Florida Supreme Court Clarifies Scope of Non-Final Review!

First off, congrats to Judge Thomas for his nomination as a federal judge in the SD FL.

A great pick!

And here's Senator Leahy on the clogged federal judicial nomination process:

If we do not find a solution to both the vacancy crisis and the threat to judicial resources, it will be harder for Americans to obtain justice in our Federal courts.  Our courts are already overburdened, and the sequester will result in cuts that will force courts to hear fewer cases, which means that court proceedings will be delayed even longer.  This will be especially damaging in civil cases, where there are already over 40,000 cases that have been pending for more than three years.  Sequestration cuts could even result in the suspension of civil jury trials.  Even more alarming, is what is at stake in the criminal context.  If probation and pretrial services offices are downsized or closed, Federal courts and their staff will be unable to properly supervise thousands of persons under pretrial release and convicted felons released from Federal prisons.  It is critical, then, that we work together.

Gee, who in general benefits from delay?

(h/t Glenn Sugameli)

In other news, the Florida Supreme Court again seeks to clarify the scope of appellate court review of non-final orders, this time in a case involving a claim of immunity by Citizens Property Insurance:

With this backdrop, we address the use of extraordinary writs to review non-final orders not designated as appealable under rule 9.130(a)(3). We first decide the certified conflict issue involving the propriety of utilizing a petition for writ of prohibition to seek interlocutory review of a non-final order denying Citizens’ motion to dismiss. We next address whether a writ of certiorari is appropriately used under these circumstances. Finally, consistent with how this Court has proceeded when this type of issue is presented, we consider whether we should amend rule 9.130(a) to create a new exception to allow for review of a non-final order denying a motion to dismiss based on a claim of immunity asserted by a state-created entity.

Don't you love the textbook way Judge Pariente framed the issues?

Finally, we have a bunch of happy lawyers in South Florida.

(For now.)

11th Circuit Affirms Judge King in Checking Overdraft Arbitration Waiver!

Finally Judge King gets affirmed in a Checking Overdraft arbitration decision, this time in a situation where the bank did not move to compel arbitration until after the Supreme Court's Concepcion opinion:

The district court twice invited Wells Fargo to move to compel arbitration, first in November 2009 and again in April 2010, but Wells Fargo declined those invitations. A year later, Wells Fargo reversed course and moved to compel arbitration soon after the Supreme Court held in AT&T Mobility LLC v. Concepcion, __ U.S. __, 131 S. Ct. 1740, 1753 (2011), that the Federal Arbitration Act, 9 U.S.C. § 1 et seq., preempts state laws that condition the enforceability of consumer arbitration agreements on the availability of classwide procedures. The district court denied the motion based on waiver. Wells Fargo argues that it did not waive its right to compel arbitration because it would have been futile to move to compel arbitration before the Supreme Court decided Concepcion. But we conclude that Concepcion established no new law. Because we conclude that it would not have been futile for Wells Fargo to argue that the Act preempts any state laws that purported to make the classwide arbitration provisions unenforceable, we affirm the denial of its motion to compel arbitration.

Oops!

Hopefully the decision to not seek arbitration was made by Wells Fargo's in house counsel.

Your Friday Morning Digital Dump!

Hi there, it seems mighty quiet around here, let's see what there is to discuss in the District:

Ms. Intrepid reports that Jeremy Alters will be paying $600k to resolve one of his checking overdraft origination lawsuits:

Miami plaintiffs attorney Jeremy Alters has reached a $600,000 settlement in one of two cases brought by Argentinian law firms claiming they originated the theory behind a wide-ranging class action lawsuit on bank overdraft fees.

A similar case brought by Raponi & Hunter Abogados of Argentina is still pending, with Miami-Dade Circuit Judge Jennifer Bailey due to rule on a motion for summary judgment soon.

I found this part amusing:

Alters strongly denies he got the idea for the litigation strategy from the Raponi lawyers. He said they made an unrelated suggestion about a bank class action, but he got the idea for the overdraft case after finding three similar cases had been filed in California. He said he offered Raponi a 6 percent cut of his fees in February 2011, something he now calls "a mistake."

So there were three existing California cases, which gave you an "idea" to file a fourth?

Good idea!

Also, which part of the 6% offer was a mistake -- the offer, or the percentage (should have stuck with 5)?

The Miami Herald says vote NO on Amendment 5:

Amendment 5 would inject the Senate into the selection process of justices.

There’s no need to infuse more politics into a process that, despite some warts, has worked well the past 40 years after Florida voters gave the nod to the JNC process and retention elections for appellate judges. This ended decades of corruption at the highest levels.

The proposed amendment also would allow the Legislature to repeal a JNC rule or procedural court rules — say, deadlines for filing court documents or risk having a case tossed, or time limits to ensure a constitutional requirement for a “speedy trial” — by a simple majority vote.

Right now, such rules can be changed by the Legislature only by a two-thirds vote, thus ensuring a check but also a balance on the powers of each branch of government.

Amendment 5 simply is a political power play by Tallahassee pols backed by special interests attempting to change the balance of power. The Miami Herald recommends: Vote No.

Hey, not bad for the Herald.

Scott Rothstein and the worst product placement ever:

The uncle said he had no idea there was trouble brewing when he boarded the flight with Rothstein and a Boca Raton restaurant manager who Rothstein was bringing along as a translator.

When they landed in Casablanca, the three went to check into a luxury hotel with Rothstein asking his uncle to put the tab on Boockvor's credit card. The total hotel bill for their stay would end up being about $30,000, Boockvor said in a June deposition.

They dined at McDonald's that first night, then spent the next two days looking at apartments and houses for rent, Boockvor said. He came to believe that Rothstein was considering buying a nightclub, he said.

"Day Three is when all hell broke loose," Boockvor said.

Exactly -- we call that the "Mickey D Effect" (though it usually doesn't take three days).

Read more here: http://www.miamiherald.com/2012/10/03/3032796/dont-tread-on-judiciary.html#storylink=cpy

Judge King Reversed Again on Checking Overdraft Arbitration Provision!

Judge King isn't having too much luck before the 11th Circuit on these bank arbitration provisions.

Here's another reversal, this time involving BB&T and North Carolina law:

We affirm the district court’s determination that the unconscionable cost and-fee-shifting provision forms a part of the arbitration agreement, and reverse the district court’s refusal to sever unconscionable sentence. We also reverse the district court’s determination that the set-off provision is unconscionable. Therefore, we reverse the district court’s dismissal of BB&T’s motion and remand it with instructions to sever the unconscionable clause and compel arbitration.

I guess it's all up to Senator Franken to get his Arbitration Fairness Act passed (don't hold your breath).

Gaze at the Alleged Financing of Jeremy Alters' Firm!

 According to this blockbuster charging lien filed by Scott Schlesinger in the Checking Overdraft litigation, Scott has pumped more than $2 million dollars into Alters' firm, allegedly in exchange for a sizable piece of his high-profile cases:

Since May 10, 2012, Schlesinger has provided financial support in the amount of $2,140,355.00 for the benefit of the Alters Law Firm, P.A.

Yowza!

I also like this personal guarantee allegedly signed by Bruce Rogow:

Bruce Rogow hereby acknowledges that he has read this Agreement. In his role as special counsel to the Alters Law Firm and lead counsel in the Bank Overdraft Multidistrict Litigation case, Bruce Rogow will not take any action which would violate the spirit of this Agreement and he will support the application of the Alters Law Firm to the common benefit fund in the Bank Overdraft Multidistrict Litigation case for the fee division as contemplated herein [emphasis added].

This promises to be very interesting if these boys can't work this out themselves.

Your Tuesday Digital Dump.

 
Hi kids, a lot happening here in sunny South Florida.

Let's get right to it:

1.  Once again The Garvinator delves into the law, this time crisply analyzing the complicated 200+ page health care opinion thusly:  it reminds him of that time Bubba lied about his schmeckle!

(I'm not kidding.)

2.  This has nothing to do with South Florida, but a Manhattan deli can properly claim ownership of the "Heart Attack Sandwich" throughout all of New York (h/t Random Pixels):

Before filing suit, the Heart Attack Grill sent a cease-and-desist letter claiming the sandwiches — the Instant Heart Attack features two latkes filed with corned beef, pastrami, turkey and salami– violated its trademarks for its various “Bypass” burgers.
The “Quadruple Bypass Burger,” by comparison, features four half-pound beef patties, eight slices of American cheese, a whole tomato and half an onion. It weighs in at a whopping 8,000 calories.

Come on, even my mother ("eat, you're too skinny!") would not try to serve me this sandwich:

Good thing there's no obesity epidemic in this country!

3.  11th Circuit opinion upholding bank waiver of arbitration provision in Checking Overdraft litigation by submitting issue to Judge King -- oops!

4.  Spencer's breakfast club interviews criminal defense lawyer Scott Kotler:

Spence, you know how those pictures at Disney World when we were kids always had a big palm tree behind our heads?

Just saying.....

Nanny Not Invited to Jeremy Alters' Obama Fundraiser!

 Yes yes yes we can?:

When trial lawyer Jeremy Alters hosts an April 10 fundraiser for President Barack Obama at his Golden Beach home, it'll be like walking on to the set of a South Florida telenovela.

There's a spurned nanny. A hint of poison and betrayal. A multi-million case against a bank. Allegations of financial impropriety. Cut-throat lawyers. A bar complaint. An ongoing lawsuit. A lie-dector test. The forced sale of tony Colorado homes, and a $2.2 million loan made with a handshake.

This has been Alters' life for the past few years.

"Ever since I took on the banks, this all happened," said Alters, 41, who initiated a suit against Bank of America that resulted in an initial $410 million settlement.

But no spurned nanny and mere suspicious food poisoning can bring down Alters:

"It's going to take more than a nanny to bring me down," he said.

Hey, isn't that a Pierce Brosnan line from Mrs. Doubtfire?

ad more here: http://miamiherald.typepad.com/nakedpolitics/2012/03/the-nanny-diaries-obama-fundraisers-squabble-with-au-pair-sounds-like-miami-soap-opera.html#storylink=cpy

Read more here: http://miamiherald.typepad.com/nakedpolitics/2012/03/the-nanny-diaries-obama-fundraisers-squabble-with-au-pair-sounds-like-miami-soap-opera.html#storylink=cpy

"Beliefs" Are Not "Personal Knowledge."

Someone tell all the politicians and pundits who work off their "gut":

In reviewing summary-judgment affidavits and declarations, the Eleventh Circuit and other courts have held that similar statements of “belief” or “understanding” do not reflect personal knowledge and should be disregarded.

 They're also not relevant for the same reason:

Because Rosen has not shown any personal knowledge about whether the parties entered into an arbitration agreement, his statements about that subject are also irrelevant.

How refreshing!

In other news, a few tipsters advise of another big checking overdraft settlement.

If the "anticipated" becomes the reality -- congratulations!

Oh yeah, Super Bowl yada yada yada, commercials M&Ms yada yada yada (ok, it was a pretty good game and Madonna rocked the house).

Checking Overdraft Settlement Approved!

Judge King's 59 page order here.

Julie Kay gets a few good quotes from Podhurst here.

Drinks on him (I certainly hope).

Judgment Day!

 Hi folks, so Judge King approved the BoA checking overdraft settlement.

Now the fun begins!

And Judge Moreno ruled against Watson Pharmaceuticals in a big patent infringement case.

Plus I only have 14 judicial fundraisers to attend this week.

Gosh it's slow around here -- doesn't anyone have some tips for your friendly neighborhood blawger?

How Many "Surs" Are in a Reply?

Good morning!

Let's see what's happening this a.m.

1.  Magistrate Judge Turnoff denies unopposed motion for leave to file "Sur-Sur-Reply" in anonymous blogging case before Judge Cooke.

You know what they say:  replies are like Martinis -- one is not enough and three is too many.

2.  Watch your favorite or most detested Supreme Court Justice actually deign to testify before the rubes in Congress.  Details here.

3.  Cecil B. DeMille-like hearing scheduled in Checking Overdraft this afternoon before Judge King.

DeMille-like is better than Hitchcockian (I think?).

Judge King Denies (Again) Checking Overdraft Arbitration Agreements.

11th Circuit, 11th Schmircuit, that's what I always say.

And I see I'm not alone.

On Friday in the closely-watched Checking Overdraft litigation, Judge King has denied renewed motions to enforce bank arbitration agreements in the wake of the Supreme Court's Carlos Concepion decision, finding them both procedurally and substantively unconscionable.

Here's what plaintiff's counsel Aaron Podhurst had to say:

"WOOOOHOOO!!!!"

Ok, I'm paraphrasing; here were his exact words:

"Concepcion only said that you don’t knock out arbitration automatically,” Aaron Podhurst, the lead plaintiffs’ lawyer, said in an interview. “Concepcion said it’s a fact issue, so Judge King applied the facts. We have Judge King finding that in four different states, the arbitration agreements are unconscionable.” 

In other post-Labor Day news, Governor Scott has decided he really hates "regulations":

“Every dime a company spends on regulations is a dime they add to what you care about as a purchaser of a product or service,” he said. “You hear the stories. Why do we have to do this? What’s the benefit?

Exactly!

Why do I have to check for razor blades when I sell apples to the public schools?

Who can really keep track of the permissible amounts of rat droppings in Rice-A-Roni?

Why do we have to do this?  What's the benefit?

Checking Overdraft -- I Move to Strike Your Motion to Strike My Motion!

In light of the recent Supreme Court and 11th Circuit rulings on arbitration provisions, many of the checking overdraft bank defendants have asked Judge King to reconsider his rulings denying their motions to compel arbitration.

Naturally, the plaintiffs have responded like all good plaintiffs should -- by aggressively attacking the very motion to reconsider and moving to strike the reconsideration motion as improper.

Turns out, however, that it may be improper to move to strike a motion to reconsider as being improper:

No relief is available to Plaintiff under her Rule 12(f) Motion to Strike. First, and most important, a motion to strike applies only to pleadings, which does not include motions. See Santana v. RCSH Operations, LLC, 2011 U.S. Dist. LEXIS 21814, *2–4 (S.D. Fla. Feb. 18, 2011); see also Croom v. Balkwill, 672 F. Supp. 2d 1280, 1285 (M.D. Fla. 2009) ("To object to the substance contained in a motion, the opposing party should raise such objections in the material it submits in opposition to the motion, rather than in a motion to strike."); Mann v. Darden, 2009 U.S.Dist. LEXIS 63044, *2 (M.D. Ala. July 6, 2009); Pimentel & Sons Guitar Makers, Inc. v. Pimentel, 229 F.R.D. 201, 203 (D.N.M. 2005) ("There is no provision in the Federal Rules of Civil Procedure for motions to strike motions and memoranda."); Phinney v. Paulshock, 181 F.R.D. 185, 207 (D.N.H. 1998); Weiss v. PPG Indus., Inc., 148 F.R.D. 289, 292 (M.D. Fla. 1993); 2-12 Moore's Federal Practice, Civil § 12.37 (2011) ("Only material included in a 'pleading' may be the subject of a motion to strike, and courts have been unwilling to construe the term broadly. Motions . . . may not be attacked by the motion to strike."). Plaintiff cites no authority to the contrary. Thus, Plaintiff's Motion to Strike BB&T's Renewed Motion is not permitted and the Court should deny the Motion to Strike for this reason alone.

I hope the plaintiffs reply by moving to strike the response to their motion to strike, which will be met with a motion to strike their motion to strike D's response to their motion to strike.

And then come the reconsideration motions.

Welcome to federal court!

Tom Scott Declares Impasse in Checking Overdraft Suit Against Chase Bank.

As the prospect of the application of the Supreme Court's Concepcion decision on arbitration clauses hangs over their heads, the plaintiffs and JP Morgan Chase Bank are unable to settle their claims before mediator and former federal judge™ Tom Scott, who has declared an impasse.

You can read the plaintiffs' response to the arbitration motion here.

The response centers largely on waiver and all the litigation conduct undertaken by Chase over the last two years, and seeks to distinguish the arbitration provision at issue in Concepcion from the one utilized by Chase here.

Judge King has already interrupted merits discovery but has authorized limited arbitration-related discovery against co-defendant US Bank.

Looks Like Jeremy Alters Has Finally Made It!

And by "made it," I'm not referring to his firm's role in the recent BoA checking overdraft settlement preliminarily approved by Judge King the other day, I'm talking about getting sued for a percentage of the fees that may be recovered down the road:

As an exhibit, the suit includes a copy of a contract between Campos and Alters' former firm, Alters Boldt Brown Rash Culmo. The agreement stipulates Campos agreed to work exclusively for Alters to develop potential cases.

"Campos brokered significant relationships on behalf of … Alters ... in Latin America such as top members of the government, law firms, attorneys and other noteworthy persons who were instrumental in the origination of cases pursued by the Alters law firm as a result of its agreement with Campos," the complaint said.

Hmm, these things don't ordinarily end too well for anyone involved.

This part isn't too good either, if true:

Campos y Asociados also alleges it originated the Bank of America lawsuit pending before U.S. District Judge James Lawrence King and is entitled to a 25 percent origination fee. Alters acknowledged the class action was originated by Campos in an email Aug. 21, 2008, according to the suit.

Alters has hired Andy Hall, who has moved to dismiss the suit claiming these are foreign attorneys unauthorized to practice law in Florida, and thus the contract is illegal or unenforceable?

If so wouldn't that leave a quantum meruit or unjust enrichment-type claim?

Tale of Two Headlines: Checking Overdraft Update...or Herman Russomanno Looked White Hot!

So who else saw Herman Russomanno looking quite dapper at the Heat game last night?

LOVE the white jacket and red hankie!

In other SD FL news, the plaintiffs in the Checking Overdraft litigation, in light of new bank motions to arbitrate filed after the Supreme Court's Concepcion decision, are arguing waiver (of course) but also that the Supreme Court didn't fundamentally change the law in the 11th Circuit:

Simply put, Concepcion did not change the law of arbitration enforceability in the vast majority of the relevant states. For example, Concepcion changes nothing in states such as Florida, Georgia, Texas and others, where certain Plaintiffs reside. These states have never adopted a rule even closely resembling Discover Bank’s per se rule against class action waivers.

What do you think -- does this argument hold water?

Checking Overdraft Cases Thrown into Turmoil!

We've previously reported on the numerous orders entered by Judge King finding various banks' arbitration clauses to be unconscionable.

Those orders are now highly suspect in light of the Supreme Court's Concepcion opinion last week.

Already the 11th Circuit has vacated at least five of these orders:

After oral argument in this case, the United States Supreme Court decided AT&T Mobility LLC v. Conception, No. 09-893, 2011 WL 1561956 (April 27, 2011). The district court’s order denying the motion to compel arbitration is VACATED, and this case is remanded to the district court for reconsideration in light of the Supreme Court’s opinion.

And Wells Fargo immediately moved before Judge King to have the case against it dismissed for lack of jurisdiction.

How this will impact the $410 million BoA settlement announced back in February is anyone's guess.

Judge King Finds Another Bank Arbitration Clause Unconscionable.

And this one had a belts-and-suspenders Delegation Clause (sneaky!), which he also found unconscionable.

For good measure he found this blog unconscionable, but can anyone really argue that point?

BREAKING -- BoA Checking Overdraft Settles HUGE!

Good to see all that TARP money going to a good place:

Plaintiffs and Bank of America, N.A., through their respective undersigned counsel, hereby notify the Court that on or around January 27, 2011, they executed a Memorandum of Understanding evidencing an agreement in principle, under which Bank of America will pay the total sum of four hundred ten million and 00/100 dollars ($410,000,000.00) in exchange for a full and complete release of all claims brought against Bank of America in this multidistrict litigation.

Aaron, your timing is impeccable as always.

Bobby Gilbert Leaves Alters for Grossman Roth.

Gilbert Grossman Roth

The turmoil at Jeremy Alters' firm continues as class action litigator Bobby Gilbert is apparently leaving for PI powerhouse Grossman Roth.

This according to Judge King who is supervising the checking overdraft MDL, and who entered an order noting Gilbert's move to his new firm, creating a new position for Bobby as "Coordinating Counsel" and appointing Grossman Roth to the plaintiff's executive committee.

The Court also appointed war horse (ed. note -- this is a compliment!) Aaron Podhurst to serve as co-lead counsel with Bruce Rogow.

Congrats on the move Bobby!