Loan Me Fifty Dollars (So I Can Have a Brooklyn Bagel)!

This story represents a near perfect storm of what I love about South Florida.

Let us count the ways:

(1)  A lawsuit;
(2)  Over alleged "Brooklyn water" bagels;
(3)  Involving Bob Zarco; and
(4)  Larry King.

Let's start with the "Brooklyn bagel" concept:

Since launching its flagship restaurant in Delray Beach in August 2009, The Original Brooklyn Water Bagel Co. has expanded to 14 other locations in three states. With the slogan "It's all about the water," the company touts on its website how a 14-step "proprietary water treatment" system allows it to replicate the water that flows from upstate New York reservoirs to Brooklyn faucets without having to be filtered.

Seriously?

Let's assume the company's claims are true and there is some magical way to recreate New York tap water.

Why??

Get over it -- listen, you haven't lived in New York for more than 30 years, Namath no longer plays for the Jets, and buying a bagel at a strip mall in Boca will just never be the same as picking up a bagel and schmear at Zabar's like you used to when you were fourteen.

Deal with it.

Have you ever considered your mythical attraction to New York bagels and pizza reflects more of a yearning for your lost, innocent youth then it does some objective measure of which tap water ingredient indisputably makes for the best bagel?

Just go to Bagel Bar East or Deli Lane, complain like everyone else,  and be content you wake up every day happy, healthy and hungry.

Then there's this:

Former CNN talk show host Larry King signed on to be a company spokesman and do franchise development in Southern California.

Oy!

This isn't a red flag?

Finally, there is this:

"The water filtration system is not unique and does not render water equivalent to Brooklyn water," said Robert Zarco, an attorney representing Andrew Greenbaum, who bought franchise rights for the restaurant in Broward, Miami-Dade and Monroe counties. "You want Brooklyn water, go to Brooklyn. You want a Brooklyn bagel, go to Brooklyn."

Read more here: http://www.miamiherald.com/2012/03/10/2686908/lawsuit-bagel-companys-brooklynized.html#storylink=cpy

No kidding, Bob!

Read more here: http://www.miamiherald.com/2012/03/10/2686908/lawsuit-bagel-companys-brooklynized.html#storylink=cpy

Your Friday Sanctions Order!

Order Granting Renewed Motion for Default

This is the sanctions order in the Chris Korge/Claudio Osorio matter before Judge Manno Schurr we talked about the other day.

I must admit it does paint a pretty bleak picture of discovery abuse.

Happy Friday!

Can Someone Explain This?

Judge Valerie Manno Schurr appointed Mark Meland as a receiver for a company after finding it in "default" for failing to turn over financial records to South Florida power broker Chris Korge, who is represented by Kendall Coffey.

Huh?

Was the "default" a discovery sanction?  Did the Judge strike the defendant's pleadings?  Is that what the "default" means?

How do you get from a discovery sanction to the appointment of a receiver?

Even if the obligation to turn over records was contractual, as opposed to arising from the defendant's discovery obligations, I'm not following how a finding of "default" leads to the appointment of a receiver to run the business.

Maybe Bob Zarco, who represents the defendant, can explain this one, because something seems off about this story.

"Only in America."

Pictured above: Bob Zarco reenacts the triumphant final scene from Rocky V.


I kid I kid.

Actually he was just explaining how promoters turn boxers into "brands":

"What Don King did with Mr. Mayorga was create a brand, and what the court did today is keep another promoter from stealing that brand," said Robert Zarco, one of the attorneys.

It's been a while, but is he talking about that old boxing film with Bogart and Rod Steiger?

Meanwhile, David highlights Justice Kennedy's recent remarks on judicial "empathy":

When asked if empathy has a place in judicial rulings at the highest levels, Kennedy said absolutely. He said prison sentences in the United States are eight times longer than in other Western countries for the same crimes.

“If lack of empathy means you close your eyes to the law’s decree, that’s just silly,” Kennedy said. “Capital defendants in a single windowless 12-by-8 cell for 20 years waiting for their sentence. You are not supposed to know this when you are a judge?”

I can't believe we will have to endure yet another silly season so soon after the last one, where Senators and talking heads make repeated, impassioned, empty oaths of fealty to the "rule of law."

It's funny, I happen to be midway through Robert Hughes' masterful account of the founding of Australia, The Fatal Shore.

The first part of the book looks at Georgian England and prevailing, Hobbesian attitudes toward the "criminal class" -- specifically the need to kill, isolate or banish criminals, who were thought to be born that way and incapable of rehabilitation.

Hughes writes of the excessively severe Georgian criminal code and the almost fetishistic devotion to the "rule of law" (at the expense of justice or reason):

Such legislation was part of the general tendency in eighteenth-century England: the growth of the Rule of Law (as distinct from any particular statute) into a supreme ideology, a form of religion which, it has since been argued, began to replace the waning moral power of the Church of England.

. . . .

Why did the judges weep with the accused? Because both were bound -- though not, of course, in equality of pain -- to the law. This drama of immutable rules lay at the heart of the tremendous power that Law held over the English imagination. The judge simply surrendered to the imperative of the statutes, a course of action that absolved him of judicial murder, and that caused him to weep. His tears humbled him not before the men in the dock, which would have been unthinkable, but before the idea of Law itself. When the Royal Mercy intervened as it commonly did, transmuting the death penalty into exile on the other side of the world, the accused and their relatives could bless the intervening power of patronage while leaving the superior operations of Law unquestioned. The law was a disembodied entity, beyond class interest: the god in the codex. The judge was invested with its numen, as a priest was touched by sacerdotal power. But he could no more change the law than a clergyman could rewrite the Bible.

Think of this the next time you hear someone who knows better prattle on about how judges must -- in every instance -- mechanically apply the "rule of law," as if it resides in the clouds waiting to be divined.

Digital Dump

A random sampling of items k-nocking around in my keppe this morning:

1. I bumped into Bob Zarco last week and he was wearing blue suede shoes -- I call them F U shoes.

2. When does the filing of a lawsuit constitute "civil extortion" or worse yet, "criminal extortion"?

Ask Irvin's lawyer Larry Friedman, who has a history of vigorously and publicly denouncing suits filed against his client.

Maybe someone should ask David Lister, who filed the danged thing.

3. Where are all the women? Even among clerks at the Supreme Court?

4. I'll trade you two Twomblies and an Iqbal for a well-worn Conley:

What is the new test that replaced notice pleading as set forth in Rule 8? In short, there is now a standard of "plausibility" which requires the pleading of "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" of what is alleged in the complaint.⁹ In deciding what is "plausible" the trial court should not accord the presumption of truthfulness to so-called conclusory allegations, and perhaps more importantly, the Twombly Court held that factual allegations that are merely consistent with the elements of the claims did not cross "the line between possibility [or conceivability] and plausibility."¹⁰ The Twombly Court explicitly permits a court to consider inferences that favor the plaintiff as well as those that favor the defendant. This likely means that courts are now required to weigh competing inferences and find, at the motion to dismiss stage, that the inferences that can be drawn in plaintiff's favor are at least as strong, if not stronger, than the inferences that can be drawn in defendant's favor.¹¹

In Iqbal, the Court got very explicit and said a claim is plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged" and to do that a court must "draw on its judicial experience and common sense."¹² Now that is and should be a frightening thought. When courts are told to draw on experience and common sense that means that predictability will vanish because every judge has had different experiences and has a different definition of common sense. What we will see is that depending on a judge's views, one judge will dismiss a claim where another would have let it survive.

Indeed, there are some early post-Twombly statistics. One scholar found that the grant rate of motions to dismiss Title VII cases went from 42 percent under the Conley regime to 54 percent under Twombly.¹³ A different academic found that in the year before Twombly, 54.2 percent of disability cases were dismissed on motion, but in the year after Twombly, 64.6 percent were dismissed.¹⁴ The same holds true for civil rights cases: 41.7 percent were dismissed under Conley, 52.9 percent under Twombly.¹⁵ The motion to dismiss may be seen as the new summary judgment motion, and we will see a continuing trend toward judges determining outcomes rather than juries.

5. I hate stats. And Justin Long.

I probably hate Justin Long a bit more.

Sign of the Times -- Robert Zarco Abandons Extravagant Travel Policy

Hi folks!

So overall it was a pretty good football weekend, no?

Not to get all Iqbal-centric on a bright Monday morning, but I see that the House Judiciary Committee will be holding hearings this week on the dreadfully imprecise Iqbal pleading standard.

It's about time, I say.

I guess now that the folks in DC fixed health care, ended our wars, and restored our shattered economy they can get on to some important legislation for a change.

Vanessa Blum has a nice overview in today's DBR regarding law firms and how managing partners see the upcoming year.

Naturally, no one wants to say -- "it sucks, the clients are not paying, the work is drying up, the costs are out of control, and this year looks worse than last year."

So we hear lots of blather about energy-efficient lightbulbs, trimming fancy dinners and signing megabuck leases as a way to cut costs.

But then I came across this quote from the very wealthy and successful Bob Zarco:

Even Miami franchise law attorney Robert Zarco, a multimillionaire known for his extravagant fashion taste, said he reined in travel and entertainment spending at the 11-lawyer Zarco Einhorn Salkowski & Brito.

“I’m just being a little more cautious,” he said. “We used to stay in the absolute nicest hotels. We used to rent the most luxurious vehicles and eat in absolutely the most expensive restaurants.”

You're not kidding.

Just last year Bob was featured in a Herald article that focused on his high-flying travel expenditures:

Even so, the frequent traveler does not leave home lightly. He insists on five-star accommodations even when clients won't pay for it, making up the difference out of his own pocket.

"When I travel I am leaving my family, I am leaving the comforts of my home to work for someone else, " he said. "I live in a very nice home. I live very comfortably."

So when he's on the road, he tends to sleep in a Peninsula or a Ritz-Carlton, two of the country's priciest hotel chains. He's such a loyal customer that one Peninsula keeps sheets for him embroidered with "RZ."

Holy hail, if Zarco has been forced to endure a night's rest without his personally monogrammed sheets when he stays at the Peninsula, what is the world coming to?

I mean, what's next -- having to forgo the shrimp appetizer before the afternoon deposition? That's just unacceptable.

Seriously, what other indignities can a man be expected to endure?

Robert Zarco Claims Another Scalp!

I'm still reeling from the wealth on display at Bob Zarco's house from his appearance on Joan Rivers' How'd You Get So Rich?

(Oy Bob, that mural!)

We also know that Bob only stays at 5-star hotels.

But today we learn that he's also taken down the GC of Dunkin' Donuts:

The doughnut chain has reportedly filed more than 350 lawsuits against its franchisees. About 100 of them met last month at a Dunkin' Donuts Independent Franchise Owners meeting in Worcester, Massachusetts—not far from the company's headquarters in Canton.

Miami attorney Robert Zarco, of Zarco Einhoren Salkowski & Brito, warned the group that the company had turned its loss prevention department into a "profit center," according to an article in The Boston Globe. Zarco, who said he represents more than a dozen Dunkin' franchisees, told the paper that the company profits from terminating franchisees by collecting transfer fees and increased royalties from new franchisees.

Zarco says Horn's resignation was a direct result of the uproar over the tactics, and pushback by the victims. "I believe these draconian tactics have caught up with Steve Horn," Zarco told the blog Blue MauMau. "He has been a bully for years."

That's a snazzy blog there btw, BlueMauMau.

They also report -- just coincidentally -- that Bob's partner Robert Einhorn on Friday obtained a jury verdict against Miami Beach franchisor Donald Boroian and his Francorp development firm:

In summarizing the litigation, Einhorn previously stated, "Don Boroian and his company completely stepped out of the role of being a franchise consultant to become his client's partner, her joint venturer and her legal counsel. They actively participated in a scheme to defraud my clients." South Beach’s principal, Carol (Meyers) Brothers, brought the concept to Francorp to develop its franchising program. Boroian first met Brothers in 1978, when she brought her first concept, Pop-In-Maid Service, to him, a company she later took into bankruptcy.

Franchisor South Beach, a promoter and seller of health and lifestyle products, granted the exclusive rights to sell franchises in geographic areas to master franchisees. The lawsuit alleges that Boroian and Brothers induced people to buy into the system based on misrepresentations they gave about the company and its owner's checkered background.

Carol Brothers, originally named as a defendant but dropped after filing for personal bankruptcy, testified at last week’s trial for Boroian. While his own defense was basically that Brothers was the one at fault in the South Beach lawsuit, Brother’s testimony conflicted with his theory of defense. Einhorn said she admitted on the stand that she perjured herself and lied to the bankruptcy court. He said that is a serious offense. And she admitted to forging two letters, which Boroian had accused her of doing.

Again, this is a situation where the defendant reportedly offered nothing at mediation.

You can read the jury verdict form here.

Is Bob Zarco Really That Rich?

A tipster pointed me to Survivor producer Mark Burnett's new reality show, How'd You Get So Rich, starring the irrepressible Joan Rivers.

You can watch the entire first episode here.

The show features three rags-to-riches stories, where Joan visits their homes, looks at all their fancy stuff, and basically cracks a lot of jokes.

What's pertinent here is the third segment featured none other than franchise litigator Bob Zarco, his beautiful young second wife, and their phenomenal gazillion-dollar mansion on Biscayne Bay.

Come on, is Bob really that wealthy?

They have 12 bedrooms and 13 bathrooms, his wife has over 200 designer shoes in a massive room you cannot fairly call a closet, they have three boats (including a Cigarette), multiple cars (including a restored Model T), and a mural of Bob at sea gripping the wheel of a schooner, his wife down at his side, hand-painted on the ceiling of his home at a cost of $50k.

Not only that, but Bob comes across on the show as genuinely funny, self-effacing, and charming.

Hey, what can I tell you -- it's TV.

Bob Zarco and The Magic Baseball

So I heard there's going to be a video showing this morning to resolve the Ken Griffey Jr. "magic baseball" suit. How do you think it will come out? Will Mr. Franchise Bob Zarco back down? Who knows:

It's a bizarre tale of a singer and his wool hat, a man in a Sergio Mitre replica jersey who only goes by "Joe," grainy replays that seem to prove nothing, along with claims of foul, thievery and dishonesty.

"It's all really weird," Kimball said Thursday in an interview with The Associated Press. "It makes me sick to my stomach."

Kimball has filed suit in Miami-Dade County court, alleging, among other things, that "Joe" - identified as "John Doe, an individual a/k/a Joe and any party in control or possession of (the) Ken Griffey Jr. 600th home run baseball" - committed civil theft and civil battery against him.

Oh, and as if this all wasn't enough drama, the story got more odd Thursday: Kimball's side also says people - they weren't identified - at the stadium informed their office that the infamous "Joe" struck again Wednesday night, and wrestled Dan Uggla's game-ending grand slam away from a woman whose hands were on that ball, too.

"This guy is apparently a magnet," said Robert Zarco, one of the lawyers representing Kimball for free.

Marlins president David Samson said "Joe," who Samson said has authorized him to speak on his behalf, did not catch the Uggla ball.

But whether "Joe" caught it or not, Uggla left the stadium with his grand slam ball Wednesday.

That's nice -- Zarco is doing this for free. My own guess: this case is settling today.