Judge Jordan Goes Full Carnes!

We've written at length about Judge Carnes' predilection for a strong "cold opening" to his opinions, frequently drawing from history, literature, pop music, and even beloved children's stories.

Not to be outdone, Judge Jordan tries his hand with an always-in-style Abe Lincoln reference:

Following the 1860 election, President Abraham Lincoln chose a cabinet “comprised of enemies and opponents,” including three men who had been his “chief rivals for the Republican nomination,” because they “‘were the strongest men in the party’” and he “‘had no right to deprive the country of their services.’” DORIS KEARNS GOODWIN, TEAM OF RIVALS: THE POLITICAL GENIUS OF ABRAHAM LINCOLN 319 (2005). When she was elected in 2008 as superior court clerk of Lumpkin County, Georgia, Rita Harkins did not emulate President Lincoln; in her first official act as clerk, Ms. Harkins dismissed her co-worker and former political rival, Sarah Jane Underwood, whom she had defeated in the Republican primary.

Ok, not bad for a first try -- this one actually fits.

Roughly translated, I believe the Judge is saying:  "Ms. Harkins, you are no Abe Lincoln."

Your Tuesday Morning Digital Dump.

 Hi there, hope you had a restful, restorative long holiday weekend.

Let's take a quick peek at our world:

1.  The 11th Circuit (w/ Judge Jordan on board) affirms a district court approval of an ADA settlement involving Segways at Disney World:

Because the district court found that class representatives were unlikely to prevail at trial, the district court found that Disney’s agreement to produce and make available the ESVs is a beneficial remedy for the class. This finding does not constitute an abuse of discretion. If Disney prevails at trial, the class will be left with no remedy at all. This settlement precludes such a Draconian result and ensures that a stand-up mobility device is available at Disney Resorts that conforms to its unique safety requirements. Therefore, we conclude that the district court’s finding that the settlement results in a “fair, adequate, and reasonable” remedy within the range of possible recoveries is also not an abuse of discretion.

Wow -- people still use Segways?

2.  Speaking of class actions, the apocryphal story of a bank deducting a penny a month is often cited as the perfect case for class treatment, yet this one involving a local "fashionista" lawyer and Forever 21 comes pretty close:

A fashionista lawyer who returned black denim shorts to Forever 21 but received a penny less than what she paid is suing the retailer on behalf of fellow customers who "number in the thousands, spread over several states."

Carolyn Kellman, whose fashion sense was profiled in the Miami Herald in 2007, paid $14.46 for the shorts at the Forever 21 store in the Dolphin Mall on May 12, the complaint filed by Kevin Love of Criden & Love in South Miami said.

Kellman, an attorney with the Strickland Law Firm in Coral Gables, returned the shorts to the Forever 21 in the Shops@Sunset Place on May 30 but was credited $14.45, "or exactly $0.01 less," the complaint said.

On June 27, Kellman was charged $11.57 for a skirt, also black, at the Sunset Place store. She returned it July 13 and was credited $11.56, according to the complaint, which attaches copies of her receipts and alleges breach of contract, unfair and deceptive practices, and unjust enrichment.

Query -- if you shop at Forever 21 does that make you "fashionista"?

3.  Steven Lippman disbarred.

And here's a flashback from 2009 after Arthur Rice acted like a mensch, hired Lippman, and publicly rose to his defense:

Arthur Rice, a name partner in the firm, said in an e-mail Tuesday night that he had not yet read the complaint.

``Having said that I know Steve Lippman and he is a man of integrity and until we are shown competent evidence to the contrary he will remain a valued member of our firm. I and other members of our firm have considerable experience in fraud recovery work and it is our collective experience that in cases such as this things are not always what they appear to be.'' 

Is it too early for some Xanax?

Our Taj Mahal Beats Their Hawaiian Junket!

So the 9th Circuit wants to play that game:

Two senior Senate Republicans on Monday blasted plans by judges in the 9th Circuit to hold a conference in Hawaii this August that they said could run up a tab of $1 million or more, and includes a schedule of sport fishing, yoga, surfing lessons and Zumba dancing lessons.

 Pikers!

A measly million, and some yoga and surfing -- that's nothing.

Call me when you've got miles of African Sapele wood, 60 inch flat screens and Italian granite -- then you can play in our "sandbox," as the lawyers down here like to say.

I actually think the room rates are quite modest for Hawaii in the summer -- deluxe ocean rooms at the Hyatt Regency Maui for $250 a night?

(Note to Adam Rabin -- I hope you haven't booked our next Bench and Bar meeting yet!)

 Now this is what I call real networking:

DC Fiddles While the 11th Circuit Burns.

I know some of you (most of you?) braved the rain and were at Brett Barfield's spectacular FBA Federal Judicial Reception this evening at the Hyatt downtown.

(To those of you who wondered in from the the adjacent Cosmetic Surgery Convention, yes this is what South Florida judges and lawyers really look like.)

Ka-ching!

It was a great event, filled with much #humblebrag but also genuine camaraderie and good cheer -- if you missed it, it was truly your loss.  There is no better way to feel connected and part of a real community of active, involved, caring judges and lawyers than attending this event.

Judge Jordan of course was there, connecting and relating to the lawyers and judges around him.

Meanwhile, the interminable gridlock in DC that has caught up this once-in-a-lifetime bipartisan consensus nominee for the 11th Circuit drew special attention from Senator Leahy, as passed on by the always in-the-know Glenn Sugameli:

Senate Republicans continue to block even judicial nominations with home state support from Republican Senators.  Republican Senator Marco Rubio and Democratic Senator Bill Nelson of Florida both introduced  Judge Adalberto Jordan of Florida to the Judiciary Committee when we held his confirmation hearing last September for his nomination to fill a judicial emergency vacancy on the Eleventh Circuit, and both strongly support his nomination.

Judge Jordan is an experienced jurist who has served as a judge for the Southern District of Florida since 1999.  If confirmed, Judge Jordan will be the first Cuban-born judge to serve on the Eleventh Circuit, which covers Florida, Georgia and Alabama.  Born in Havana, Cuba, Judge Jordan immigrated to the United States at age six, going on to graduate summa cum laude from the University of Miami law school.  After law school, he clerked for Judge Thomas A. Clark on the Eleventh Circuit, the court to which he is now nomination, and for Justice Sandra Day O’Connor, a President Reagan appointee to the United States Supreme Court.  Judge Jordan has been a prosecutor in the Southern District of Florida, serving as Deputy Chief and then Chief of the Appellate Division.  Judge Jordan has been a professor, since 1990 teaching at his alma mater, the University of Miami School of Law, as well as the Florida International University College of Law.  It is no suprrise that the ABA’s Standing Committee on the Federal Judiciary unanimously rated Judge Jordan “well qualified” to serve on the Eleventh Circuit, the highest possible rating from its non-partisan peer review.  It is also no surprise that his nomination was reported unanimously by the Judiciary Committee nearly four months ago.  The surprise is that Senate Republicans continue to stall action on this nomination for no good reason.

Judge Jordan is the kind of consensus judicial nominee that should be welcomed as one of the many examples of President Obama reaching out to work with Republican and Democratic home state senators and the kind of superbly qualified nominee we should all encourage to serve on the distinguished bench of Federal appeals court judges.  In the past the Senate would have voted on his nomination within days or weeks of its being reported unanimously by the Judiciary Committee.  Yet Republicans refused to consent to a vote on Judge Jordan’s nomination before the end of the last session and it has been stalled on the Senate Calenadar for nearly four months.  When we finally do vote on Judge Jordan’s nomination I am certain he will be confirmed with broad bipartisan support, perhaps unanimously.  There is no good reason the Senate is not voting to confirm Judge Jordan today.

Is there any reason for Republicans to continue to hold up this confirmation?

Sug reports that finally, on Monday, February 13, 2012:

• the Senate will proceed to Executive Session to consider Calendar #437, the nomination of Adalberto Jose Jordan, of Florida, to be United States Circuit Judge for the 11^th Circuit with one hour of debate equally divided and controlled between Senators Leahy and Grassley or their designees .
• Upon the use or yielding back of time (at approximately 5:30pm), the Senate will vote on the motion to invoke cloture on the Jordan nomination

 Hallehujah!!

SFL Friday -- Really Bored Edition.

Hi kids, that was a nice event last night for the law library, wasn't it?

Not too much happening otherwise....

Jeff Feiler has a new website!

Oh man, see what I mean?

Here's a NYT editorial on the latest arbitration case before the Supremes.

Something about "secret evidence" rubs me the wrong way.

How many judicial fundraisers do I have to attend this month?

Judge Jordan voice vote -- the document.

Come on, people, help out!

Judge Jordan One Step Closer to Confirmation!

Fly, Judge, fly (with bipartisan support)!

Judge Jordan Completes Senate Testimony!

Here is the Senate Judiciary Committee agenda (there was a live webcast too).

From a well-placed source:

He finished – no hard questions- both FL senators spoke very strongly in favor and Sen. Hatch on the Committee said “I am certainly going to support you” and that the Committee is doing a good job in moving judicial nominees and “should do even better.”

  

Check Out This Cool WH Infographic!

How boring are judicial confirmations to the general public?

It's amazing to me that Democrats continue to be stuck with horrible branding on issues of tremendous importance, like "the mandate," "entitlements," or "Harry Reid."

Still, they keep trying.

In yet another effort to spiff up the exciting "judicial confirmation crisis" the WH has released the above nearly impossible to read infographic (actually, you need to click on the image or click here to expand), which sets forth in neat flow charts how disastrous the current situation is with our federal judiciary.

Here's some of the rosy news:

Unfortunately, the delays these nominees are encountering on Capitol Hill are equally unprecedented: earlier this month, the Senate left for its August recess without considering 20 eminently qualified candidates, 16 of whom had passed through the bipartisan Senate Judiciary Committee completely unopposed, a development the Washington Post called “not only frustrating but also destructive” in an editorial published yesterday.

The victims of these delays, of course, are the American citizens who are being denied the fair and timely judicial proceedings they deserve because of the chronic shortage of federal judges on the bench.  Stephen Zack, president of the American Bar Association, told Senate leaders in a recent letter that the abundance of vacant federal judgeships “create strains that will inevitably reduce the quality of our justice system and erode public confidence in the ability of the courts to vindicate constitutional rights or render fair and timely decisions.”

I know I know -- your anecdotes about how slow things seem at the federal courthouse and one time you saw a judge leave work early trump all these stupid "statistics" and "data" so problem solved.

But question -- is there any reason to delay Judge Jordan's confirmation to the 11th?  Would it be good if he didn't make it?

If the answer is no maybe we should try to help accelerate this process.

Donald Trump Is Too Busy Talking About Obama's Birth Certificate to Appear at Mediation.

I completely agree with Judge Jordan -- why should Donald Trump have to appear at a mediation when he can send a lackey his Assistant GC Alan Garten?

Question -- does "Mr. Garten" have a true live birth certificate, or just a ginned-up-in-Kenya fancy-dancy chardonnay-stained certificate of live birth?

Or maybe it's as phony as Mr. Trump's own "birth certificate"?

Let's just put it on the table -- just who is this mysterious "Mr. Garten" and why does he have Mr. Trump's "full authority"?

I'm just asking the question!

Huge Post-Trial Victory in Epic Battle of the Steves (Plus David O. Markus)!

Final Order

In a huge post-trial victory by GT's Steve Binhak over Adorno's Steve Ginsburg, Judge Jordan has overturned a jury verdict -- including an award of punitive damages -- in a condo dispute that involved misrepresentations over whether a new building ("Asia") would block an existing water view at Carbonell on Brickell Key.

Judge Jordan basically found that there was no evidence of damages, and he seems to me to be right:

At the hearing on the post-trial motions, Mr. Soltero argued that the $200,000 or $250,000 “view premium” was supported by evidence that Mr. Enriquez (the seller) told Ms. Aguila (the broker) that Unit 3608, with the view, was worth over $2 million, and that Ms. Aguila herself said it was worth $1.7 million to $1.8 million. See Transcript of Hearing [D.E. 228] at 51. That argument does not work for a number of reasons. First, Mr. Soltero cannot defend the “view premium” on what Ms. Aguila told him that Mr. Enriquez said to her about the supposed value of Unit 3608, or what Ms.Aguila herself opined. See, e.g., Bekins Van Lines v. Schaefffer, 630 So.2d
633, 634 (Fla. 4th DCA 1994) (owner of property could not testify about property’s value “based upon telephone and personal conversations with others”). Second, if Mr. Soltero is suggesting that he bought Unit 3608 for less than what it was really worth with unobstructed water views (i.e., that he paid $1.7 million when it was really worth $2 million or more, as it was represented), then the benefit of the bargain theory may not even apply. Cf. Getelman v. Levey, 481 So.2d 1236, 1239-40 (Fla. 3d DCA 1985) (the benefit of the bargain rule “is designed for a situation where a party has effected a sale of property by representing it as worth more than its actual value,” and does not apply where the buyer obtains the property representing that it is “worth less than its actual value”).

b. Mr. Soltero also relies, in part, on opinions he personally expressed at trial concerning Unit 3608’s actual value, or its value as it was represented. Those opinions, however, cannot save the verdict. First, my trial notes reflect that Mr. Soltero testified that Unit 3608 was worth $1.2 million at the time of trial (i.e., in July of 2009). Such a valuation does nothing to put an actual value on Unit 3608 at the time of the sale (i.e., in December of 2005), or to show what the value was if the representations about Asia had been true, which are the two critical numbers required under Florida law for an appropriate benefit of the bargain comparison. See, e.g., Studebaker, 19 So. at 179; Kind, 889 So.2d at 90. Second, to the extent that Mr. Soltero tried to put an actual or “as represented” value on Unit 3608 as of December of 2005, such an opinion was hopelessly speculative, as Mr. Soltero did not take into account or explain the effect on his valuation of either an overheated real estate market -- in which many were buying as speculators in the hope that prices would continue to climb -- or comparable sales on the 08 line of Carbonell around that time on his valuation.

It is true that under Florida law an owner of property, including an owner of real property, may generally express an opinion as to its value. But such an owner, like any other witness, must be shown to be competent to testify about valuation. Mere ownership, without more, is not enough. And when the valuation of a condominium apartment has to be made in the context of an unsustainable bubble market, like the one that existed in late 2005, and the alleged reduction in value is based in part on something as subjective as a less expansive water view, it was incumbent upon Mr. Soltero to explain that his opinion was something more than mere speculation.

Query -- why not put on a damages expert for the difference in value?

I'm less sure about Judge Jordan killing the puni award ("first time in 10 years on the bench") based on an improper net worth comment made by Ginsburg:

In closing argument, Mr. Soltero’s counsel told the jury that “even $10 million in punitive damages is chickenfeed to Swire, who’s invested over $800 million in Brickell Key alone.” This argument was based on evidence that Swire Pacific Holdings -- and not the Swire defendants on trial -- had invested hundreds of millions of dollars in Brickell Key. The defendants lodged a contemporaneous objection, but I mistakenly overruled the objection. Mr. Soltero’s counsel then told the jury “that’s what the law allows. Those are the punitive damages that [Mr. Soltero] is asking you to award.” As a result of this second statement, I gave the jury a curative instruction: “Let me just add one thing, ladies and gentlemen. Swire Pacific Holdings is not a party in this case. And you may not consider any assets or conduct of Swire Pacific Holdings in deciding the issues in this case, including the issue of punitive damages, if you should award them.”

After closing arguments were finished, I reminded Mr. Soltero’s counsel that I had repeatedly ruled that he could not use the assets of the related Swire entities that were not parties, admonished him for violating those rulings and for “playing games,” and said that I expressed no view on what effect, if any, that improper closing argument would have on a verdict in favor of Mr. Soltero. The response of Mr. Soltero’s counsel was that the $800 million figure came from the website of Swire Realty.

Guess you had to be there, but it sounds like the Judge got a little ticked over Ginsburg going over the line, which is fine, though the curative instruction was pretty good and probably sufficient in most circumstances.

Oh yeah -- our friend DOM (moonlighting from his successful crim practice) represented the defendant broker at trial.

Congrats all around (well, almost all around)!

Judge Jordan's Ruling Leads to Change in Hospital Visitation Rights

We analyzed Judge Jordan's ruling last year in the Langbehn/Jackson Memorial gay visitation dispute here.

While I wasn't exactly thrilled with the outcome, I found his ruling sensitive, rational, and fair given the messed up state of Florida's tort jurisprudence.

Now we see all the advocacy and publicity has paid off (depending on your point of view):

Gay rights advocates said the rules change was inspired by one of those cases involving a same-sex couple, Janice Langbehn and Lisa Pond, who were profiled in The New York Times last year. After Ms. Pond was stricken with a fatal brain aneurysm, Ms. Langbehn was denied visiting rights in 2007 by a Florida hospital. Although Ms. Langbehn had power of attorney and she and Ms. Pond were parents to four children they had adopted, the hospital refused for eight hours to allow her and the children to see Ms. Pond, her partner for 18 years. Ms. Pond died as Ms. Langbehn tried in vain to get to her side.

Ms. Langbehn, represented by Lambda Legal, a legal advocacy organization, brought suit against the hospital, Jackson Memorial in Miami, but lost. On Thursday night, Mr. Obama called her from Air Force One to say that he had been moved by her case.

“I was so humbled that he would know Lisa’s name and know our story,” Ms. Langbehn said in a telephone interview. “He apologized for how we were treated. For the last three years, that’s what I’ve been asking the hospital to do. Even now, three years later, they still refuse to apologize to the children and I for the fact that Lisa died alone.”

Glad to see that hopey-changey thing working out for ya' at least a little bit.

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.

3d DCA Watch -- "Actions Have Consequences" Edition

Well given that there were only three civil opinions released this week and one is a glorified PCA and two are United Auto cases, I thought I would do a short 3d DCA Watch and head over to the Federal Bar luncheon early to see if Judge Jordan wanted to have a quick game of pick up football in the Bankers Club lobby.

(Judge Gold, don't worry -- you can be all-time-QB!)

But then I came across this interview of Nicole Kidman discussing her marriage:

'I've explored obsession. I've explored loss and love in terms of being in a grief-stricken place, I've explored strange sexual fetish stuff, I've explored the mundane aspect of marriage, and monogamy,' Kidman said.

'You work on it,' she went on of marriage. 'It's a very extraordinary, adventurous place to be: incredibly raw, incredibly dangerous and you're very much out at sea. You're exposed. You could drown.'

'When you commit to someone like that, you live and die together by that decision.'

Read more at: http://www.huffingtonpost.com/2009/11/04/nicole-kidman-i-tried-str_n_345060.html

Holy hail -- is this a marriage or Basic Instinct?

All I can say is Tom, you really did a number on her.

I want to focus on this United Auto opinion by Judge Shepherd because I think it encapsulates the way this Judge approaches the law.

As usual, it's a second-tier cert appeal of a circuit court appellate division PCA of a county court decision that went against United Auto.

The first thing that's notable is Judge Shepherd spends an unusual amount of time detailing the basis for the Court's jurisdiction. In fact, you don't even get to the facts section until page 3. This is consistent with the Judge's limited jurisprudential approach.

The second thing I found interesting is you don't learn the outcome of the appeal until page 7 -- most judges will summarize the outcome (affirmed, reversed etc.) up front.

Way to keep your audience guessing, Judge!

Third, this is another example of Judge Shepherd taking a very close and narrow read of a statute -- in this case section 627.736(4)(b), which apparently does not require an insurer to ever respond to an insured's request for payment under a PIP policy:

In fact, carefully parsed, it is clear there is neither a requirement nor a deadline for a personal injury protection insurer to respond to a request for payment.

So under the statute an insurer can simply ignore a request forever.

Finally, there are Judge Shepherd's usual turns of phrase:

However, actions have consequences.

And this:

Accordingly, while there is no absolute deadline for the payment of a properly presented personal injury protection claim, there is a cost—and, indeed, ever increasing risk—to a miscreant insurer who does not treat its customers properly. This is the manner in which the legislature has chosen to regulate insurers in matters of this type.

Here that, all you "miscreant insurers" out there in "miscreant insurer land"?

Don't blame us -- blame your legislature (yet another recurrent theme).

Ok, I got me some football to play!

Getting Chronic With Judge Jordan And/Or Drew Barrymore

Sorry I'm a little late with this morning's post, but I became transfixed by Drew Barrymore on the CBS Early Show. What a cutie, I totally understand why some poor schlub would make an entire documentary simply about trying to meet her.

Well, Judge Jordan just won't stay out of the news.

John Pacenti reports on yesterday's orders:

Two medical associations suing on behalf of poor children seeking basic health care from the state earned two critical victories in federal court.

U.S. District Judge Adalberto Jordan in Miami granted class action status Wednesday and denied the state’s dismissal motion.

The Florida Pediatric Society and the Florida Academy of Pediatric Dentistry claimed in the 2005 lawsuit that the state violates federal law by denying preventative health care to more than 1.5 million children.

Jordan said all Medicaid-eligible children under 21 who reside or will reside in Florida are part of the class. He rejected a claim by the state Agency for Health Care Administration that class-action status should be denied because not all class members are known at this time.

Actually, it's a pretty terse order for this Judge.

Stuart Singer was appointed class counsel, and the State was represented by Chesterfield H. Smith, Jr. as well as Marcos Jimenez from Kenny Nachwalter.

Magistrate Judge McAliley prepared an R&R recommending certification, which the defendants objected to.

I'm not too sure the Judge liked the number of objections:

Despite this precedent, the Defendants hurl a litany of objections at the R&R. Though the objections are impressive in number, they lack merit.

The defendants also argued a number of factual disputes exist which must be resolved at the certification stage, something the Judge also rejected:

The defendants argue that the R&R applies an incorrect legal standard to determine whether the proposed class satisfies Rule 23's requirements and that I should conclusively resolve factual disputes where there is conflicting evidence. As is evident from the legal standard applicable to class actions, conclusive resolution of factual disputes is not required. I may accept the plaintiffs’ allegations as true and may “consider the merits of the case to the degree necessary to determine whether the requirements of Rule 23 will be satisfied.” See Vega, 564 F.3d at 1265-66.

Finally, the Judge denied the defendants' motion for summary judgment, and though the order is also somewhat terse, it is lightened by the Court's Gonzaga analysis (a case right up there with Venetian Salami).

It will be very interesting to see where this one leads.