Rick Scott's Suspicion-Less Drug Testing: It's Back! (Sorta)

Well the 11th Circuit has muddied the waters somewhat by sending back to Judge Ungaro the colossally stupid drug-testing of state employees' scheme that Rick Scott came up with a few years ago.

The reasons have mostly to do with the convoluted boundaries between a facial attack on a statute vs. an "as applied" analysis, and whether the judge used the right analytical framework (to me she did):

To date, the parties’ litigation strategies in this case seem to have focused on avoiding the kind of job-category-by-category balancing that Skinner and its progeny teach us is the proper modality for evaluating the constitutionality of a suspicionless drug testing policy. The Union originally sought, and ultimately received, facial relief that cannot be sustained in light of the Executive Order’s constitutional applications. Meanwhile, the State has resisted providing the district court with any specific special-needs showings that apply to individual job categories and instead has insisted that a few broad, abstract reasons can justify the EO across the board. Admittedly, providing job-category-specific reasons and evidence -- which the district court must have in order to conduct the proper analysis -- is a substantial, even onerous, task. Nonetheless, convenience cannot override the commands of the Constitution.

This is Florida -- are you sure about that last sentence?

11th Circuit Affirms BankAtlantic JNOV!

In a major win for Gene Stearns and his client BankAtlantic, the 11th Circuit has affirmed (on other grounds) the JNOV entered by Judge Ungaro after a large plaintiff's securities fraud jury verdict:

In this case, we conclude that the evidence was insufficient to support a finding of loss causation, an element required to make out a securities fraud claim under Rule 10b-5. See, e.g., Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 342, 125 S. Ct. 1627, 1631, 161 L. Ed. 2d 577 (2005) (listing among the elements of a § 10(b) securities fraud claim “loss causation, i.e., a causal connection between the material misrepresentation and the loss” (emphasis omitted) (internal quotation marks omitted)). We therefore affirm.

This was a long, expensive war but score one for Stearns and his team.

Gaze Upon Judge Ungaro's Fair Districts Order!

I had the pleasure at lunch to catch the always intrepid Julie Kay on the airwaves today, on the publicly-funded radio station that has single-handedly brought America to her economic knees (you know, the same one that airs "Wait Wait Don't Tell Me").

Julie was informative and knowledgeable as always.

But during the course of the discussion Jim DeFede made a good point -- why is it that the Florida legislature is overwhelmingly Republican, often by lopsided majorities and populated with quite conservative lawmakers, yet in the Florida general elections (President, Senator etc.) the splits are more 50/50 and the majorities typically razor-thin?

Short answer: gerrymandering.

That's a nice segue for Judge Ungaro's order upholding on summary judgment the Fair Districts constitutional amendment, which starts off pretty old-school (as in The Framers old-school):

Both sides agree that the case turns on the Elections Clause, and both make passing references to the intent of the Framers. Yet absent in the briefs of both sides is any true attempt to analyze the origins of the Elections Clause. It is as if the proceedings of the Constitutional Convention, the state ratification debates, and the First Congress lay somehow beyond the reach of these litigants.

The Judge then jumps into the old Constitutional Convention time machine, determines that Smiley Smiley was a pretty good Beach Boys album after all (read the order!), and concludes that Florida voters can pretty much screw around with their own Constitution however the hail they like.

Have a great weekend!

Your Tuesday Morning Round Up.

Hi kids, big news -- Gwynne Young wins the Florida Bar run off!

Oh I'm kidding, the big news down here, broke by David,  is Gene Stearns convincing Judge Ungaro to grant his 50(b) motion and throw out the jury's verdict against BankAtlantic.

Guess it really was the worst trial Gene's ever seen.

Does this vindicate the overall approach to the litigation by the defendant (which just posted a $22.9 million loss this quarter)?

Hard to say as we're somewhat in uncharted territory, though it's a major concession by the Judge that things could have/would have/should have proceeded differently.

In other news, Glenn Garvin thinks NYT readers are deviant liberals who love big black c*%k.

Hey, I just report this stuff!

(I'm joking, he just randomly selected a few books to highlight the average content of the NYT Sunday book reviews.)

Shorter Gene Stearns: It's All Judge Ungaro's Fault.

I understand there may be a certain amount of settlement posturing to all this, but is Gene going overboard with his very public and very direct "Judge Ungaro screwed up" approach to appealing the BankAtlantic securities verdict?

I mean, this is a guy who already said it was the worst-tried case he's ever seen in his life, and that includes every episode of Judge Judy plus that old Boston judge from The Verdict (ok, I added the last part).

In today's DBR, Stearns continues to focus exclusively on Judge Ungaro:

"I don't blame the jury," Stearns said. "The judge instructed them that Alan Levan made four false statements. And that is, I believe, unprecedented for a judge to tell the jury that one of the defendants made false statements."

Gene also didn't like how the Judge handled the damages expert:

Stearns said Preston's testimony about damages rested on several factual assumptions that the jury did not assess: "The judge refused to allow the jury to decide the factual questions upon which her testimony was predicated. Very puzzling."

Puzzling?  It's downright perplexing!

 In their response, posted here, the plaintiffs take this argument head on:

Even though the Court was not required to submit a special interrogatory regarding Preston’s assumptions to the jury, the jury clearly had the opportunity to consider and reject the assumptions. Preston’s assumptions (found at paragraph 10 of her report, PX726) were published to the jury during her testimony. Trial Transcript (“Tr.”) 2668-69. Defendants vigorously cross-examined her about the assumptions and the significance if Plaintiffs failed to prove them.6 Moreover, the instructions given by the Court were absolutely clear that unless the jury first found liability the issue of damages was not to be reached (DE 635 at 23) and specified that it was up to the jury to decide whether it would rely on the expert’s opinion. Id. at 6. Given these instructions, it is implicit in the jury verdict awarding damages based on Preston’s testimony that the jurors found that the factual assumptions she relied on were proven.

If Judge Carnes gets this, given his penchant for quoting old song lyrics, I hope he updates his references a bit (I've given him a hint above).

Gene Stearns Doesn't Think Judge Ungaro Did That Good a Job Presiding Over His Trial.

Bank Atlantic New Trial Motion

I'm paraphrasing, but that's the takeaway from BankAtlantic's motion for new trial, which through the magic of Scribd you can gaze at above.

Gene Stearns: It Wasn't Me!

Well I guess the big headline this morning is Gene Stearn's rare loss in a rare securities fraud case tried to a jury before Judge Ungaro.

In a case marked by particularly vituperative, some would say overheated rhetoric, Gene now seems to be suggesting it's all Judge Ungaro's fault:

Eugene Stearns, an attorney for BankAtlantic, said the company would appeal on a variety of issues, including U.S. District Judge Ursula Ungaro’s ruling before the trial that four of the 19 statements were false.

“We are obviously disappointed with the outcome, but in light of the court’s ruling on the four statements, we’re not particularly surprised,” Stearns said. “The probability that they will ever collect a penny on this is infinitesimally small.”

In a DBR article inexplicably not yet online, Gene reportedly added that "he has never seen a case with so many issues to pursue on appeal in his 40 years of practicing law."

Seriously -- most trial errors ever?

Who the hail presided over this piece of dreck anyways?

I can only begin to imagine -- deliciously -- what this thing must have cost in attorney's fees and costs.  For example, I noticed that nine Stearns Weaver attorneys apparently participated in the failed mediation of this matter back in June.