court of Appeal in a related class action on which it appears the briefing recently has been completed. The Department characterizes the order under review as “in the nature of an injunction” and therefore seeks to invoke the jurisdiction of this Court under section 9.130(a)(3)(B) of the Florida Rules of Appellate Procedure. We treat the appeal as a petition for certiorari but deny the relief sought.

Sheesh, first Garvin and now Judge Shepherd -- we really are living in strange times.

We now return you to your regularly scheduled Scott Rothstein yank fest.

"Work Shall Set You Free"

Today is International Holocaust Remembrance Day.

Watch the new Yad Vashem exhibition on Auschwitz here.

Ten Months and Two Weeks Later ... Still Perfect in Naples

In early March 2009 an upside down Naples homeowner contacted our law firm in search of litigator willing to take on lenders like Fifth Third Bank and Deuthsche Bank in Collier County. The homeowner was close friends with a prominent Naples real estate investor who had hired one or two local lawyers to defend foreclosures with mixed results. It was the perception of the homeowner and his investor friend that some lawyers who dabble in foreclosure do not fight the cases but merely move for an extension of time. The investor perception was that in the past he paid for “foreclosure defense” but what he received was merely “foreclosure delay.”

When I heard the homeowners plight, I advised him that for one case it might not be practical for our firm to take cases in Naples but if there were others we would consider it. I always enjoyed going to Naples to visit my wife’s relatives and taking foreclosure cases in Naples would be another excuse to visit Michelbob’s Ribs. On March 11, 2009, I met with the upside down homeowner, his friend the real estate investor, a local realtor, and local mortgage broker and another distressed homeowner. By the end of the day, we had committed to defend five cases, with total mortgages of 2.7 Million dollars (two of the properties had loan balances in excess of $700,000). Since this trip we been blessed with additional referrals from the original Naples clients.

In my first interview with a prospective Naples client the client had many frank questions. “Why should I hire a law firm with offices in Miami and West Broward to litigate a case in Collier County?” she asked. I explained that for our firm to litigate in Naples is not an impediment as the lenders' lawyers usually have to travel from Tampa or Fort Lauderdale. While I could not comment as to the quality of the representation she would receive from local counsel, I let her know that the representation we would provide would be through and effective and that we would keep her in the loop by scanning and E-mailing her the copies of the pleadings we filed on her behalf. Further, she would not see knee-jerk motions for extension of time. Our way of doing things would be to sit down, assess her situation, and develop a strategy with her to achieve her objectives based on her financial position and the strengths and weaknesses of her case.

After ten and half months none of our Naples clients have lost their home to foreclosure. One of the clients (the one who asked all the questions) had a successful no-recourse short sale. The rest of the clients are still living in their homes. Our firm has since grown from two offices (Miami and Plantation / West Broward) to three offices when the firm opened its third office in Melbourne. Hopefully the firm will be able to add a full time office in Southwest Florida later this year. For More Information about Shuster & Saben please visit our website www.attorneyforeclosuredefense.com.

DC Circuit Not A OK W/ Acronyms

Just got this smart note from the DC Circuit:

UNITED STATES COURT OF APPEALS
District of Columbia Circuit

*****************************************************
NOTICE
*****************************************************

The D.C. Circuit Rules permit the use of abbreviations, including acronyms, in briefs, provided the brief contains a glossary defining the abbreviations, other than those that are part of common usage. D.C. Cir. Rule 28(a)(3). To enhance the clarity of the brief, the court strongly urges parties to limit the use of acronyms. While acronyms may be used for entities and statutes with widely recognized initials, such as FERC and FOIA, parties should avoid using acronyms that are not widely known.


MARK J. LANGER, Clerk of Court
E. Barrett Prettyman U.S. Courthouse
333 Constitution Avenue, N.W.
Washington, D.C. 20001-2866
Telephone (202) 216-7000

I totally agree with this ("TAWT").

Nothing clutters a brief up more than excessive definitions and acronyms, especially for parties or entities that don't otherwise use the shortened definition regularly.

Ervin Gonzalez Withdraws From Bar Presidency Race!

That's too bad, but drywall drywall drywall:

Friends: A trial date has been set for the Chinese Drywall litigation. I find that my clients' current needs are overwhelming and that I must focus on their needs rather than my goal to become President-Elect of The Florida Bar. This is why I have withdrawn as a candidate. I believe that as professionals our duty requires us to protect our clients' interests first and foremost. Thank you for all of your support.

Clients' current needs? Professional duty?

I told you this guy is old-school.

Actually, that's a bummer but we totally understand.

For old times' sake, let's take another look at Ervin's announcement video and what could have been.....

Propaganda All Is Phony

I'm in a pissy mood this morning.

I guess what bothers me the most is that today I actually agree with Glenn Garvin.

Blind pig etc.

Did you see this great Julie Kay article on all the money lawyers will be making out of the Rothstein mess?

I think Judge Stettin and the bankruptcy lawyers will make out, but I have my doubts on the investor suits.

Once you tap out TD Bank, what's left?

Speaking of economic booms, tomorrow our shiny new courthouse will be hosting oral argument before the MDL Panel, which coordinates multi-district litigation in all federal courts.

(The JPMDL docket for tomorrow is here.)

That means dozens of the nation's top lawyers will be flying in from all over the country, billing every step of the way, and spending the client's money today and tomorrow in fancy restaurants and hotels and -- of course -- strip clubs.

Then, tomorrow morning, these same bleary-eyed attorneys will have approximately 45 seconds to make a pitch for their favored city -- great airports, great judges, great proximity to [pick from column A] -- to the Panel, which has already decided where to park the litigation anyways.

So basically it's a lot of fun and you don't want to miss it.

Middle District US Attorney Fight Goes Public

Does anyone care at all about the Middle District?

I guess so, since sometimes we have to go up there and litigate cases and all.

So I suppose you heard about the fight over the potential MD FL US Attorney selection:

The accusations against one include an extramarital affair with a subordinate, helping a terrorist organization raise money and compromising important public corruption investigations.

What's the big deal?

I've done at least one of those....maybe two depending on the precise definition of "subordinate."

The other is accused of conducting vindictive investigations and abusing his prosecutorial powers. The charges have been made in letters and court documents filed over the past six months.

That's it? I was expecting something serious.

The nominees are Harry Shorstein, a former state attorney from Jacksonville, and Assistant U.S. Attorneys Robert E. O'Neill, of Tampa and Roger Bernard Handberg III, of Orlando. They were selected from a field of 11 applicants last year.

Ok, I don't recognize any of these names but that's not surprising since I wasn't even sure Jacksonville was technically within Florida, let alone the Middle District.

Reunited!

And it feels so good:

With over 24 years of intellectual property and commercial litigation experience, Janet T. Munn has joined the partner ranks at the Coral Gables-based law firm Rasco, Klock, Reininger, Perez, Esquenazi, Vigil & Nieto. Her expertise includes: class action defense, intellectual property, mass tort and products liability defense, media law, and domestic and international arbitration

"We are very excited to have Janet as one of our partners. She tops off a uniquely qualified bench of six senior litigators, with over 170 years of practice experience at our clients' disposal in a diverse are of specialties," said Managing Partner, Ramon Rasco.

"This is a great way to start the new decade," stated Munn. "Joining Ramon and Joe, along with a great team of litigators headed by Steve Reininger, Al Perez, Gabe Nieto, as well as Jack Shawde, creates a resource pool that is unique in our market. Add to that a team of banking, corporate, real estate, and tax lawyers with sophisticated experience in domestic and international transactions, gives me the ability to serve my clients with a talent pool that rivals a 100 person firm. You can clearly see why I wanted to be here."

Steve Reininger, the firm's other co-founder and litigation practice head, added: "The addition of Janet is a strong plus for our litigation practice. Janet joins us at a time when her areas of expertise will be a very important asset for the firm."

Munn comes to the firm by way of Steel Hector & Davis, LLP, where she spent over 19 years and headed the Intellectual Property and Media Law Groups.

Joe Klock, past firm and international practice chair of Steel Hector, commented: "Janet is one of the most highly-regarded lawyers in her field, with an unblemished reputation as a world class federal and state court litigator. I am thrilled that she has chosen to join us." Gabe Nieto, another Steel Hector alumnus, added: "It will be great to again be under the same roof with Janet. Her energy and intellectual capacity was a great asset to our team while we were at Steel Hector, and we are very happy to have her back."

Come on, I think there's room for one more name on the header at RKRPEV&N.

Either way, congrats kids!

Is HAMP one big Scam?

Yesterday, CNN published an article about Home Affordable Modification Program otherwise know as HAMP and the Obama Plan Modification. The article is titled “450,000 At Risk In Foreclosure-Prevention Program.” If you have not read the article here is a link to the story. I was suspicious of the banks participating in HAMP before the article was published. Too many times I our law firm has heard from homeowners who had stopped making mortgage payments and were contacted by their lenders about a HAMP modification. The homeowners were promised that is they made three (3) trial payments they would be approved for a HAMP loan modification that would reduce their mortgage payments. The homeowner would be told that if they made the three trial payments and submitted the requested paperwork (usually pay stubs and tax returns) they would receive a loan modification, the amount of which would be determined during the 90 day trial period. Many of the homeowners contacting our firm for help made the three trial payments only to be told that they did not qualify for a modification or that their documentation was incomplete.

After reading CNN’s article, I am beginning to feel that HAMP is just a scam perpetrated by lenders against homeowners. The statistics reported by CNN show that less than 10% of the homeowners who have participated in HAMP received a permanent modification. Specifically, CNN reports that while 787,200 homeowners are in trial modifications but only 66,500 people have received permanent adjustments.

A bank-loving lobbyist might speculate that the reason for so few modifications is a failure by the homeowners to make their three trial payments on time. Such speculation would be WRONG as the Treasury Department confirmed to CNN that three-quarters of the homeowners in trial modifications are making their three trial payments on time.

My suggestion for Florida homeowners that are not in foreclosure and are considering a HAMP modification is get everything in writing. If a homeowner who has not paid their mortgage in several months is called about HAMP, the homeowner should request written confirmation that if they make three timely trial payments they will receive a permanent modification. The amount of the permanent modification should also be provided before the first payment is made. After the first payment is made and the documents are submitted, the homeowner should call to confirm receipt of the documents and confirm that no additional documents are needed. If a bank representative orally confirms that no additional documents are needed such confirmation should be reduced to writing in the form of an E-mail or letter to bank confirming the conversation. By confirming that the lender or servicer does not need any additional documents the homeowner takes away the lender’s ability to call after receiving 3 payments and only to tell the homeowner that they must start over because one form was incomplete or missing a signature or comma.

For homeowners who already in foreclosure any loan modification should occur as part of a written settlement agreement reviewed by the homeowner’s legal counsel. Before the homeowner pays one thin dime, the homeowner must know what performance on their part will result in the dismissal of the bank’s case and the amount of interest rate and loan balance reduction they will receive in return for their resumption of monthly mortgage payments.

Homeowners who made three HAMP payments and did not receive a permanent modification should consult a licensed attorney to evaluate if the homeowner has a claim for either fraudulent inducement or breach of contract. Our firm is litigating against Litton and Bank of America for breaching a loan modification agreement. Homeowners with further questions about this issue my inquire by e-mail to foreclosuredefenselaw@gmail.com

SFL Friday -- White Men Can't Think Either.

Well it's been a rough week and I'm starting to ease my way out of the office to catch a few waves.

I know a lot of you weekend warriors fashion yourselves to be "good" basketball players, so you may be interested in this new and exciting B-Ball league.

There's only one catch:

"Only players that are natural born United States citizens with both parents of Caucasian race are eligible to play in the league," the statement said.

Oy.

But I'm sure there's a very fine reason to return us to the 1950s, before basketball was integrated and the world was just like Pleasantville only better:

AABA's Lewis describes his project as "a league for white players to play fundamental basketball, which they like ... instead of 'streetball' played by 'people of color.'"

Just who is the target audience for this -- elderly racists?

It's not clear, but why do I think members of the Tribe aren't going to make the roster either?

(Must be the old random circumcision check -- also popular in the 50s.)

Now that I think of it, they're probably not too keen on Catholics either.

BTW, my friend Alan Fein thinks this guy is meshugga:

"It strikes me as discriminatory on its face without any real justification," says Alan Fein, a Miami-based sports-law and First Amendment attorney who serves as outside counsel to the Miami Heat. "You can base membership on some sort of objective standard, like height or vertical ability, but I don't think this league would stand up, if challenged."

Alan's trying to be polite, but I won't -- you sir are an idiot.

Wow, now I really want get out of here.

Before I do, I need to bone up on my legal defense strategies, try not to make people angry, and -- big surprise -- John Mayer is still a jerk.

Remember, there are lots and lots of volunteer opportunities this weekend and for once George W. Bush is right -- send money.

Have a great weekend!

Paging George L. Metcalfe!!

Hoo-boy, fresh from testifying as a character witness for Hank Adorno, Herald outside counsel Sand "Sandy" Bohrer takes to the Herald editorial page to shoot a Cheney-sized load of buckshot straight into the handsome-but-not-in-that-kind-of-way kisser of none other than our own George L. Metcalfe:

For almost 200 years of our history in many states, marriage was not simply restricted to a man and a woman, but had to be racially pure. If you were white, your spouse had to be white; if you were ``colored,'' your spouse had to be ``colored.'' It became complicated, as who is ``white'' and who is ``colored'' was not so clear, given the number of people whose parents were not racially ``pure.''

Seemingly intelligent people confidently justified these prohibitions, claiming (1) the regulation of marriage is exclusively within the power of the states, and thus immune from attack under the U.S. Constitution, (2) the framers, those white men of the 18th century, several of them slaveholders, never intended for there to be interracial marriage, and (3) it was psychologically and sociologically inappropriate.

Lawyers for Virginia, asking the Supreme Court in 1967 to uphold its prohibition against interracial marriage, pointed to ``scientific opinions'' supporting the ``desirability of preventing such alliances, from the physical, biological, genetic, anthropological, cultural, psychological and sociological point of view.'' They left out religious, but the Virginia trial judge did not: ``Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.'' And: ``The fact that he separated the races shows that he did not intend for the races to mix.''

The children, it was feared, would be harmed by all these problems, and by reason of being ``mixed race'' children. How could we inflict such a fate on our children? Certainly they could never succeed in life, such as by becoming president.

The Supreme Court made short work of Virginia's statutes.

Now we debate not interracial marriage, but gay marriage and gay adoption. And we hear the same ``reasons'' we heard before.

Hmm, so you're suggesting those who oppose gay adoption are like those who opposed interracial marriage?

Sandy, are you aware of certain direct quotes from God or the numerous laws prohibiting garments made of mixed animal materials?

I thought not -- I rest my case.

Gee, I wonder if anyone will write a letter about this.

Don't Sell Kimmie's Photos!

Kim Mi Emotion

So everyone is talking about the Scott Rothstein auction tomorrow, which we've previously covered here.

Yawn.

Is it just me, or does most of it look like low-rent Fort Lauderdale office crap?

But in swoops Hinshaw's Michael Seese, determined to preserve the honor of Kim Rothstein, or at least the sale of her photographs:

In an effort to facilitate SWR's request, SWR is now only requesting that any photograph including his wife, Kimberly, be excluded from the Sale, in addition to those items the Trustee has already agreed to exclude (collectively, the "Excluded Items"). There is no way of providing a receipt or other evidence of title in support of photographs including SWR and his wife.

Well, why not?

I always keep receipts of my photos, especially those of my wife.

You know, I'm starting to think this guy Rothstein may not have been a very careful attorney.

The hearing is scheduled for 10 a.m. this morning.

Judge Moreno Spanks Lawyer For Missing Deadlines

Order Denying Extension

Hey, what's the big deal, it was just a deadline to file a notice of appeal?

Let's see, first you lose the case.

Then you get hit with an order granting defendant $550k in attorney's fees plus another $80k in costs.

Then you blow the deadline to file the appeal.

Then you explain to Judge Moreno that you were really really busy, also on vacation, and your secretary miscalendared the appeal deadline anyways:

Attorney Matthew S. Gibbs set up his ECF account with the United States District Court for the Southern District of Florida with a copy of all filings to be forwarded to his paralegal, Susan Cavallone, for calendaring purposes.1 (See Declaration of Matthew S. Gibbs) Mr. Gibbs was out of the office between November 19 and 30, 2009 for two out of town court proceedings and a family vacation in Florida. (See Declaration of Matthew S. Gibbs) Due to an error by Ms. Cavallone, the deadline for filing the Notice of Appeal was miscalendared. (See Declaration of Susan Cavallone)

Mr. Gibbs realized the Notice had not been filed the afternoon of December 23 and immediately contacted opposing counsel regarding the missed deadline. Based on the Final Judgment issued on November 19, 2009, ECF Administrative Rule 3K(2), and FRAP 26(b)(2), the Notice of Appeal was due to be filed on or about December 21, 2009.

At this point Matthew is probably employing a few of the expletives recently laid out by Judge Marcus.

What do you think -- will Judge Moreno find this to be "excusable neglect"?

Don't let the door hit you....

Plaintiff's explanation that he was out of town for court proceedings and on a family vacation (Pl. Mot. 3) is not "excusable neglect."

Lastly, Plaintiff's cumulative effect of missing deadlines exhibits an absence of good faith. Plaintiff's practice of routinely missing deadlines throughout the litigation betrays Plaintiff's consistent disregard for these proceedings. Indeed, Plaintiff's habitual pattern and practice of missing deadlines throughout the three year long litigation is evidence of a lack of good faith.

I've never understood why lawyers wait until the final permissible day to take an action they know they will take a month or more earlier, yet it is almost always routinely done with no real consideration of whether waiting makes any sense or not.

Well, Matthew, at least now you have another order to appeal.

(Best to double check the calculation just to be safe.)

Talk About A Hostile Work Environment!

The 11th Circuit wades into Carlin's seven dirty words and more in this hostile work environment opinion out of the ND AL.

Oy it's way too rich for a family legal blog but I'll let Judge Marcus explain it:

We recite the profane language that allegedly permeated this workplace exactly as it was spoken in order to present and properly examine the social context in which it arose. We do not explicate this vulgar language lightly, but only because its full consideration is essential to measure whether these words and this conduct could be read as having created “an environment that a reasonable person would find hostile or abusive.” Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).

That's probably the only quotable part of the opinion.

Congrats btw to new 11th Circuit Judge Beverly Baldwin Martin, former US Attorney for the Middle District of Georgia, who was confirmed yesterday 97-0 -- just like the health care bill.

3d DCA Watch -- Shepherd Salter and Schwartz Power Trio Edition

Remember when rock stars for no apparent reason used to form "supergroups"?

It was kind of like the Avengers or Marvel Team-Up, but with more drugs and less spandex (actually, I take that last part back).

My personal favorite was when Jeff Beck joined up with a few other then mildly-famous guys to create a sludge rock fest known -- creatively -- as Beck Bogert and Appice LLP.

The group went nowhere, but a few die-hards still (mis)remember and contend they were unfairly overlooked.

Well today, freshly swilled and straight from the bunker, comes a Judicial Supergroup to beat all supergroups -- SHEPHERD SALTER & SCHWARTZ!!

Yes, coming on tour to a concrete container of justice near you, and laying their heavy power trio groove down on an innocent little sj entered by Judge Wilson in Ortega v. Engineering Systems:

Let me ask something -- is there someone still on the planet who does not know that in analyzing a summary judgment you have to view the facts in the light most favorable to the non-movant?

Judge Shepherd apparently thinks there is, which is why he keeps reminding us:

A brief summary of the facts of this case, set forth in the light most favorable to the non-movant, as the law requires at this stage of the proceeding, is necessary to explain our decision.

Got it, Your Honor.

Ok, moving on...

What?

Why yes of course, Your Honor, please continue:

We underscore that in reaching our decision on review of an order granting summary judgment, we are required to review the record de novo and construe all facts in a fashion most favorable to the non-movant.

Yes Judge, of course, exactly Your Honor -- consider it underscored!

(Boy, this Judge must think I'm some kind of dumb schmuck....)

Clone Wars!

I love a good clone movie.

Let's see, just off the top of my head you have Bladerunner of course, Boys from Brazil, recently we've had The Governator in The 6th Day and the lovely Jordan Two Delta a/ka Scarlett Johansson in the otherwise execrable The Island.

Would Multiplicity qualify?

Sheesh, I'm sure I'm missing a few.

Anyways, now you can add West Palm Beach uber-PI lawyers Gordon & Doner:

Perhaps it was their glowing tans. Or maybe it was their clean, straight teeth.

Whatever the reason, there was something about the attorneys at Gordon & Doner in Palm Beach Gardens that prompted a Web site to appropriate their likenesses for a law firm purporting to be in England.

Among those who had their likenesses lifted was Adam Doner, whose picture was featured on the mysterious www.maslinassociates.com, the Web site for a Maslin & Associates of Lancashire — and a site that hasn't been available since last week. There, Doner was portrayed as Evans Maslin, the firm's "principal officer."

"Is that unbelievable? They literally hijacked our Web site," Doner said in an interview last week. "This is really off the charts."

It's also pretty weird. Other Gordon & Doner lawyers pictured on the impostor Web site were Daniel Williams (renamed Robert Williams), Richard Rubino (renamed Richard Weston) and Dante Alexander Weston (renamed Alexander Werner).

Not featured, however, was the "face" of Gordon & Doner, Robert Gordon, who regularly appears on television ads, urging injured viewers to contact the firm for legal help. (The law firm's Web site is the appropriately named www.fortheinjured.com .)

All that exposure, Doner said, and Gordon's face was nowhere to be found. "We laugh about it," Doner said.

After they stopped laughing they filed a suit about it, which is now pending before Judge Marra.

No offense guys and you're all perfectly handsome and worthy of replication, but I'll stick with a cloned Scarlett Johansson if that's ok.

Hot Tea on Tea Party Action!

SFTP v Tea Party

You know, at least to me, they were much more interesting when they were "tea baggers."

Still, I suppose since it was just filed in the SD FL we should take a look at the complaint, which concerns the soon-to-be-doomed Tea Party movement:

A group of Florida Tea Partiers has filed suit against the team of conservative activists that registered the Tea Party of Florida (TPOF) as an official state party, alleging that their rivals "fully intend to 'hijack' the phrase 'Tea Party' for their political will and objectives."

In the lawsuit, filed moments ago in federal court in Florida, the Tea Partiers seek to push back against a bid by Orlando lawyer Fred O'Neal, and his close ally, GOP political consultant Doug Guetzloe, to claim rights to the Tea Party name.

In doing so, the Florida Tea Partiers become just the latest to sound the alarm about what they see as the increasing co-optation of a grassroots movement by political insiders. "We have a very successful movement, similar to the Civil Rights movement, or women's suffrage. And we have a political entity that's trying to take advantage of that," one of the plaintiffs, Everett Wilkinson, told TPMmuckraker in an interview. "They're trying to take that success and momentum and hijack it for their own political and/or personal needs."

Nothing coming up on PACER, so I don't know the judge assignment yet.

The suit was filed by Frank Herrera, now at Quintairos, Prieto in the Datran Center.

Before that Frank used to be at a quiet little firm you may have heard about in Fort Lauderdale, oh what's the name again?

Man, I gotta cut back on those Gibsons.....

One More New Year's Resolution.

Hi folks, I hope everyone gave something back yesterday and did a mitzvah of some kind for somebody else.

I'm going to work on one of my New Year's resolutions and go at least a day (part of a day?) and try to only write positive things, like how this Time Magazine story on Scott Rothstein really makes us all look credible as a legal community:

Scott Rothstein is your typical South Florida wannabe. Obnoxiously flamboyant by most accounts, the Bronx-born Fort Lauderdale attorney had to have the flashiest Rolexes (so he bought a local boutique watch shop), the most houses (luxury mansions and condos from Manhattan to Morocco), the hottest cars (Rolls-Royce, Lamborghini) and the coolest yacht (an 87-footer). He had to leave the heftiest tips, usually at the upscale restaurants he co-owned, and schmooze the most powerful politicians — like Florida Governor Charlie Crist, for whom Rothstein bought a $52,000 cake, as a contribution to the state's Republican Party, on Crist's 52nd birthday in 2008.

Good thing there are no other lawyers in town who act like that.

Congrats to attorney 266, otherwise known as Christine Nestor, a new partner at Ruden McClosky and resident in their Fort Lauderdale office.

I understand Christine has vowed to personally clean up the shenanigans in her fair city, though given the scope she could probably use a little help.

Either way we're very happy she made partner.

Other than that, it feels a little dead this morning -- anything else going on?

Leighton v. Leesfield Amended Complaint

Leighton Amended Complaint

Hi folks, it's a rainy Sunday and I just made a hot cortado, lit my cigar (Cohiba of course, former Judge Doyle) and sat down for a little light reading.

For me that means the Leighton Amended Complaint, which has the usual alleged tales of partnership interaction -- secret keystroke spying technology, locking your partner out of the office for two days, lack of access to finances, exorbitant alleged personal spending, funding of Hillary Clinton's campaign, dictatorial and belligerent screaming, "You work for me"......

It's really a bedtime story, or maybe a Heinrich Hoffman fairy tale.

The Tew Cardenas Rumors Are True.

Several of you have been speculating about this for a while, and it's true -- five Tew Cardenas partners, including recent New York wine purchaser Tom Lehman, have announced the formation of their new firm:

Managing partner Thomas Lehman and partners Stuart I. Grossman, David Levine, Lawrence Kellogg and Jeffrey Schneider anticipate opening their own firm by the end of the month to be called Levine Kellogg Lehman Schneider & Grossman.

Hmm, name's a little long, how about LKLS&G?

Still doesn't exactly roll off the tongue but it'll work.

Congrats boys!

SFL Friday -- Where Is The Harmony, Sweet Harmony?

Ok folks, I'm reaching early afternoon burn out.

Thanks to all the tipsters, readers, snarky commenters and others who helped us (barely) get through another week.

Opposing counsel and recalcitrant judges....uhh, not so much.

I got a note that Mike Haggard is helping to sponsor a Haitian relief event tonight, details here.

Also, Andres Rivero's firm is hosting a Haiti relief fundraiser on Tuesday at 6 p.m., and that's a great idea and just one of many reasons those guys are mensches in my book.

Any other events like that coming up, send the details my way.

Peace out kiddies.

Leighton v. Leesfield, Round Two!

ORDER Denying Def Mot to Arbitrate

Anyone remember the messy legal divorce of longtime partners John Elliott Leighton and Ira Leesfield?

Well Judge Gill Freeman just entered an order denying Ira's motion to have all matters sent to arbitration.

At issue in this case is both a 1994 Employment Agreement, which has an arbitration provision, and a 2005 Shareholder Agreement, which apparently does not.

For whatever reason both appear to govern the parties' business relationship, but they are separate and distinct and not "inextricably intertwined."

Makes perfect sense, right?

Thus, Ira can't withhold the $250k apparently due to John under the Shareholder Agreement as a "set off" against what he claims are "challenged amounts" under the Employment Agreement.

Oy!

Also, while the Employment Agreement is subject to mandatory and binding arbitration (which appears to be ongoing), but the Shareholder Agreement is not, Judge Freeman decided to order concurrent non-binding arbitration of the Shareholder Agreement before the same arbitrators who are considering the Employment Agreement.

Got that?

(Folks, there's a reason why we litigators refer out our transactional work.)

Note to Steve Zack: Bring The Claude!!

Ok, the countdown is on as we get ready for Steve Zack's big speech at the DCBA lunch today.

I am sure you have heard it around the courthouse, at the restaurants, on Brickell, at various Bar events etc. -- the buzz building, the clamor rising, the growing sense of anticipation as more and more judges and lawyers stand up and demand from Steve what HE MUST NOW DELIVER TO HIS ADORING FANS:

Yes yes yes! I of course refer to The Claude:

The trick to capturing Pepper’s thick Southern accent is to puff the cheeks, according to Zack.

Oh man, don't tell us your secrets!

Just find that zone and let it roll roll roll, get those cheeks red and your face redder and bring that house down.

The lunch starts at 11:45.

I will be ready.

Judge Huck Yo Yo Yo-Plus

Yo Plus Cert

Does "probiotic" yogurt work as advertised? Should you pay more for it?

That's the question framed by this 1/11/10 class certification order by Judge Huck, which deals with Yoplait's "probiotic" yogurt, Yo-Plus.

Reading some of the advertised benefits, you would have to be a moron to think it works as claimed:

Yo-Plus, on the other hand, contains two ingredients not found in normal Yoplait yogurt; ingredientsthat, according to General Mills, “aid in promoting digestive health.” (Id. ¶¶ 5-6 (“these added ingredients . . . promote digestive health when included in a yogurt product such as YoPlus”).) In short, General Mills contends that regularly eating Yo-Plus aids in the promotion of digestive health in ways that eating normal Yoplait yogurt does not. See Mand. Decl., Ex. 1 at 3 (“Yoplait recently launched Yo-Plus, which is a yogurt with digestive benefits.”). Yo-Plus competes with Dannon’s Activia brand of probiotic yogurt (“Activia”), which also allegedly provides special digestive health benefits, and is the leader in the probiotic yogurt market. (Mand Decl. ¶ 7.)

General Mills commenced a nationwide marketing campaign to introduce Yo-Plus to the United States market in July 2007. (Id. ¶ 5.) The campaign, which endeavored to promote Yo-Plus’ “key benefit of digestive health,” (Id., Ex. 1 at 20), consisted of television commercials, print promotional materials with coupons, in-store advertising, promotions to health professionals, internet advertising, as well as the claims made on Yo-Plus packaging. (See Mand. Decl. ¶¶ 8, 35-89.) Between July 2007 and March 2009, when this case was filed, General Mills aired a series of eight different television commercials for Yo-Plus. (Id. ¶ 37.) One commercial introduces Yo-Plus as “a delicious new yogurt with special added cultures and fiber that naturally help regulate your digestion, which makes every day more positive.” (BloodDecl., Ex. 2, Plus Scale; Mand Decl., Ex. 14.) Another declares that “Yo-Plus’ unique blend of probiotic cultures plus fiber help your body regulate digestive health naturally.” (Blood Decl., Ex. 2, Direct Response Version One; Mand Decl., Ex. 19.) In addition to commercials, General Mills circulated print advertisements for Yo-Plus containing coupons. (Mand Decl. ¶ 49.) Some of these print advertisements make challenges like “[t]ry it for ten days and see how different you feel” and “[l]ove it or it’s free.” (See, e.g., Mand Decl., Exs. 38, 42.) Many of the print advertisements prominently display the word “probiotics” and “digestive” and emphasize the unique flavors, functional aspects, and good taste of Yo-Plus, and the fact that Yo-Plus contains fiber. (See, e.g. id., Ex. 39.) Additionally, the YoPlus.com website states, inter alia, that “Yo-Plus has a probiotic culture called [Bb-12] . . . clinically shown to support digestive health.” (Id., Ex. 59.) Further, Yo-Plus’ current packaging materials claim, for example, that “Yo-Plus contains special probiotic cultures and fiber to help naturally regulate your digestive health.” (Id., Ex. 6.) The inside of the original Yo-Plus packaging, which was revised in September 2008, states that one should “[e]at Yo-Plus every day to help maintain a balance of good-for-you bacteria in your digestive system and regulate digestive health.” (Id., Ex. 7; Id. ¶¶ 30-31.) The same packaging also explains that Optibalance is “a unique blend of beneficial bacteria (Bifidobacterium lactis BB-12) and a natural fiber (chicory root extract) that together help regulate digestive health” and “crowd out the unfriendly bacteria in your system and promote digestive health.” (Id., Ex. 7.)

Uh huh.

Judge Huck certified a class of Florida idiots, I mean, consumers.

This Time An "International Business Law Advisor" App!

Santiago A. Cueto doesn't just want Jason Turchin to have all the fun, so Santiago introduced his own "International Business Law Advisor" app for the iPhone:

The App is yet another way we can add exceptional value to our readers utilizing cutting edge technology. In addition to keeping our readers up to date, the App allows users to take advantage of the latest social media tools. With the App they can share each blog post with friends and colleagues through email and twitter--ensuring that everyone stays on top of breaking news and emerging trends in global business.

Alright, I suppose this can be a neat and possibly useful gizmo, but I'm starting to get a bad "flatbread feeling" over these lawyer apps already.

If someone sends me a "general civil litigation with an emphasis on business disputes" app I'm going to throw out my smart phone.

SCOTUS Bans Broadcast of Proposition 8 Trial

More or less agreeing with Ed Whelan, a divided Supreme Court upheld its temporary ban on any broadcast of the Proposition 8 trial before ND CA Judge Vaughn Walker.

You can read the opinion here and Scotusblog's roundup here.

The per curiam opinion was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito.

A very sharp dissent by Justice Breyer was joined by Justices Sotomayor, Stevens and Ginsburg.

It strikes me as a highly unusual and ideologically-driven opinion, not unlike Bush v. Gore.

Indeed, I would say this does not bode well at all for same-sex advocates if and when this case hits the Supremes on the merits.

Ted Olsen will have his hands full.

Lawyer: Majority of RRA Attorneys Not Crooks!

Ok, let me start with a few congrats -- Manny Diaz is going to join Richard Lydecker's insurance defense firm, and Marcos Jimenez is leaving Mike Nachwalter's firm to join the Miami office of Kasowitz Benson.

I'm usually leery of out-of-state big firms setting up offices in Miami, but this one has a lot of potential:

Jimenez joins former Akerman partners Lawrence D. Silverman, Scott B. Cosgrove and James G. Sammataro, and former Clarke Silverglate & Campbell partners Kelly Luther and Maria Ruiz. Silverman oversaw Akerman’s Miami litigation department and the firm’s antitrust practice group.

That's a powerhouse crew -- good luck!

Meanwhile, it turns out only 35 RRA lawyers are being investigated by the Bar:

The Florida Bar is investigating at least 35 former senior lawyers in the now-bankrupt Fort Lauderdale law firm headed by Scott Rothstein, who was disbarred before he was criminally charged last month with using the firm to run a $1.2 billion investment racket.

The Bar confirmed to The Miami Herald Wednesday that it is examining whether those members of the former firm -- Rothstein Rosenfeldt Adler -- lied about the amount of money in client trust accounts and whether they stole any of it.

According to Howard Greitzer, however, the majority of RRA attorneys did nothing illegal:

``There has been no determination of wrongdoing,'' Greitzer said. ``The majority of the lawyers that I am familiar with from RRA were hard-working, competent colleagues who did nothing illegal, inappropriate or unethical.''

I agree with Howard -- in fact, if you can get a simple majority on something like that you've got yourself a pretty good law firm.

Nice Parking Spot!

Signs/schmigns, who cares?

Jim Ferraro's SUV parked outside the Courthouse this morning.

3d DCA Watch -- CANCELLED DUE TO LACK OF ANYTHING TO WRITE ABOUT

Boy that was some Federal Bar Luncheon today, huh?

I sure hope Herman finds out exactly when the right time is to apply for judicial clerkships, I don't want him to miss out.

Also, Judge Seitz doesn't really "do" email, and Judge Altonaga managed to make a discussion of CM/ECF very interesting -- seriously.

One suggested expansion category for the drop down selection screen -- to do lists.

Nice group of clerks you both have, btw -- but Mikey you'll have to wait before you can start hiring them all.

Now, let's talk about the 3d DCA.

If I didn't know any better, I would think that maybe, just maybe some Resplendently Robed jokester was trying to make our lives difficult this week, by purposely only releasing opinions that have the word "State" in them.

Was it you, Judge Ramirez?

It's ok, you can come clean now.

Ha ha no civil orders, I get it boy do I have egg on my face.

Point made, Your Honor.

Now how about even one measly civil opinion, you know, for the good times?

Hank Adorno "Not A Class Action Lawyer."

So says Hank's lawyer Andy Berman at the ongoing sanctions hearing, as reported by the always excellent Julie Kay.

Question: then why was Hank handling a major public-interest class action?

Also, can someone explain to me the purpose of calling "character" witnesses such as Raoul Cantero and Sandy Bohrer?

Generalized evidence from other lawyers about the reputation of another lawyer seems to be totally irrelevant to determining specific questions of legal or ethical violations.

Plus it's inherently unreliable.

I mean, isn't that obvious by now?

I'm not suggesting any parity at all in this example, but imagine a year ago and the issue on the table was the "reputation" or "character" of our own major macher Scott Rothstein.

You had seventy lawyers, judges, etc. who worked for him, numerous politicians, sports stars, jewelers, businessmen, charities and others who vouched for his character, he was appointed to JNC and grievance committees etc., and you could have probably lined up 100 prominent and well-respected lawyers who would have extolled Scott's virtues to the heavens.

And this means what?

Or how about this -- a year ago Hank could have called successful and well-respected Broward litigator Scott Rothstein as a character witness.

See what I mean?

Have we learned nothing about the fragile house of cards upon which lawyers can create and sustain reputations in our sunny town?

Cold Again?

It's still cold and I'm starting to get grumpy.

Is there anything worth talking about this morning?

Let's see, Scott Rothstein will be in Court today, where he will waive waive waive to his adoring fans:

Rothstein, now disbarred from practicing law, has already said through Nurik that he thinks Nurik has no potential conflict of interest and he is willing to give up his right to appeal any conviction or sentence on those grounds.

But U.S. District Judge James Cohn scheduled the 9:30 a.m. hearing for a full airing of any concerns. Rothstein is expected to formally waive the possible conflict of interest.

"Scott will enter a waiver, and I expect that will be the end of it," Nurik said. "I have no conflicts of interest."

In other news, principled conservative and Florida AG Bill McCollum thinks Big Gov should get out of the way and let market forces set prices -- except when it comes to attorneys fees -- which of course need to be arbitrarily limited by the state:

"It's been my observation that there's been a lot of abuse around the country" by law firms that run up excessive fees working on government cases, McCollum said.

"Especially ones under my supervision," he added.

Ok, I made that last part up.

God I love the practice of law.

Judge Hoeveler Splits Hand Pulled Chow Noodle.

Chow Order

For those of you keeping track of the hot Chow on Chow action unfolding before Judge Hoeveler, you may recall there was an emergency motion filed by defendants to stop upcoming depositions set for this week in New York.

Well in a Solomonic order, Judge Hoeveler postponed them 10 days and told the parties to make nice nice and try to get along, will 'ya?

He also said if the discovery issues really really really can't get resolved he would consider another brief postponement in order to rule on that motion.

I have to hand this round to Big Lyle (Shapiro, not Waggoner).