Magistrate Judge Torres on Miami: It Ain't New York!

Here's an interesting opinion from Magistrate Judge Torres awarding defendants attorney's fees for opposing a copyright infringement claim.

The Court weighed the discretionary factors and decided fees were appropriate, but issued this cautionary warning:

Moreover, though it is a safe bet that the parties’ counsel would have known to consult it in the course of preparation of their fee petition, for the sake of time and convenience we refer the parties to our decision in Hermosilla v. Coca-Cola Co., 2011 WL 9364952 (S.D. Fla. July 15, 2011), which will have a bearing especially on the hourly rates that the Court will approve in this case. In short, do not ask for “New York” billing rates. And for any hourly rates included in the application, biographical materials for each timekeeper should be included.

To be safe, don't even ask for "Hoboken, New Jersey" billing rates.

Stay away from the boroughs.

Get out of Philly, avoid Baltimore, head south of DC, make a brief stop at "South of the Border," now you're getting warmer.......

3d DCA Watch -- Litigation Privilege vs. Malicious Prosecution -- There Can Be Only One!

Hi kids, the heat is on and the bunker denizens are leading the way with their official 3d DCA summer pickle ball league -- judicial gentlemen (and ladies): grab your whiffle!

Are these judges cutting-edge hipsters or what?

Onward:

Wolfe v. Foreman:

Holy moly -- big $hot Marty Steinberg in our own little DCA, escorted into the lion's bunker by veteran bunkerite Lauri Waldman Ross, in an epic battle between the scope of the litigation privilege vs. a tort for malicious prosecution.

Guess who wins:

Because the Florida Supreme Court has clearly and unambiguously stated, not once, but twice, that the litigation privilege applies to all causes of actions, and specifically articulated that its rationale for applying the privilege so broadly was to permit the participants to be “free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct,” we are obligated to conclude that the act complained of here—the filing of the complaint—is protected by the litigation privilege. Thus, the trial court properly granted a judgment on the pleadings for Wolfe’s cause of action against the Miami Lawyers for malicious prosecution.

And here's Chief Judge Shepherd with a blistering special concurrence:

The only remarkable thing about this case is its existence. As the managing attorney of the Miami office of The Florida Bar explained to Mr. Wolfe (himself a licensed Florida attorney), when he refused to accept staff counsel’s initial rejection of his Bar complaint against the Kenny Nachwalter lawyers who brought the federal action, “the Florida rules governing attorney conduct . . . preclude an attorney from bringing a frivolous action. Once the attorneys learned of the true history of the litigation, they withdrew.” Rather than approbation for doing the right thing, the law firm and two of its attorneys sadly have been rewarded with a summons and complaint.

Appellate fees and costs awarded to Kenny Nachwalter btw.

See you all on the pickle ball courts!

"Economic Reality" Sets in at the 11th Circuit!

Having been disappointed by several recent 11th Circuit opinions, I am pleased to see here a straightforward application of the "economic reality" test to determine if your worker is an "independent contractor" (as you had them swear 47 times in various documents) or an actual "employee" as that phrase is normally understood:

This inquiry is not governed by the “label” put on the relationship by the parties or the contract controlling that relationship, but rather focuses on whether “the work done, in its essence, follows the usual path of an employee.”

So take this job disclaimer and shove it!

Should a Party Get Discovery Before Responding to an SJ Motion?

Greenberg Traurig says it's not really necessary; Judge Middlebrooks says it is probably a good idea:

In response, Plaintiff argues, inter alia, that the Motion is premature at this time since Plaintiff has not had the opportunity to conduct any discovery whatsoever in the case. The Court agrees with Plaintiff to the extent it argues that summary judgment should be denied as premature. At the time of the Motion, Plaintiff had no opportunity to conduct any discovery. Accordingly, Plaintiff cannot be expected to consummately respond to the factual contentions Defendants raise in their Motion. See Smith v. Florida Dep’t of Corrections, 713 F.3d 1059, 1064 (11th Cir. 2013) (“Summary judgment is premature when a party is not provided a reasonable opportunity to discover information essential to his opposition.”).

Score one for the federal rules?

Foreclosure Appeal Victory for Space Coast Homeowner

Shuster & Saben Defeats US Bank & Douglas Zahm PA in Foreclosure Appeal

In 2011, firm attorney Richard Shuster obtained the dismissal of a foreclosure case filed against a Brevard County law enforcement officer.  After the case was dismissed our firm filed a motion for attorney’s fees to recover money from U.S. Bank to reimburse as much as possible of the fees paid by the homeowner to our firm and to recover payment for the portion for our time that was spent on a pure contingency fee basis.  (Under our firm’s retainer agreement, a substantial portion of the time spent on the case is on a contingency fee basis meaning unless we win the case and recover fees from the bank we do not get paid for the time).  On January 12, 2012, a fee hearing was conducted before Brevard Circuit Judge John D. Moxley, Jr. to determine the amount of attorney’s fees US Bank would have to pay.  The case had numerous hearings after U.S. Bank’s lawyers, Douglas Zahm, P.A. had objected to almost all of the homeowner’s discovery requests, and our firm had to repeatedly go to Court to obtain orders overruling the bank’s objections and ordering the bank to provide discovery.

The time sheet filed by Douglas Zahm’s office showed they had worked approximately seventy hours by the time the bank moved for summary judgment.  Ultimately our firm worked over 100 hours on the case before we obtained a dismissal.  At the fee hearing the Court awarded 95 of the 101 ours we requested. After adding expert witness fees, costs, and interest, the attorney fee judgment against U.S. Bank came to $46,878.20.  This judgment was the largest fee judgment rendered against a bank in Brevard County in 2012.  The hours were much higher in this case because both firms fought the case very hard and “went to the mat.”

Trial & Appellate Files Stacked On Top Of Each Other

U.S. Bank brought in Lee L. Haas, a board certified business litigation attorney to handle the appeal.  Firm attorney, Richard Shuster, who handled the case at the trial level, fought on for the homeowner in the appeals Court.   While this was the firm’s first foreclosure appeal, Shuster had prior appellate experience in the First and Third District Court’s of Appeal.  The firm handled the appeal on a pure contingency fee basis, meaning the client paid no fees to our firm while the appeal was pending and the firm would only get paid if we won the appeal and appellate attorney’s fees were awarded.  During the fifteen months the appeal was pending our client paid nothing for attorney’s fees and made no mortgage payments.  The firm will now collect the original trial level fee award from the appellate bond paid by US Bank and seek additional appellate fees for writing an appellate brief that was approximately 40 pages long.  To view a redacted copy of the 5^th DCA’s Per Curium Affirmed Opinion clink here.  A Per Curium Affirmed opinion means the appellate Court unanimously found that the trial Court did not commit any errors.

About Shuster & Saben:  Shuster & Saben is a civil litigation firm with offices in Miami, Fort Lauderdale and Satellite Beach.  The firm represent consumers in insurance litigation, consumer protection matters, fair debt collection practices act, and foreclosure cases. Homeowners looking for counsel with trial and appellate experience or with foreclosure questions can reach the firm at www.attorneyforeclosuredefense.comor e-mail Richard Shuster at foreclosuredefenselaw@gmail.com 

Zimmerman Verdict Not Guilty - Raw Video

George Zimmerman Verdict Not Guilty - Raw Video

Godwhacker's Week in Rearview

A roundup of the weekly news combined with gratuitous pictures exposing the "rearview" of human anatomy for higher ratings.  

Hi Kiddies, did you miss me? I'm always here. I see you when you're sleeping. I know when you're awake. I'm somewhere between the NSA and Santa, but not as benevolent or malevolent.

So, is there some legal story dominating the news this week? Hell, I can't turn on the news. Zimmerman is like Superman, only his power is to occupy ever freaking channel all at once. This has forced me into TV news wastelands like CNBC. It's like a bad cartoon where I'm waiting for the safe to fall on the idiot's head only that, the good part, never happens. Do these people take themselves seriously? I can't imagine.

Anyhoo;

Do you ever think that Janet Napolitano is really Judge Napolitano in drag?

It was a really bad week for this guy, but how do you go from lead singer of The Smiths to being president of Egypt?

Starvation is back!

da Vinci's dream of a human powered helicopter is finally a reality.

Things are freaky at Walmart.

Gay divorce has come to Florida?

Cancer has been cured (again)!

Finally, here are some more hot backsides, and a serious note from Oliver Stone.

Lesson 1 from Master Steven: A is A and Ass is Ass. 

Now Your Condo is a Dangerous Instrumentality!

Love the handkerchief!

3d DCA Watch -- Post-Judgment Pretermitted Poppycock!

Hi there, true fact:  no matter the outside temperature or prevailing weather conditions, it is always exactly 51 degrees Fahrenheit in the bunker!

(A "no-prize" will be given to the most creative back story explaining precisely why that is the case.)

Onward:

Citizens Property v. Mango Hill:

"Appraisal awards" are not arbitration awards; also something was "pretermitted" (look it up plebes!), all according to new Chief Judge Shepherd.

Pugliese v. Regional Hosp.:

Somebody down below forgot to do something:

Prior to addressing the merits of the appeal, we note the trial court did not include in the order on appeal its rationale for granting Plaintiff’s motion for new trial. The order granting a new trial was unsupported by any fact or law as required by section 768.043 (2)(a)-(e), Florida Statutes (2013), or even the bare finding that the verdict was contrary to the manifest weight of the evidence.  Indeed, such a minimum finding must also provide a basis in the record to sustain the grant of a new trial.

So grading on a scale you would give the new trial order a C+?

Greenwald v. Eisinger:

This is a messy appeal involving legal malpractice and what the proper standards are for establishing liability as well as preserving error below.

Here's a taste:

Although the trial court sustained an objection to the two questions (the first of which was in fact answered by the witness and never stricken), the court had made no definitive ruling on the motion in limine. The fact the trial court sustained an objection to the question and denied a request for a sidebar did not obviate the need for a proffer in this case, nor did it suffice to preserve the claimed error.

Wells v. Castro:

Another arbitration boo boo by the trial judge:

Because Castro’s Prevailing Party Motion did not set forth any of the statutorily enumerated grounds to vacate an arbitration award, the trial court was required to confirm the Initial Award as modified by the Remand Order. Instead, the trial court entered its own unauthorized order finding Castro to be the prevailing party. The trial court’s action was in direct contravention of section 682.12.

One thing I always say - "never be in direct contravention of section 682.12" (that would make an excellent tattoo!).

Have a pretermittently sunny day!

Florida Criminalizes Most Internet - Web Devices

Florida Criminal Defense Attorney has been researching a new law that may make anyone with a cell phone or computer with Internet access a person possessing an illegal gambling device. Specifically, the definition of "slot machine" may now include most web devices. When a law captures innocent conduct it can be void for vagueness. The law may also violate the Equal Protection Clause.

Internet Devices
Banned

Void for Vagueness

The State Attorney in Miami Dade has now been sued and the lawsuit alleges, "The definition of “slot machine or device” now contained in Fla. Stat. § 849.16, as amended, fails to adequately describe the prohibited machine or device such that a person of common understanding cannot know what is forbidden. 

For your convenience we have highlighted the changes to the Florida Criminal Law:  The definition of a “slot machine” now includes: any machine or device or system or network of devices that is adapted for use in such a way that, upon activation, which may be achieved by, but is not limited to, the insertion of any piece of money, coin, account number, code, or other object or information,such device or system is directly or indirectly caused to operate or may be operated and if the user, whether by application of skill or by reason of any element of chance . . . .

The Florida Legislature rewrote  (Fla. Stat. § 849.094) to permit only retailers that conduct “a nationally advertised game promotion” to conduct games. The statute creates a protected class of nationally advertised game promoters. A 19 Count, Forty - page lawsuit has been filed challenging the new law. You can review the lawsuit here: http://miamiherald.typepad.com/files/internet-cafe-complaint.pdf

Equal Protection Violation

It has been alleged that, "Fla. Stat. § 849.094, as amended, accordingly violates the Plaintiff’s right to equal protection under the law because similarly situated businesses that happen to advertise game promotions nationally rather than locally are expressly permitted to employ the use of game promotions, but the Plaintiff is prevented from doing so unless it opts to advertise same nationally."

The Florida Supreme Court has just invalidated a law on loud car stereos that attempted to allow loud political speech coming from motor vehicles. A protected class of political speakers was created in the Statute, just like the new gambling statute has created a class of national advertisers. We have previously written about that case here: http://news.duifla.com/2012/12/florida-court-loud-music-legal.html

I Hate Lame Affirmative Defenses.

Don't you just love it when a two-count complaint or single counterclaim somehow engenders an answer containing 58 affirmative defenses?

I don't know about you, but my eyes glaze over as you waste time reviewing pointless and rote affirmative defenses that are clearly so general as to be meaningless or merely restate or "reserve" arguments and defenses that aren't ripe or have no applicability to the facts at hand.

Generally I ignore them and, at the appropriate time, ask the Court to ignore them as well.

But if push comes to shove it's nice to see a judge "get" it:

The Court's order denying the motion to dismiss also found that Plaintiff had sufficiently pled her claim to survive a motion to dismiss. Affirmative Defense 19 essentially argues that Plaintiff has not adequately pled her claim, despite the Court's prior ruling. Furthermore, Affirmative Defense 19 is neither an affirmative defense or a specific denial of any of Plaintiffs allegations. Lastly, because Defendant cannot amend its pleadings without leave of Court, its reservation of rights is meaningless. Accordingly, Affirmative Defense 19 is stricken.

Question -- how much did an associate bill and/or partner review to file this defense?

So a Nine Year Old Girl Got Handcuffed for Not Performing Jumping Jacks Correctly in P.E. Class -- Welcome to Alabama!

But because it's such an "obvious violation" of the child's Fourth Amendment rights the 11th Circuit reversed the district court and found that no public purpose was served and therefore no attorney's fees were appropriate for the lengthy litigation (including trial) necessary to vindicate that right:

The majority opinion emphasizes that Bostic’s handcuffing of Gray was an “obvious violation of Gray’s Fourth Amendment rights.” Id. at 18 (emphasis in original) (internal quotation marks omitted).  Because it was an “obvious violation,” says the majority opinion, Gray’s litigation could not possibly be significant, because she did not “change the law.” Id. at 18–19. By this logic, any future decision by this court that denies qualified immunity to a government actor will be deemed insignificant, because every denial of qualified immunity stems from “obvious” constitutional violations.

There's no crying in P.E. class!

Your Friday Lawyer's Orgasm!

Get ready to indulge your wildest fantasies, as long as those fantasies involve senior arcades, Dave & Buster's. and Broward attorney Michael Wolf:

“The law is a lawyer’s haven, a lawyer’s orgasm,” said Fort Lauderdale attorney Michael Wolf, who represents the senior arcades. “You’re going to see a lot more litigation before this is finished.”

Who else needs a cigarette?

Have a great weekend!

Read more here: http://www.miamiherald.com/2013/07/02/3481991/video-arcades-sue-dave-busters.html#storylink=cpy

Patriotic 3d DCA Watch -- Judge Shepherd, Michael Moore and Melanie Damian Together Again Edition!

Happy Fourth of July everybody!

In honor of the founding of our nation, the Resplendently Robed Ones have issued a special commemorative 3d DCA Watch, filled with fan favorites and fireworks -- let's get right to it:

First off, there is this:

Chief Judge Elect - Frank A. Shepherd to become Chief Judge.

On July 1, 2013, Chief Judge Elect- Frank A. Shepherd will succeed Chief Judge Linda Ann Wells of the Third District Court of Appeal for a term that will run through July 1, 2015.

Dear Time Traveler:  see what happens when you go to 1978 for the weekend?

Congrats to the new Chief Judge!

Marine Resource v. Michael Moore:

Hey, what do you know -- this case involves resident American gadfly Michael Moore!

(True, this Michael Moore is a local attorney, but a Moore's a Moore I always say!)

Omes v. Ultra Enterprises:

This case involves the Ultra Festival and Melanie Damian.

'Nuff said!

Happy holidays!

Happy July 4th!

Be safe.

Forty at Fifty in Eleven

There must be something in our water.

Forty lawyers in the Eleventh Circuit are celebrating their Fiftieth year as members of the Bar. That's incredible.

There are too many folks to list but check out page 10 of the July 1, 2013 Florida Bar News. The list reads like a Who's Who. Congratulations to all.

N.B. Please tell me I won't be doing this for another 29 years ...

11th Circuit Tackles Costa Concordia Conundrum!

Can a defendant join a bunch of separate suits together as a "mass action" and remove under CAFA?

That's what Carnival did when faced with two state court suits -- each with less than a hundred plaintiffs -- brought by Costa Concordia passengers.

Judge D said that's cute but no way, and the 11th Circuit -- in a case of first impression in our Circuit -- basically agreed:

Since we know for sure that a mass action cannot be one joined on the defendant’s motion, it follows that the proposal must originate either with the plaintiffs or, perhaps, with the state court.

You know how defendant's counsel always think they know about your complaint than you do?  This takes it to a whole other level.

Guess plaintiffs are still masters of their complaint, at least for a while.

I'm Back! (The Situation, Not So Much).

Hi kids, did June even happen?

It feels like a Dallas/Newhart fever dream, what with Guest Blogger, Godwhacker, someone named Faker SFL, someone named "Patrick Goggins" (I'm kidding!), lots of prurient content (if you're grumpy gus Scalia) -- plus a certified Time Traveler.

I wish I could say I'm fully rested and restored, but I spent a month in sybaritic pursuit of frivolous, purely hedonistic pleasures, pushing myself to and beyond all known mental and physical limits, until I literally collapsed from exhaustion, unable to imbibe through my senses or pores even one more delectable morsel of transitory joy from my decadent surroundings, leaving me drained and emptied of all energy and life force, quaking quietly and gasping for breath as I pulled myself together and somehow crawled with trembling hands and unsteady feet back into my law office.

And summer's just kicking in!

Let's start the week off with a thorough, devastating legal defeat for our good friend The Situation, courtesy of the always dapper Magistrate Judge O'Sullivan:

The undersigned finds that the plaintiffs have failed to present a triable issue of fact as to whether the defendants’ “The Fitchuation” t-shirt was likely to confuse consumers into believing that the shirt came from the plaintiff rather than A&F. Additionally, the plaintiffs did not satisfy their burden of showing that they had valid rights to “The Situation” as a trademark covering apparel at the time that A&F introduced its “The Fitchuation” t-shirt.

See, this is important legal stuff!

My informed legal opinion:  Once the Houlinator™ entered an appearance, put a stick in it, The Situation was done.

But that's why God gave us appellate courts, right?

Beware of Bait and Switch Pricing by Foreclosure Defense Lawyers!

 

In February 2010, I wrote a blog post that explained the four primary pricing methods ( hourly, flat fee, monthly and hybrid) used by foreclosure defense firms.  To read the whole blog post on this subject click here.  I have recently noticed a trend where lawyers and law firms are using marketing strategies that in my opinion are bait and switch tactics. 

If a consumer sees a sign that says SALE – Unleaded Gas - $2.00 per gallon, most consumers know that the price is to good to be true and will be looking for the catch.  Perhaps the price is only good for the first gallon of gas or is only good with purchase of an alignment job at an inflated price.  Gas stations in 2013 can’t sell gas for $2.00 a gallon because it costs the gas station more than $2.00 to buy the gas. 

Unfortunately, many consumers will not know that a the promise of a $1,000.00 or $1,500.00 flat fee foreclosure defense is just about always an offer that is to good to be true.  We are seeing consumers come to our office after either firing their old lawyer or after their old lawyer withdrew from their case.  In many cases the consumer saw advertising material and thought they would pay a one-time fee of $1,000 or $1,500.00 and would never need to spend another dime for the duration of their case.  Once the consumer actually visited the law firm they found out that the $1,000.00 was just an “initial” payment for the first thee or six months of their case.  After the initial period was over the consumer had to “re-hire” the lawyer for another six month or one year term ( it varies by firm) for an even higher fee.  

We think lawyers who advertise a flat fee price should offer true flat fee prices.  Nobody who comes to a lawyer’s office and spends an hour in a consultation thinking the costs is one number should find out when they read the fine print that over a two year engagement the price will be three or four times higher than the price they saw on the web.

At Shuster & Saben, we aspire to have a simple, clear, understandable, and predictable billing method.  The client (on loans of under $500,000.00) pays $495.00 per month for the first hour we work each month and any additional hours we work are on a pure contingency fee basis, where we do not get paid at all unless we win the case and get the fees paid as prevailing party attorney’s fees paid by the losing bank.  Our clients do not have to worry about paying a few thousand dollars to renew for six months or a year when their case is on the eve of settlement or trial and might soon we won or settled in a matter of weeks.  Our clients can predict and budget for their legal expenses.

For the likes of me, I can’t figure out how a lawyer can take a foreclosure case on for $1,500.00 and litigate the case for three years and take the case to trial all for $1,500.00.  Some flat fee lawyers cut corners with short form answers, and do not bother to conduct discovery, take depositions, or engage in trial preparation.  Perhaps other flat fee lawyers can make it work by buying $2.00 gas.

I've got the cash, I've got the ride

Morris Day & The Time - Jerk Out

Yes, there was a little extra spring in my step as I walked the dog this morning. That comes from feeling a little bit more like a whole person. If this ruling has that effect on a jaded 40-something like myself I can only imagine what it's doing for teens out there just figuring out that they love just a little different then most people. I'm betting the gay teen suicide rate is about to start going down.

It wasn't my intent to turn this into a gay rights blog this week. I was hoping for lesbian porn, but events overtook me. I actually don't like writing about gay rights. Notice I haven't posted anything on the rights of brown eyed people. I have deep brown eyes. Almond shaped. But the rights of brown eyed people aren't up for debate. They're a given. We'll get there one day with gay rights. Then I can hang up my activist's cap and retire to New England where I can support my decadent lifestyle writing trashy romance novels. That's the ticket!

But for now I wanted to let you know that SFL will be returning soon, and I want to thank everyone for their patience with me and the other guest posters and for all the kind remarks.

Belated 3d DCA Watch

Oh heck, other than denying the motion for rehearing or certification on the Citrus Canker case, nothing happened.

So Happy Friday!

Do something productive. Sit by the sea. Go for a walk. Pick weeds. Wash your car, yourself.

Faker SFL 3d DCA Apodictic Watch!

Original text in all red:

Chief Judge Elect - Frank A. Shepherd to become Chief Judge.

Love Wins!

Victory!!! I'm ecstatic and overwhelmed. I'm still trying to figure out how this affects couples like my husband and I who are legally married but live in states like Florida that don't recognize that marriage. The more narrow Prop 8 non-ruling suggests that we may now be considered married at the Federal level, yet not at the state level.

I'd be eager to hear any opinions on that.

At any rate this is an extremely important victory but there's still work to be done. I'm popping the Champagne as we speak so I'll leave you all with the words of someone who's been fighting for human rights longer than I, the unflappable Mr. George Takei. FYI George will be in Miami in early July for Supercon!

Today marks a watershed moment in history and a tremendous victory for the principle of equality. The 5-4 decision by our Supreme Court striking down DOMA affirms the universality of love--the desire of all people not only to find, but to value and affirm, a lifelong commitment to another person. I have lived nearly four score years, and have borne witness to both the heartbreak and promise of true justice and equality in America. Today my heart soars, and my faith in the promise of our great nation is renewed. Now, if there's anything we gays know how to do well, it is to celebrate! Let the joy of this day ring out with PRIDE.

UPDATE: The full text here. United States v. Windsor

Gay Day!

I can't say that I was awake all night wondering what was coming down the pipe from SCOTUS today. Good sex makes for good sleep. But after a little coffee I'm now sufficiently on edge. I began my gay rights activism over 20 years ago and I've had two primary focuses ~ the military ban on gays and the glaring marriage inequality. One down, one to go.

Whatever the court decides today, the battle for human rights is not yet over. So long as the rights of any group are diminished, all humanity suffers. While I hope for a big step forward today, I'm troubled by the step backwards that we took yesterday. I have friends who waited 8 hours to vote in the last election. Surprise, they lived in minority neighborhoods. Those who think that racism is fixed because we have a black president are as naive as are those who believe homophobia will end when LGBTQ folks have legal equality. Justice is not a light switch. It's slow and painful, and it takes generations.

Racism, sexism, homophobia and religious intolerance all stem from the same defective thinking, and even if I get mine today I wont be happy until everyone gets theirs. Given the level of injustice in the world, I guess that means on some level that I'll never be completely happy. And that's OK. At least the sex is great!

Finally!

Hey folks, I'll be here tomorrow @10 as 9 people in odd robes a thousand miles away tell my husband and I whether or not we can finally take that head of household tax deduction. Anything short of a sweeping ruling one way or the other is going to produce a lot of conflicts. Some are sure to be happy, others sure to be pissed.

I'd serve cake and cocktails but for this primitive internet.

Failure to Communicate

The Dog Days of summer are here, but no rest for the weary (except Southfllawyers.) Today the Eleventh Circuit issued Guarino v. Wyeth, LLC, Schwarz Pharma, Inc., Teva Pharmaceuticals USA, Inc. For all of you healthcare freaks practitoners, the case has a nice discussion of Preemption, The Learned Intermediary Doctrine and liability of Brand Manufacturers when a consumer ingests only a generic form of the manufacturer's drug.

Guarino sued the generic drug company and the brand manufacturer alleging negligence, strict liability, breach of warranty, misrepresentation and fraud, and negligence per se, essentially for failure to adequately warn. The Eleventh Circuit affirmed the District Court's grant of summary judgment in favor of the Brand Manufacturer because the plaintiff ingested only a generic form of the drug. The Court also affirmed the District Court's grant of the generic manufacturer's motion to dismiss based on the law of Preemption (you remember that whole Supremacy Clause thingy.)

On appeal Guarino attempted to "cloth" her argument to avoid Preemption by asserting not that the generic manufacturer's warning labels were inadequate but that it "failed to communicate" to the prescribing medical providers, the FDA's recent change in labeling requirements. I love creative lawyering as much as the next guy, but Judge Wilson would have none of it.

"No matter the garb in which she attempts to present them, Guarino’s claims are at bottom allegations regarding Teva’s failure to warn her of the dangers of long-term metoclopramide use, and they therefore [fail]."

The decision pretty much forecloses any remedy to those similarly situated as the Plaintiff here (and thus may result in fewer of those annoying late night national lawyer trolling for clients solicitation commercials.) Which is not to say the Court is without compassion for the lack of a remedy to an aggrieved person.

"We are mindful that the disposition of this case may leave Guarino and those similarly situated without a remedy in cases such as these, but as federal judges we are bound merely to interpret and apply the law as promulgated by Congress and the political divisions of government.....Thus, and insofar as Guarino seeks redress for her injuries, such redress lies with Congress or the Florida legislature, not with this Court."

Or as Strother Martin said, "I don't like it any more than you men."

Kneel Before Zod.

Can You See Me Now?

Happy Monday to you all. Where is the time travel guy? I'd like to figure out how I can scratch that "Smoke Opium with Chairman Mao" item off my bucket list.


I'm nauseous, but not from Opium, from this.




Let's forget the fact that Glenn Greenwald has broken more news this week than lapdog journalist and sometimes Karl Rove dance partner David Gregory has, EVER. Let's forget the fact that we have a 1st Amendment for the reason so that we can be warned when politicians are doing bad things, like violating the 4th Amendment. Let's also forget the fact that there is enough space between Gregory's nose and lips to land a hovercraft. I'm a student of nonviolence. Gandhi and John Lennon are my heroes. But something about this Meet the Press shill activates a part of my lizard brain that looks for the weak areas to strike.

Gregory is just one big weak spot.

Honestly, I couldn't care less about Snowden. Is he a traitor? Maybe. I have no idea what info he gave to the Chinese or the Russians. But I do know about the information he gave to us. Where are the usual suspects who will howl like mad dogs at the slightest hint of a 2nd Amendment violation and why are they willing to lay down at the complete circumvention of the 4th Amendment?

"Collect everything on everyone all the time and sort it out latter" seem to be the NSA's position here. I'm not a lawyer. I just play one on the internet (and an occasional telenovela), but how does that square even remotely with our 4th Amendment protections? There is a neat little feature in Mac OS called "Time Machine" which enables you to go back in time and find that file you accidentally tossed. It's a nice feature for a personal computer, but it seems to me the NSA wants to create one for the whole world. No communication goes unrecorded. No harsh statement erased by time.

You can call that safety. But to me the NSA is claiming radical new powers and perverting technology in a despicable way. Even worse, I now find myself on the same side of this issue as Glenn Beck and Sarah Palin.

It's not even 3:00 on Monday and I already need a shower.

Faker SFL Friday!

Sorry SFL but I'm Greek.

Happy Friday!

Godwhacker's Weak in Review

Hi kiddies, are you ready for the weekend? If you spent all your time and energy this week watching geographically based sporting events, here's what you missed.

You sort of have a right to remain silent.

You haven't arrived until you've arrived in one of these.

Slave themed weddings are still taboo.

Bad things happen to good people.

People on food stamps are living it up!

Some tattoos are weird.

Turns out Brazil isn't just one big party town.

Darrell Issa likes facts. His facts.

Thanks to James Gandolfini we know that sociopaths have feelings too. RIP and respect!

That beeping sound you hear is a Brinks truck backing up at Robert Downey Jr.'s place.

And remember these axioms; peace is better than war. Love is better than hate. It's not until your final breath that it's really too late.

The Waiting

No DOMA decision today. ARRRGGGGG!

Spencer Aronfeld Hates Bedsores!

 
Insert clever comment by SFL here.

Shoes to Die For

I hate it when parties go like this...

The story began with cocaine and Christmas shoes, and veered into beating and torture.

 LARGO — A Pinellas County jury listened Tuesday to the vivid and horrifying story of how Stacia Berman's body was found — wrapped in a blanket, plastic bags covering her head, floating in St. Petersburg's Lake Maggiore with two alligators swimming nearby.

The story began with cocaine and Christmas shoes, and veered into beating and torture. Assistant State Attorney Fred Schaub told jurors they should conclude the tale by convicting Santonio "Red" Smith and Letrell "Trell" McKnight.

It's Florida so you know alligators had to come in somewhere. More here.

My House!

[1984] Mary Jane Girls - In My House from Nemesis on Vimeo.

Hi y'all! I spoke with SFL via an enigma machine and I have bad news. His trip to the arctic has been extended. They're running low on supplies but I've arranged an emergency drop of JWB, Cohibas, and Tango music. It's good to know a Godwhacker. With luck he'll survive until next week's air lift.

In the meantime the lunatics are free to run the asylum. Much like congress, but with much less hairspray. Anyone got anything they want to talk about? I'm here for you, at least until the anesthetics take their course.

Gin Gibson Windsurfing Bo Derek Time!

Spencer Aronfeld Spencer Aronfeld Spencer Aronfeld Spencer Aronfeld Gin Gibsons sexy Israelis Hitler Alfred E. Neumann windsurfing Bo Derek bunker denizen coffee swilling Judge Schwartz Captain America Alan Kluger AMAZING!


Enjoy the break, SFL!

The Longest Day

 

Happy Friday all, and thanks for putting up with us on the B-Team this week. This was the most fun I've had since those drag queen parties at Red Square ended 13 years ago. Are you buying it? I hope not. Those parties were a blast.

In the meantime we have learned that the police can take our DNA over the slightest offense, they just can't patent it.

I told you Edward Snowden was hot. Did you know that he was once an aspiring male model?

Justice Scalia just doesn't buy all that science crap.

Are you looking for Jesus in all the wrong places?

Superman is back, but this time no suggestions of a three-way with James Marsden? Bummer.

And if your legal career isn't working out the way you hoped, how about working for Amazon?


OK folks, the vodka is on ice, the vaporizer is ready to cycle and I'm out of here like Vladamir.

Spencer Hates Decks said...

 A little gem from our comments today...

Collapsed deck at Aventura bar. Can a Spencer video be far behind?

Fade in: Collapsed deck at Shuckers: Overlap: An Ambulance, a doctor in a white coat, a person is a hospital bed with a leg cast.

Voice narration: I am Spencer Arronfeld. We all like a night out with out loved one. Dining and perhaps a drink on a terrace is a wonderful way to enjoy a warm south Florida evening. But did you know that every year hundreds of people are injured when un-safe decks and terraces of restaurants collapse, sending terrified patrons into the water or tumbling down a hill?

At Arronfeld law firm we recommend you carefully review the latest engineering report of any establishment before venturing out to any deck. If you or anyone you know have been injured due to the careless negligence of a restaurant's deck collapsing, please see a doctor immediately, and then call the lawyers at the Arronfeld firm for a free consultation.


I'd like to note that this tragedy took place in North Bay Village, not Aventura but anything north of 35st is a no man's land.

Godwhacker

The Drumhead

Star Trek was kind enough to film a preview of the coming Greenwald trail. 

Random Memorandum

COCONUT GROVE, FL - This year, I will have practiced law in South Florida for twenty years. Finally, I think I am ineligible for the Young Lawyers’ section of The Florida Bar. Here are some thoughts on my experience:

Law is the profession for someone who is both intellectually curious and fetishistically detail-oriented. The job market now is horrible, so anyone considering practicing law should probably think again. That said, there is something supremely satisfying about crafting a good legal argument. It is best to get feedback from colleagues when putting together any legal product, being willing, eager even, to accept criticism will always result in better product.

Being a member of The Florida Bar is a privilege. The collegiality among lawyers is by far one of the best aspects of the practice. It is good when you can have a pitched battle in the courtroom, step out and be friends with opposing counsel. Unfortunately, there are some lawyers who do not understand this relationship, they seem to take disputes personally. There are also lawyers who contest unimportant issues, or take positions that are simply wrong. The law provides remedies for that, but having to seek them is a waste and brings down the reputation of the profession.

Ironically, the biggest challenge in what we do is our clients. Some don’t pay. Some question your advice. Some want, as I put it, for their lawyer to become the righteous sword of their indignation. Each time a client says, “I’d rather pay you than pay him,” the answer should be, “You’re going to pay him and me, and you’re going to end up disliking us both.” The best client is one who pays on time and takes your advice.

If you have any extra, please send a few my way.

In the meantime, check out my blog Dispatches From Coconut Grove. The posts are more general interest, but there are some law-related posts. Recently, for instance, I propose adopting a single subject limitation to the Constitution.

Bush Doctor

Hi Readers (double entendre), don't you just hate it when you're on your third does of chemo for the day and the fuzz snatch your stash of medical MJ before you can use it to keep your lunch down?

That situation may sound hypothetical but one sure thing about youth and health is that neither last forever. And when we are at that point where life is a struggle, shouldn't we have access to the things that make it a little easier? America thinks so. That's why medical access to marijuana is now the law in 18 states and the District of Columbia.

If you're a fan of social media you know that barely a day goes by without an article on some new use for it. Medical marijuana has been shown useful in treating dozens of diseases and conditions. It has a safety record that would leave you civil litigators dreadfully under-employed. And unlike many of today's pharmaceutical wonder drugs which cost thousands, sometimes even hundreds of thousands of dollars, medical MJ is affordable and can even be produced directly by the end user and no to little cost.

But if you're looking for compassionate use access here in the Sunshine State you're looking for love in the wrong places. It's not a matter of public opinion. 70% of Floridians support allowing medical access to marijuana, and this support cuts across party lines and demographics.

Critics point to the lack of substantive testing and scientific method over many of these claim, which is kind of funny considering experts like Professor David Nutt call the prohibitions on testing “the worst case of scientific censorship since the Catholic Church banned the works of Copernicus and Galileo”.

“The laws scare off funders and most scientists are scared because they think if they break the law, they might get arrested,” he told The Independent. “I’m sure at some point someone’s going to arrest me. There is a sense of repression to the point that most people won’t do it.”

For a while this year it looked like we could actually make some progress in the Florida Legislature. The Cathy Jordan Medical Cannabis Act was introduced, but alas it went nowhere. It should be obvious to everyone that if we want progress on this issue we cannot depend on Florida's crusty and regressive government.

Thankfully we have a well organized and funded effort to put this issue on the 2014 ballot as a state referendum. The newly formed organization, United for Care has some real political bigwigs behind it. It also has a Godwhacker. You may see me out on your streets this summer, collecting the necessary signatures. I'll be the one on rollerblades in Daisy-Dukes.

Third DCA Report

GMT Construction v. Gulfside Supply


Summary Judgment is only proper where, after review of every inference in favor of the non-movant, no genuine issue of material fact remainzzzzzzzzzzzzzzzz....

America the Brave

"[I] find that it has always been healthy to keep in mind that everyone comes from a different background and environment," he said. "[As] much as I may disagree with their views, I respect their right to them all the same."

This is an interesting read.

Justice Kennedy acknowledged during oral argument that while the social science on gay marriage is relatively new, there is an “immediate” legal harm to those same-sex couples who cannot be married. He said the voice of thousands of children of same-sex couples is an important aspect of the case.

“They want their parents to have full recognition and legal status,” Kennedy told Charles J. Cooper, who is representing supporters of Prop 8’s ban on gay marriage. “The voice of those children is considerable in this case, don’t you think?”

And so we wait.

Russell S. Adler v. Justin Beiber !

Longtime and careful readers of The Blog know that SFL has followed Russell S. Adler (here) since that little thingy he had a few years back.

The Intreprid One reports that Adler is somehow still licensed to practice law rising like a Phoenix to take on none other than The Beib for recent contretemps (used with permission from Rumpole) involving cameras and bodyguards. The complaint is here.

"Bodyguards are supposed to serve a defensive role," Adler said. "They are not supposed to be used as a weapon against innocent photographers."

Exactly. A defensive role. Like this guy. Or this guy.

"Justin Bieber is out of control and this case is as much about stopping his course of contact through a punitive damages claim as it is about compensating my client for this horrific incident."

Hmm. Really?

But, watching the video above and seeing the little guy pop out of his limo like a weasel from a jack in the box shooting off his mouth while surrounded by bodyguards, maybe Russ' quest is noble after all. (Oh come on: who among us doesn't want to see Beiber get his ass kicked?)

Good luck, Russ! Welcome back!

Anyone know who represents The Beib?

I spy something true...

Greetings humanoids. There was a lot of good dialogue on the NSA story yesterday, both here and elsewhere so I wanted to continue. First up, here's two conflicting views from a couple of men I have great respect for.

From Senator Al Franken: (highlights)

I’m on the Judiciary committee and the Judiciary committee has jurisdiction over N.S.A. and the Patriot Act...

I have a high level of confidence, that it is used…to protect us and I know that it has been successful in preventing terrorism...

We haven’t quite hit the exact balance we want to. I have been for more transparency and I actually co-sponsored legislation to require the FISA court to release their opinions on why they’ve decided the way they have.

Senator Bernie Sanders has another take...

Kids will grow up knowing that every damn thing that they do is going to be recorded somewhere in a file, and I think that will have a very Orwellian and inhibiting impact on our lives.

I want our law enforcement people to be vigorous in going after terrorists. But I happen to believe they can do that without disregarding the constitution of the United States or the civil liberties of the American people.

I can really see both sides of this argument. I'm an honest guy and now that being gay isn't a crime there isn't all that much that anyone could ever pin on me. What would I have to be worried about? Or so I might think.

Lifted shamelessly from kottke.org

The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets. The dangers spelled out in Three Felonies a Day do not apply solely to "white collar criminals," state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance.

And worse...

We know what happened in the case of QWest before 9/11. They contacted the CEO/Chairman asking to wiretap all the customers. After he consulted with Legal, he refused. As a result, NSA canceled a bunch of unrelated billion dollar contracts that QWest was the top bidder for. And then the DoJ targeted him and prosecuted him and put him in prison for insider trading -- on the theory that he knew of anticipated income from secret programs that QWest was planning for the government, while the public didn't because it was classified and he couldn't legally tell them, and then he bought or sold QWest stock knowing those things. This CEO's name is Joseph P. Nacchio and TODAY he's still serving a trumped-up 6-year federal prison sentence today for quietly refusing an NSA demand to massively wiretap his customers.

If that wasn't enough to worry about there is another troubling aspect of this story aside from whether or not the government should be able to surveil us in this manner and that's who's doing the surveilling. By his own accounts, Edward Snowden was a low-level IT systems administrator and network engineer. This isn't Nick Fury and his specialized team of super agents. This isn't Condoleezza Rice or Susan Rice and their crack team of national security experts. In the great drive to privatize intelligence gathering after 9/11 the United States has accumulated close to 500,000 contract workers similar to Mr. Snowden, many with similar access to our personal data. Does anyone really think that's a good idea?

One more issue here, and that's the cost. Last time I checked the Senate was busy with a farm bill that cuts food stamps because, gosh darn it, deficits! So when we as a society have to prioritize our budget matters, it's imperative to look at the cost effectiveness of every program. So even if we accept the argument that terrorism is a danger worthy of sacrificing our privacy to prevent, is this the best, most cost effective way to do it?

$200,000 x 500,000 = I don't think so.



More Americans were killed this year by toddlers with guns than terrorism. Your television falling on you is a more likely cause of death than Al Qaeda. Any response should be proportional to the threat and for all the news media glam behind terrorism, it's simply not likely to happen to any of us.

Power corrupts. Absolute power corrupts absolutely.

Bunker Daze: All Hail the (New) Chief!

Save the date! July 11 at 3 pm, to witness the "Pass the Gavel" Ceremony. Refreshments will be served.

N.B.: Congratulations to Judge Wells, who served with distinction as the Third District's first female Chief Judge.

Hung Turks

Greetings all. No “big whoops” from SCOTUS today unless of course you’re Donald Rumsfeld and no longer have to worry about that pesky civil accountability problem from the people that you may or may not have ordered tortured. It was “just a little water” Poseidon said to the Titanic.

On other matters, has the NSA spied on you today? I used to think the answer to that question was no, but now it’s probably yes. I’ll be frank, I didn’t like excessive domestic surveillance under Bush and I don’t like it under Obama. But America has it’s cults of personalities and as someone who voted for the president twice, nothing has been so nausea inducing as watching Bush era dregs like Ari Fleischer and Bill Kristol circling the NSA wagons with partisan Obama supporters.

Most of the media reporting on this has been particularly terrible, with a few bright spots. Most notably Cenk Uygur of the Young Turks and the breaker of the story Glenn Greenwald. Whatever your opinion of this story you really have to admire the courage (and/or stupidity) of those who are taking on the most powerful intelligence agencies in the world out of their basic sense of right and wrong.



But enough of the politics. What Twitter really wants to know is if NSA Whistler Edward Snowden is really hot. The answer is, of course, yes! He can search my data anytime!