Gaze Upon Judge Cooke's Scott Rothstein/TD Bank Sanctions Order!

Nice to see Rule 37 get a little teeth.

Here's part of the order dealing with GT and its lawyers:

The individual Greenberg Traurig attorneys’ handling of this case left much to be desired. The document review and production appears to have been conducted in an almost ad hoc manner. The attorneys failed to adequately conduct document searches in response to Coquina’s counsel’s requests and this Court’s inquiries. The attorneys produced key documents on the eve of trial, and in the midst of trial, because of failures in their document search and production procedures. Although I recognize that the attorneys were dealing with a high volume of documents, the amount of production errors that occurred throughout these proceedings were simply incredible, especially coming from lawyers in a well regarded firm like Greenberg Traurig, which in many ways earns its reputation from being able to litigate large, complex actions.

Having reviewed the evidence, however, I do not find that sanctions, including a finding of contempt, are warranted against any of the individual attorneys. The evidence does not support a finding that any of them acted willfully or in bad faith. Although they certainly acted with negligence, I am not prepared, on this record, to enter sanctions personally against them.

So I guess that's a partial victory (at least for the local GT lawyers).

UPDATE:  I love my readers:

"At Some Point in Time, Mr. Jimenez, We Are Going to Have to Talk About It."

That's Judge Cooke to TD Bank lawyer Marco Jimenez, over sanctions motion #5 ("I'll have the #5 with egg drop!") which may involve up to 2600 alerts on Scott Rothstein's accounts that may not have been turned over to plaintiff's counsel David Mandel.

Oy.

That brings up a rant -- is it just me, or is there a general erosion in our communal sense of responsibility to perform acts of civility?

I'm not referring specifically to issues such as turning over bad documents, but more generally gestures like opening doors for frail or pregnant women, or helping someone get their carry on baggage above their seat, small acts like that.

We see that often in our interaction with other lawyers, a general trickling-down of incivility that inevitably winds up affecting how you practice or deal with others.

I recently read of a civility project among elected officials:

 In 2009, author Mark DeMoss launched a Civility Project asking every sitting governor and member of Congress to sign a pledge of civility agreeing to three statements: “1. I will be civil in my public discourse and behavior; 2. I will be respectful of others, whether or not I agree with them; and 3. I will stand against incivility when I see it.” Amazingly, only three elected officials signed it—Sen. Joe Lieberman, Rep. Frank Wolf, and Rep. Sue Myrick. 

Funny thing is, I think Joe "The Weeper" Lieberman is mostly a jerk!

In other news, Wargo French has moved into the old Richman Greer space:

Atlanta-based Wargo French launched its Miami office last August, headed by former long-time Greenberg Traurig shareholder Lori Sochin. Ten associates have been hired including Simon Ferro Jr., a former Lewis Tein lawyer.

The 50-lawyer firm, which also has a Los Angeles office, targeted Miami for growth based on client demand, said managing partner Joe Wargo. Wargo French is a full-service law firm focusing on complex commercial litigation, financial services litigation, labor and employment, class action litigation, creditor's rights and bankruptcy, commercial real estate, construction, general corporate and securities law, among other specialties.

Ok, sounds like a good firm and I wish them well, but what a great name -- "Wargo French" -- that's got to be a character from an old Coen Brothers movie?

Bankruptcy Nerds: This Opinion Could Mean Something to Somebody!

 
I bless my lucky stars every day I don't have to think about bankruptcy court and the odd quirks of its jurisdictional reach, the appropriate scope of and standard for district court review, and what can and can't be heard there and why.

(We have geeks skilled bankruptcy specialists for that.)

That's why when I read this important opinion from Judge Marra (involving Judge Stettin, the Rothstein bankruptcy, and TD Bank), I promptly forgot all about it and went to lunch.

Then, as my food was digesting nicely, I felt a sudden rumble in my belly and remembered I forgot to write anything at all about it.

So take that sucker off my bucket list!

TD Bank Takes Another Rothstein Hit.

 All the bad headlines for TD Bank involving Scott Rothstein must really interfere with their big outreach efforts in South Florida, and this order from Judge Marra in yet another investor suit can't help:

Through their Complaint, Plaintiffs allege that “Defendant intended Plaintiffs to rely upon its misrepresentations,” Complaint at ¶ 53 (emphasis added), and “Plaintiffs relied on Defendant’s misrepresentations [and omissions] and engaged in the Transactions based upon the misrepresentations and Plaintiffs would not have engaged in the Transactions had he known the truth.” Complaint at ¶ 54. The Court finds that these two statements adequately plead “justifiable reliance” as required by Florida law. The Court will not dismiss an action simply because Plaintiffs fail to use “magic words” when the pleading is otherwise sufficient. See Cabrera v. Martin, 973 F.2d 735, 745 (9th Cir. 1992) (“We therefore find no reason to reverse the district court on the grounds that the appellees failed to plead § 1983 as a basis of their complaint or because they failed to use the magic words ‘under color of state law’ . . .”) However, in an abundance of caution, the Court will grant Plaintiffs’ request to amend their Complaint to include the word “justifiable.”

Defendant also alleges that Plaintiff has failed to meet the heightened pleading requirements of Rule 9(b). After carefully reviewing the Complaint, the Court finds that Plaintiffs’ claim for negligent misrepresentation satisfies the heightened pleading requirements of Rule 9(b). Plaintiffs expressly allege that Frank Spinosa (“Spinosa”), TD Bank’s Vice President of Operations, misrepresented TD Bank’s verification of the ultimately fictitious plaintiffs that were the source of funding for the structured settlements at the heart of Rothstein’s ponzi scheme. Complaint at ¶ 35-41. Plaintiffs assert the date (September 24, 2009), method ofommunication (telephone), and specific content of the conversation between Spinosa and Plaintiffs’ representatives. Complaint at ¶ 35-41. Plaintiffs also allege specific quotations advanced by Spinosa intended on assuring Plaintiffs’ representatives of the validity of Rothstein’s ultimately illegitimate scheme. Complaint at ¶ 39-41. These allegations are sufficient to avoid dismissal at this stage of the proceedings.

 Judge Marra did dismiss two other counts but granted leave to replead.

Rhett Traband from Broad & Cassel represents the plaintiff.

Boilermakers anyone?

Ancillary Rothstein Proceedings Churn On.

TDBankorder

The latest Rothstein news comes from Judge Cooke, who denied TD Bank's motion to stay a civil suit pending before her on the grounds that TD's former Regional Vice President, Frank Spinosa, is about to be indicted and therefore TD can't mount an effective defense:

TD Bank seeks a stay of this civil action pending the outcome of criminal proceedings against Frank Spinosa, its former Regional Vice President. The Government has not indicted Mr. Spinosa. Shortly before the close of fact discovery in this case, TD Bank deposed Plaintiff’s corporate representative, and several of its partners and agents. Two of Plaintiff’s deponents testified about an alleged September 25, 2009 meeting and an alleged August 17, 2009 phone call where Mr. Spinosa made false representations to Plaintiff. The crux of TD Bank’s Motion is that these are new allegations, and that it cannot defend itself against them because Mr. Spinosa has invoked his Fifth Amendment privilege against self-incrimination. Thus, TD Bank seeks a stay of these civil proceedings.

Judge Cooke doesn't buy it:

In light of the allegations in Plaintiff’s Complaint, Plaintiff’s deponents’ testimony that Mr. Spinosa made misrepresentations in an August 17, 2009 phone call and in a September 25, 2009 meeting can hardly be characterized as “new allegations.” This case should not be stayed merely because TD Bank waited until just before close of fact discovery to take the deposition of Plaintiff’s corporate representative, agents, and partners. That Mr. Spinosa would invoke his Fifth Amendment privilege is also not new information. Mr. Spinosa invoked the privilege on June 10, 2010 and December 3, 2010, in two other cases, and he invoked the privilege in a February 17, 2011 deposition in this case.

Hmm, not to put too fine a point on it.