Judge Cohn Refuses to Stay Discovery Pending MDL Transfer.

 In light of the fact that the MDL Panel is meeting in Miami today, it seems timely to note this interesting opinion from Judge Cohn refusing to stay written discovery in a case that has been designated by the defendant for possible MDL transfer.

Here is Judge Cohn's reasoning:

Plaintiffs contend that whether or not this case is transferred to an MDL court, discovery will commence either way. Under the particular facts surrounding this action, this Court agrees that there is no reason to delay discovery. Defendant has been litigating similar cases for several years. In reviewing Grace and Morgan, it appears that the particular facts regarding duties and supervision of store managers may differ from state to state, meaning that discovery of the duties of Florida managers is likely relevant regardless of transfer. Given these appellate decisions, it is not clear that this action will be transferred. In addition, a hearing on the pending transfer motion may not occur for 60 days, given the Panel’s schedule. These facts make this case different from many other actions that this Court has completely stayed pending MDL transfer.

Therefore, the Court concludes that while it will grant a continuance of the scheduling conference and a limited stay of this action, this stay does not include written discovery requests. The Court is not compelling production of any documents – the Court is merely exercising its discretion not to stay written discovery. The Court reaches this decision even though a scheduling conference has not taken place.

 Welcome back to Miami, visiting judges!

Rothstein Trustee "Forgot" Pledge of Confidentiality.

Frankly I'm bored by the Rothstein "revelations" -- about his partners' alleged involvement, the slush funds, the hookers etc. -- but I did find Judge Cohn's order regarding the Trustee sharing confidential information gleaned from an earlier Rothstein interview to be pretty interesting:

In opposition to this cross-motion, counsel for the Trustee explains that the disclosure made to counsel for the Coquina plaintiffs was part of the settlement between the Trustee and Coquina of an adversary action. Counsel states that in the rush to expedite approval of this settlement by the bankruptcy court, he “forgot” the pledge he made to the Court not to disclose the information, and while sincerely apologizing to the Court, further defends the disclosure under the joint interest doctrine.  The Trustee contends that the legal basis for non-disclosure of the interview, the work product privilege, is subject to the joint interest doctrine exception, in that once the settlement occurred, the Trustee and Coquina’s interests were aligned against TD Bank.

Ok, that's pretty lame -- I think he should have stopped after "I forgot."

Why apologize if you did nothing wrong?

On the other hand, if you did something wrong, and you have apologized (for which you get much credit in my book), why diminish the apology by trying to defend your actions?

Can Scott Rothstein Give a Deposition Without Marc Nurik?

That's the burning question raised by Judge Cohn in his order today:

Counsel for Mr. Rothstein shall respond to the Trustee’s Expedited Motion to Amend Writ of Habeas Corpus Ad Testificandum [DE 53] by November 21, 2011, by updating the Court on his availability for the December 12 deposition, and by stating his client’s position on whether the deposition can go forward without Mr. Nurik’s presence, either with no counsel or substitute counsel;

Substitute counsel?

Is there anyone who could help Scott out?

Ok, probably have to wait for Marc.

Judge Cohn Certifies Class of Gulfstream Poker Dealers.

 This doesn't seem like much of a claim, but allegedly Gulfstream does not properly pay the right portion of tips to their poker dealers, who apparently already make $32 per hour:

Defendant opposes notification for several reasons. First, Defendant argues that Plaintiff has failed to meet his burden that other individuals wish to opt in to this lawsuit.  Defendant contends that because Plaintiff and other poker-dealers make $32 per hour already, they would not be concerned with the potential recovery of an extra $1 per hour if they opted in to this action. Second, Defendant contends that Plaintiff has failed to identify a specific individual who desires to opt in to this action. Finally, Defendant argues that because it has already offered to settle this action with Plaintiff and the poker-dealer affiants for full FLSA damages and attorney’s fees, the action is essentially moot.

You shouldn't count other people's money, but on the other hand that's pretty good coin!

Why'd you go to law school again?

Scott's Parents Confirm: He Was A Nice Jewish Boy.

Roth Stein Parents Letter

I don't know about you, but I hope I'm never in a position to have to ask my parents to write a letter to a federal judge I used to appear before, explaining how I was a good boy who like everyone complained about going to Hebrew school as a kid.

Oy the Tam Tams!

But in a way it's touching, as well.

Or is STL right -- it's all part of the script?

The Rothstein Letter!

Roth Stein Letter

Dear Judge Cohn:

So there I was in Morocco, at the runway, and at the last moment I double crossed Renault, forcing him at gunpoint to assist in our escape.

Then, suddenly, I make Ilsa board the plane to Lisbon with her husband, telling her she would regret it if she stayed: "Maybe not today, maybe not tomorrow, but soon and for the rest of your life."

I then walked off into the fog, remarking "Judge C, I think this is the beginning of a beautiful friendship."

Buju Banton Trial Delayed.

I see David noted that nice article on Judge Cohn.

Lots of good stuff in there, but this part stuck out:

Growing up in Tuskegee, Ala., during the civil rights struggles of the 1950s and 60s, the Cohns owned a store and were one of two Jewish families in town. There was no synagogue so Cohn, his parents and his two sisters drove 40 miles west to the Reform temple in Montgomery for religious classes. "The worst part of it was I missed the first half of the NFL game," Cohn said wryly.

Cohn witnessed and was disturbed by racism against African-Americans. At an early age, he became acutely aware that his own heritage was also perceived as alien in the South.

"You want to assimilate, you don't want to be different, no kid wants to be different," Cohn said. "On the other hand, you want to maintain your Jewish heritage and traditions."

Hey, that's pretty much the first five chapters of Sarah Silverman's new book (except she grew up in rural New Hampshire and is way cuter than Judge Cohn -- no offense).

Meanwhile, Mr. Markus should have lots more time to prepare for trial, thanks to MD FL Judge Moody:

Banton's trial on drug charges originally was scheduled for April 19, the date Banton requested. But 11 days before the trial was set to start, U.S. District Judge James Moody moved it to June 21.

The defense objected, citing the cost of rearranging travel for witnesses and noting that Banton would be held in jail longer.

Moody overruled the objections.

I'm a civil litigator, so the concept of a "speedy trial" is not something generally in my lexicon.

But "justice delayed is justice denied" definitely rings a bell, or maybe I'm thinking of Dylan's "Tomorrow is a Long Time"?

Either way, I vividly remember Professor Stotsky repeating it over and over again....

Try Resveratrol Risk Free -- HAHAHAHAHA

resveratrolbullcrap

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

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

Two words: Sarah Palin.

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

Well, I don't want to say a little birdie in Judge Cohn's chambers chirped about our musings, but let's just say a little birdie in Judge Cohn's chambers decided to do exactly as we suggested:

For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as follows:

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

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

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

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

5. The Joint Motion to Amend Scheduling Order and Continue Trial Date [DE 18] is hereby GRANTED. Class certification issues are deferred until after a ruling on
the converted Motion for Summary Judgment, at which time the Court will reset the schedule if necessary.

That wasn't so hard, was it?

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

Wasn't my idea Judge!