Insurer to Judge Huck: Good God Did You Get Things Wrong!

Let's say you have an insurance company as a client, and the company doesn't want to defend a class action, relying on an alleged policy exclusion.

The insured and you both file cross-motions for sj before Judge Huck, and you wind up losing the motion because the Court finds there was a duty to defend.

What do you do?

Of course, the only logical option is to go back to the well on a motion for reconsideration and explain that Judge Huck simply screwed up in three major ways and thus committed "clear error."

Guess how that turned out.

Interesting side note -- the Judge goes all "deep cuts" with a reference to the doctrine of noscitur a sociis -- quick, does anyone know what means?

(No fair if you Googled it.)

Judge Huck Wrote an 11th Circuit Opinion!

Don't get so excited, it's a pretty dry legal issue involving an appeal from the NRBQ NLRB:

In light of this uncontradicted testimony, the language of Lakeland’s employee handbook, the LPNs’ job description, and the level two coaching forms in the record, the record as a whole does not support by substantial evidence the Board’s conclusion that the LPNs’ role in the level two coaching process is “merely reportorial.”

I take it back -- we're talking level two coaching forms!

"I NEVER BROKE THE LAW"

In an interesting case tried pro se before Judge Huck, the 11th Circuit has affirmed her factual findings that the plaintiff had no claim against Bank of America for unauthorized transfers from her account:

Based on the District Court’s finding, Bank of America was not liable for the withdrawals for at least one of two reasons. Merisier furnished the means of access to her account voluntarily, either as a willing participant in a fraudulent scheme or as one duped by Jeanty; Merisier admitted the information could not have fallen into Jeanty’s hands by mistake or accident. First, therefore, Merisier furnished Jeanty with access to her account without notifying Bank of America that she did not intend him to withdraw funds. See id. § 1693a(12)(A). Alternatively, Merisier collaborated with Jeanty, which would have brought the disputed transactions squarely under § 1693a(12)(B), which excludes transfers “initiated with fraudulent intent by the consumer or any person acting in concert with the consumer.” Either way, EFTA’s error-correction protocols did not apply to these transactions.

Not sure why this was tried or worse yet, why it was appealed?

I also like footnote 11, arguing relevancy:

We reject Merisier’s argument that District Court premised its factual conclusions on irrelevant information. According to Merisier, the District Court ought not to have considered evidence suggesting a scheme to defraud, evidence suggesting the skirting of cash-deposit reporting requirements, or evidence raising suspicions about the source of the funds in Merisier’s account. These facts are all relevant because they suggest the withdrawals were authorized.

Indeed, that would seem to be the only point of such evidence.

Judge Huck Reversed Over "Love Boat" Jurisdictional Ruling!

Did you know Judge Huck is presiding over a case involving the "Love Boat" of 70s TV fame?

Not only that, like most relics of the 70s including possibly Lauren Tewes and Ted McGinley (the ship's photographer!), it is in "deteriorating and defective condition."

Ouch.

Thanks for spoiling another treasured childhood memory.

You May Want to Avoid Swimming at North Beach.

The good ole' Army Corps of Engineers, recently lambasted in Harry Shearer's excellent documentary "The Big Uneasy," comes under fire by Judge Huck for negligently depositing large rocks along the North Shore beaches, causing at least one very severe injury:

The Court concludes that the government breached its duty to Downs because the Corps allowed rocks, up to a basketball in size, to be placed in the beach fill on Phase 2 and knowingly allowed at least some of these rocks to become exposed in the surf zone between 72nd and 73rd Streets. The Court also finds that the government’s breach of its duty was a proximate cause of the injuries that Downs sustained when he dove diagonally into the ocean and hit his head on a rock. The injuries sustained by Downs were a foreseeable result of the government’s negligence.  See Crislip v. Holland, 401 So. 2d 1115, 1117 (Fla. 4th DCA 1981) (“In order for injuries to be a foreseeable consequence of a negligent act, it is not necessary that the initial tortfeasor be able to foresee the exact nature and extent of the injuries or the precise manner in which the injuries occur. [A]ll that is necessary . . . is that the tortfeasor be able to foresee that some injury will likely result in some manner as a consequence of his negligent acts.”) The Court also concludes, as discussed above, that Downs’, Miami-Dade County’s, the State of Florida’s, and the City of Miami Beach’s negligence each contributed to Downs accident and resulting injuries.

Knowingly allowing basketball-sized rocks to be placed along the surf line on Miami Beach?

No doubt the Greater Miami Convention & Visitors Bureau will somehow turn this into a positive -- come visit Miami Beach get a free kettle bell/beach rock workout!

Judge Huck and the "Love Shack" (End of Headline).

As a famous unicyclist once said,

There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don't know we don't know.

Here are the things we know:

1.  Judge Huck went up to the 11th Circuit to sit by designation.

2.  Georgia is in fact the home of the B-52s.

3.  Judge Huck sat on a panel that found itself in a Love Shack.

That's all I'm saying.....

(God it's slow around here -- see what I have to work with?)

"The Situation" Sues His Dad (With Richard Wolfe's Help)!

The Situation Dad Complaint


Courtesy of our friends at Riptide, it appears that Jersey Shore's "The Situation" has sued his polite, exceedingly charming father in the 305 and has hired our own Richard C. Wolfe to prosecute dear old Daddy.

The case is before Judge Huck.

Can you imagine the father appearing before Judge Huck pro se?

Here's a taste of what Judge Huck can expect:

11th Circuit Affirms Guts of YoPlus Class Cert Decision.

Judge Huck's Yoplus class certification decision was closely watched, and no doubt gave some indigestion.

Insert groan here.

Yet the 11th, via Judge Fay, has affirmed its reasoning and Judge Huck's "scholarly" analysis, though it was kicked back to remove any reliance element from the class definition:

The district court’s analysis in its Order on Motion for Class Certification is sound and in accord with federal and state law. The reasoning reflected therein is well within the parameters of Rule 23’s requirements for certification of a class. And, if the definition of the class had been in accord with the legal analysis, we would have readily affirmed.1 However, at the end of the district court’s Order, it defined the class in a manner which seems to conflict with its earlier sound analysis. In its analysis, the district court repeatedly stated that a plaintiff need not prove reliance on the allegedly false statement to recover damages under FDUTPA, but rather a plaintiff must simply prove that an objective reasonable person would have been deceived. And, this is correct. Notwithstanding this analysis, the district court went on to define the class as “all persons who purchased Yo-Plus in the State of Florida to obtain its claimed digestive health benefit.” Order at 21 (emphasis added). The class definition limits the class to those who purchased YoPlus “to obtain its claimed digestive health benefit,” which takes into account individual reliance on the digestive health claims. Had the district court defined the class in a manner which did not take individual reliance into account, such would be consistent with the district court’s earlier analysis. Thus, we vacate the Order certifying the class and remand to the district court for further consideration.

Seriously, what kind of maroon believes that "magic yogurt" somehow improves your digestive health?

(Wait a second, people are taking Donald Trump's run for the Presidency seriously.  On second thought, don't answer that.)

SFL Friday -- Judge Huck Rules Against WSVN Over Nielson Methodology Change.

It's Friday and a three day weekend honoring that warmonger Martin Luther King, so perhaps it's fitting that Judge Huck has ruled today on a very interesting antitrust case involving whether Nielson properly captures minority and/or poor viewership (don't tell anyone, but I hear there's a lot of overlap).

Judge Huck in his Order granting partial summary judgment gives a nice summary of the claims brought by WSVN's parent company Sunbeam, which deal with a change in how viewership is measured:

This case arises out of controversy surrounding Nielsen’s October 2008 implementation of its Local People Meter methodology, a People Meter method replacing the Meter-Diary method in the Miami-Fort Lauderdale television market. Id. ¶ 3.  Sunbeam alleges that Nielsen implemented Local People Meters despite its knowledge that certain demographic groups—in particular, minorities—do not use the technology properly, leading to inaccurate ratings. Id. ¶ 57. Sunbeam alleges that this practice has drawn the criticism of customers, minority groups, advertisers, and congressional leaders, and contravenes an industry association’s recommendations. Id. Sunbeam further alleges that this flaw can be corrected by modifying survey methodology and statistics. Id. ¶ 82. The consequences of the change to the Local People Meter methodology have been profound: a dramatic reduction in WSVN’s ratings—in some cases by as much as fifty percent—resulting in lost advertising revenue of $1 million per month and a $100 million decrease in WSVN’s going-concern value. Id. ¶ 10.

Sunbeam contends that its injury is the result not merely of a defective ratings product, but of antitrust violations. Sunbeam alleges that Nielsen engaged in the following exclusionary and monopolistic conduct: (1) mandating contract provisions that prevent competitors from entering the market; (2) undertaking transactions and business strategies intended to neutralize actual or potential competitors; (3) imposing punitive pricing on customers who resist its practices; (4) utilizing defective ratings data to attract and retain new cable customers, thereby foreclosing a potential avenue of competitor entry; (5) imposing on its customers onerous contract provisions that, inter alia, leave them with no effective contractual recourse in the event of breach; and (6) charging noncompetitive prices for its rating services. Id. ¶ 13.

Hmm, this strikes me as a very difficult antitrust claim to establish..

Who are Nielson's competitors, for example?

The Judge finds all sorts of problems, including the aforesaid lack of competition as well as causation, and focuses on the zero-sum nature of TV viewership ratings:

For years, Sunbeam was pleased with the status quo of the Meter-Diary method, which even Sunbeam admits has flaws, but other stations, including cable stations, were not. Now some of those other stations may be satisfied, and Sunbeam is not. Were Nielsen to be compelled to revert to the Meter-Diary method or institute a new method entirely, it would likely face new complaints and possibly new antitrust actions from other stations, cable or broadcast, dissatisfied with their decreased allocation. This precarious position does not mean that Nielsen should be immune from some suit. The law does require, however, that Sunbeam present a triable issue of damages and, as to lost ad revenue and going-concern value, it cannot do so without undue speculation.

The Court did defer on the state court counts and permitted additional briefing, so all is not lost yet (actually, it probably is).

Boy, reading that thing was exhausting -- I'm cutting out for some well-deserved windsurfing but will try to check in tomorrow.

Have a great weekend!

Judge Huck Sends Madoff/Banco Santander Claims to.....Ireland?

huckirishspring

In a significant forum non ruling involving a multi-national cast of characters all swirling around Bernie Madoff, Judge Huck has sent the Madoff/Banco Santander litigation off to the Emerald Isle with a traditional (if somewhat off color) Irish toast:

Here's to our wives and girlfriends:

May they never meet!

Oh no, that's definitely not it!

Let me try again:

Here's to a long life and a merry one.

A quick death and an easy one.

A pretty girl and an honest one.

A cold pint-- and another one!

Sheesh, I keep messing this up -- way off.

One more time:

Since the Court lacks personal jurisdiction over half (and apparently some of the most important) of the Defendants in this action, including the Bahamian funds’ auditor, custodian, administrator, and a director, it makes little sense to try an expensive and time-consuming case in Florida while another court, in a virtually duplicative proceeding over four thousand miles away, potentially adjudicates the same legal and factual issues. The Plaintiffs do not agree that the inability to try this entire case in the United States weighs in favor of trying all claims together in another venue. The Court, however, considers this a textbook example of a private convenience factor favoring forum non conveniens dismissal.

Choice of law considerations also favor trying this case in Ireland. In their motions to dismiss, many of the Defendants argue that the Plaintiffs’ claims are barred by Irish and Bahamian law, which, under applicable choice of law rules, appear to govern many of the Plaintiffs’ claims. The Court also notes the possibility that the laws of other nations, such as Switzerland or Spain, may also be applicable to some aspects of the transactions at issue. Even though the relevant transactions took place between foreign parties outside the United States, the Plaintiffs insist the New York common law—and not the law of any other jurisdiction—governs all of their common law claims. Despite the fact that the Supreme Court has expressly declined to extend federal securities law to the claims at issue and the distinct possibility that other nations may have laws and regulations that govern the securities transactions here (not to mention the near certainty that foreign law governs most, if not all, of the Plaintiffs’ common law claims), the Plaintiffs contend that a Florida court should apply federal securities law and New York common law in adjudicating claims between, for instance, a Spanish investor and a Spanish bank, a British Virgin Islands company and an Irish auditor, or a Mexican investor and a Swiss investment manager, none of whom contracted to perform any services for the Plaintiffs in the United States.

The Court finds that it is not appropriate to try to force a square peg (claims by foreign parties, governed by foreign law and concerning foreign securities) into a round hole (an American court). Because Ireland offers an available and more convenient alternative for trying this case on the merits, it should be tried there. As the Eleventh Circuit has explained, forum non conveniens is a favored and workable intellectual tool that, by “separating out for hearing only those cases where contacts with the American forum predominate,” offers a reasonable solution to “vexing jurisdictional” and “complicated international choice of law questions increasingly presented to district courts.” Sigalas v. Lido Maritime, Inc., 776 F.2d 1512, 1519 n.10 (11th Cir. 1985).

   May the road rise to meet you (I'm paraphrasing....).

Judge Huck Cites Emily Dickinson And "International Concept of Due Process."

huckdickinsonorder

Ok, maybe not a entirely fair headline, but I have to spice things up somehow.

Actually, this is an interesting order in which Judge Huck denies reconsideration of his refusal to enforce $97 million in Nicaraguan judgments against Dole over alleged injuries sustained from the pesticide DBCP sprayed on Nicaraguan banana plantations.

We've previously discussed this case here and here.

Judge Huck's Dickinson reference brought back some pleasant college memories:

But now, Plaintiffs contend that, unbeknownst to the participants in this lawsuit, including, apparently, Plaintiffs themselves, late arriving, independent legal grounds have emerged that compel recognition of Plaintiffs’ judgment. This alone is reason to deny Plaintiffs’ motion. “The past is not a package one can lay away.” EMILY DICKINSON, SELECTED LETTERS 290 (Thomas H. Johnson, ed., Belknap Press of Harvard University Press 1986) (1914). Rules 59 and 60 do not provide litigants with an opportunity to test new legal theories in the absence of an intervening change in controlling law.

Classy and erudite (and properly cited!), but I might have went with this bon mot:

For each ecstatic instant
We must an anguish pay
In keen and quivering ratio
To the ectasty.

For each beloved hour
Sharp pittances of years,
Bitter contested farthings
And coffers heaped with tears.
I don't know, maybe the Judge's reference was more on-point.

Then we have Judge Huck's reference to that dreaded hip Eurobeast, international "law":

In refusing to recognize the judgment, the Court applied the “international concept of due process” outlined by the Seventh Circuit in Society of Lloyd’s v. Ashenden, 233 F.3d 473, 476-77 (7th Cir. 2000). Osorio, 2009 WL 3398931, at *16, 2009 U.S. Dist. LEXIS 99981, at *51.

Woah -- I guess the Judge is unaware of the mild hand-wringing that occasioned Yale Law Professor Harold Koh's nomination to serve as legal advisor to the State Department or Justice Sotomayor's comments on "foreign law" (she actually said Justices Scalia and Thomas had a point).

Old Europe and Emily Dickinson, all in one order -- that must have been one nice Valentine's Day.

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.

Lawyer Spotlight -- Steven Marks

Steven sure has generated a lot of news recently.

First, there's the $22.5 billion Bank of New York Russian customs case, which settled for $14 million (prior coverage here).

Then there was Judge Huck's ruling in the Dole matter, which has a number of facts that aren't too hot, as noted by CNNMoney's Roger Parloff:

The broad terms of Huck's ruling make its reasoning virtually certain to control the outcome of a companion DBCP case known as Herrera Rios v. Standard Fruit Co., in which U.S. Lawyers were expected to seek enforcement of another $800 million in Nicaraguan court judgments.

While Judge Huck did not reach the question of fraud, he did note, as relevant to the due process issues, that the Nicaraguan judge in the Osorio case had prevented Dole from introducing into evidence 151 birth certificates indicating that at least 32 of the 150 prevailing claimants in the Osorio case (representing $21 million of the $97 million judgment) had fathered at least one child after his last alleged exposure to DBCP.

One plaintiff, for instance -- who had been awarded $574,880 for sterility and related mental distress -- had, by his own admission, fathered at least four children after his last DBCP exposure. (Dole's evidence suggested that this plaintiff had actually fathered nine children in all, including eight after his last exposure.)

Huck also found that, even assuming the plaintiffs' medical claims were accurate -- the Nicaraguan procedures had not permitted Dole to test the plaintiffs independently -- more than half of them (78 of the 150) "suffered from injuries for which, according to the unrefuted medical testimony presented to the Court, there is no medical evidence that DBCP is capable of causing."

The average recovery in both the Osorio and Herrera Rios cases was about $650,000 per plaintiff, which is a lot of money in a country where most of the population earns less than $2 a day. According to Judge Huck's ruling, Nicaraguan labor law ordinarily requires employers to pay no more than $1,240 to compensate the family of a worker who has died or become totally disabled due to occupational hazards.

So let's see -- no forum nons to Ecuador, now Nicaragua, the list keeps growing.....

Finally, Steven just filed this interpleader action before Judge Gold involving disputed fees arising from the Siber Air settlement.

Boy, I sure hope he checked the redaction box, we don't need any more issues coming up this week.

Judge Hulk Smashes Joe Cool Verdict; Herald Approves

I almost never read Miami Herald editorials. They are usually banal, boring, and "measured" to the point of squeezing out anything remotely controversial or even interesting -- leaving only inoffensive and obvious truisms, poorly presented.

But today I have to agree with the Herald, which strongly endorsed Judge Hulk's smashing of the Joe Cool verdict:

Better late than never. This is the best that can be said about U.S. District Judge Paul Hulk's decision last week to throw out four guilty verdicts against a Hialeah security guard whose gun was used in the murders of a Miami Beach charter-boat captain and crew. It's a pity that Judge Hulk didn't realize the mistake earlier -- during trial -- when it could have spared the victims' grief-stricken family members another round of trauma.

Seething with anger, and busting out of his "puny human" clothes, Judge Hulk still managed to do the right thing:

That was a mistake, Judge Hulk said last week. He acknowledged that he should have told the jurors they could find Zarabozo guilty of the gun charges only if they also found him liable for the kidnappings or deaths. It is rare for a judge to publicly admit to a trial error, especially after a verdict has been rendered. For this, Judge Hulk deserves credit. It took courage and conviction for him to do so.

Perhaps we should not be so quick to judge the rampages and wanton destruction of buildings and property that are so often associated with Judge Hulk's courtroom rage. Maybe they are merely the product of a tortured, misunderstood and conflicted soul.

Oy. I should note this is not some typo -- the Herald got Judge Huck's name wrong nine times in that editorial.