Clap For the Wolfman

I'm sure by now you've seen the ubiquitous whocanisue.com ads.

What I didn't know, and learned from this Herald story, is the guy behind the site is none other than Miamian Curtis Wolfe, a lawyer familiar to many in the downtown legal community:

Whocanisue was launched in October 2008 by Curtis Wolfe, 46, a former in-house counsel at a large Miami firm. He's well aware that his site's name might offend some.

``It's definitely meant to be edgy,'' he said. ``We wanted to provoke people. Most lawyer advertising is unremarkable and not memorable. I would sit at home and see these ads asking if you're injured blah, blah, blah. There was no branding involved. We have a brand.''

The company's office on West Palmetto Park Road in Boca Raton has 22 employees, the majority in sales. Two hundred and fifty law firms are signed up as clients and about 25,000 people visit the site each month. Whocanisue.com also advertises in Texas, California, New York, Pennsylvania and other states.

``At this rate we are projecting to do $10 million-plus in 2010,'' said president Vincent Celentano, who helped finance the multimillion-dollar start up, which includes irreverent television spots featuring buxom nurses and a pack of lawyers chasing an ambulance.

Curtis is tweeting away under wolfman07, and his personal blog is here.

Also, all you FSU Law alums, check out what one of your classmates is (allegedly) up to.

I don't know if it's good or bad that his defense attorney is named "Cowboy Bob" (really!)

Yawn -- First Monday in October

So yes, it's the first Monday in October, and this year a feisty woman judge is joining the bench and will no doubt first battle closet gender bias and clash but then fall in love with the crusty, cantankerous old coot played by Walter Matthau.

Oops, there I go again -- I meant Clarence Thomas.

So for us business litigators is there anything interesting on the Supreme Court docket?

Surprisingly, yes:

The new Supreme Court term that begins Monday will be dominated by cases concerning corporations, compensation and the financial markets that could signal the justices’ attitude toward regulatory constraints at a time of extraordinary government intervention in the economy.

The justices’ decisions will be closely watched at a time when, constitutional scholars say, Obama administration initiatives are generating fundamental questions about the structure and limits of government power that will, in short order, reach the court.

“There will be major ways in which these interventions will produce legal and constitutional issues,” said Michael W. McConnell, a former federal appeals court judge who is now director of the Stanford Constitutional Law Center.

The term will provide important hints, said Richard H. Pildes, a law professor at New York University, to “how much the worst economic crisis since the Depression is going to shape the court’s general stance toward markets and economic regulation.”

Professor Pildes pointed to two cases in particular, one concerning the constitutionality of a regulatory board created in the wake of the Enron accounting scandal, the other about what role the courts should play in setting the compensation of advisers to mutual funds.

The decisions in those cases, he said, are likely to signal whether the court has become “more receptive to regulatory constraints on the market” in the wake of the financial crisis.

I think the most intriguing case deals with patent law and whether you can protect something that is purely process-oriented:

The case that has most transfixed the business community is Bilski v. Doll, No. 08-964, a patent dispute that addresses the consequential question of whether intangible business methods may be patented. A federal appeals court last year rejected Bernard L. Bilski’s attempt to patent a method of hedging risks in commodities trading, ruling that only processes tied to a particular machine or capable of transforming an object into something different can be patented.

A broad ruling could affect many aspects of the economy, notably computer software.

“Bilski seems to have the makings of a landmark decision in patent law,” said Pamela Harris, executive director of the Supreme Court Institute at Georgetown University.

I love how patent lawyers consider what they do interesting --talk about life in the bubble.

SFL Friday -- "I Award You No Points, And May God Have Mercy On Your Soul"

Poor Jeff Soffer -- if this keeps up Daddy is going to make him go back to elementary school and graduate each grade so he shows he has what it takes to run that big fancy company.

But at least he has his lawyers, I mean had his lawyers:

Lawyers defending the Fontainebleau Miami Beach against more than $60 million in construction claims dropped out of the case Thursday as contractors accused the resort of stall tactics amid a lack of cash.

Bilzin Sumberg, a prominent Miami firm, won court permission to drop the dozens of cases against South Florida's largest resort. A judge agreed to delay depositions and mediation until December, Fontainebleau's deadline to find new lawyers.

Fontainebleau executives accuse contractors of submitting padded bills and bogus fees from a renovation funded by a $640 million mortgage on the iconic oceanfront property. Bilzin lawyers declined to say why they were withdrawing, but some contractor attorneys called the move another example of Fontainebleau not paying its bills.

``Basically, I've been getting the run-around,'' Alexander Cvercko, who represents a construction staffing firm claiming nearly $1 million in unpaid bills, said during the morning hearing in Miami-Dade Civil Court. ``The Fontainebleau ran out of money, and just doesn't want to pay people.''

David Reimer, a lawyer for Fontainebleau's contractor, said the resort has legitimate disputes with fees and warned against drawing broad conclusions about Bilzin's departure or the unpaid contractors. ``There's more to these cases than the Fontainebleau doesn't have the money to pay,'' Reimer said. ``There are questions [to be] raised about these bills.''

I presume David is referring to the subcontractor bills, not those of Bilzin.

If Bilzen does wind up going after what may or may not be unpaid legal fees, they better be careful:

Miami attorney Warren Trazenfeld, who represents Whitney in the unpaid legal bills case, contends lawyers suing clients is "one of the top 10 stupidest things a lawyer can do."

He said almost every claim for unpaid legal fees is met with a counterclaim of legal malpractice. He said one will be coming against Rothstein.

"Most clients think the best defense is a good offense, and there's no better offense than a counterclaim for legal malpractice," Trazenfeld said.

Oy, such tsurris.

I don't know about you, but it's Friday and I'm getting ready to go decorate my Sukka, which as usual will be adorned with traditional festive items such as windsurfing gear, a Keytar, Bo Derek posters, dry Gin Gibsons and -- oh yeah -- an etrog.

So I hope everyone has a great weekend, filled with these very interesting professional women, the burning of exactly 970 calories, and lots and lots of clean sheets.

See you Monday!

Getting Chronic With Judge Jordan And/Or Drew Barrymore

Sorry I'm a little late with this morning's post, but I became transfixed by Drew Barrymore on the CBS Early Show. What a cutie, I totally understand why some poor schlub would make an entire documentary simply about trying to meet her.

Well, Judge Jordan just won't stay out of the news.

John Pacenti reports on yesterday's orders:

Two medical associations suing on behalf of poor children seeking basic health care from the state earned two critical victories in federal court.

U.S. District Judge Adalberto Jordan in Miami granted class action status Wednesday and denied the state’s dismissal motion.

The Florida Pediatric Society and the Florida Academy of Pediatric Dentistry claimed in the 2005 lawsuit that the state violates federal law by denying preventative health care to more than 1.5 million children.

Jordan said all Medicaid-eligible children under 21 who reside or will reside in Florida are part of the class. He rejected a claim by the state Agency for Health Care Administration that class-action status should be denied because not all class members are known at this time.

Actually, it's a pretty terse order for this Judge.

Stuart Singer was appointed class counsel, and the State was represented by Chesterfield H. Smith, Jr. as well as Marcos Jimenez from Kenny Nachwalter.

Magistrate Judge McAliley prepared an R&R recommending certification, which the defendants objected to.

I'm not too sure the Judge liked the number of objections:

Despite this precedent, the Defendants hurl a litany of objections at the R&R. Though the objections are impressive in number, they lack merit.

The defendants also argued a number of factual disputes exist which must be resolved at the certification stage, something the Judge also rejected:

The defendants argue that the R&R applies an incorrect legal standard to determine whether the proposed class satisfies Rule 23's requirements and that I should conclusively resolve factual disputes where there is conflicting evidence. As is evident from the legal standard applicable to class actions, conclusive resolution of factual disputes is not required. I may accept the plaintiffs’ allegations as true and may “consider the merits of the case to the degree necessary to determine whether the requirements of Rule 23 will be satisfied.” See Vega, 564 F.3d at 1265-66.

Finally, the Judge denied the defendants' motion for summary judgment, and though the order is also somewhat terse, it is lightened by the Court's Gonzaga analysis (a case right up there with Venetian Salami).

It will be very interesting to see where this one leads.

Law Updates for September 25, 2009

Hernandez, 34 FLW 1883, 4th DCA, Lewd and Lascivious molestation, Williams Rule evidence - Trial court erroneously applied "light more favorable to the state" standard making multiple Williams Rule violations. New trial required where the only substantial evidence offered to corroborate the victim's version of events was testimony of victim of the prior alleged abuse.

J.J.V., 34 FLW 1890, 4th DCA, exceeding scope of consent: Juvenile consent to search the vehicle did not extend to the search of locked console in the vehicle where deputy asked for the key. Juvenile told deputy that the key was not available and only his mother had the key, and deputy, in spite of that, located the key himself and gained access to the console. Violation of juvenile's expectation of privacy. General consent did not extend to locked console. Juvenile set limits to the consent. Unable to protest held in the back of the officer's vehicle.

Haygood, 34 FLW 1905, 1st DCA, DWLS, evidence. Copy of def's DL record which reflected license was suspended for failure to pay traffic fine on one occasion and for child support delinquencies on two occasions provided notice given but did not list def's address. Insufficient to show that def was aware his license was suspended on date he was arrested. Suspended because of financial obligations. The presumption of knowledge caused by entry in DHSMV records does not apply and state has to prove the defendant actually received notice, Brown, 764/741(4th DCA 2000).

Pacer Surfing Thursday -- Judge Jordan's Langbehn Ruling.

You may have seen the coverage regarding Judge Jordan's dismissal of the case involving a lesbian woman and her children who were not allowed to visit her dying partner's bedside at Jackson. The Herald's story is here.

The NYT did a nice wrap-up of Judge Jordan's ruling:

Ms. Langbehn sued Jackson Memorial Hospital in Miami, but hospital lawyers argued that the hospital did not have a legal duty to grant visiting rights when a patient was in the hospital’s trauma center.

Judge Adalberto Jordon (SIC!!!) of Federal District Court agreed with the hospital and dismissed the case.

“Decisions as to visitation must be left to the medical personnel in charge of the patient, without second-guessing by juries and courts,” Judge Jordon wrote. “A trauma unit is not like a regular hospital setting, and visitors may interfere with what medical personnel are trying to accomplish in a difficult environment.”

While Judge Jordon sided with the hospital’s legal argument, he was critical of the hospital’s failure to communicate with Ms. Pond’s family.

“The defendants’ lack of sensitivity and attention to Ms. Langbehn, Ms. Pond and their children caused them needless distress during a time of vulnerability,” the judge wrote. The hospital, he continued, “exhibited a lack of compassion and was unbecoming of a renowned trauma center; unfortunately, no relief is available for these failures.”

In a statement, Jackson Memorial said it did not restrict visitation based on sexual orientation.

Those with a PACER account can see Judge Jordan with an A's ruling here.

Kudos to Don Hayden at Baker & McKenzie who assisted Lambda Legal's Beth Littrell on behalf of Ms. Langbehn.

Reading the opinion, which as usual with Judge Jordan is personal (lots of references to "I") and thoughtful, you get a sense for how badly screwed up Florida's tort law is.

On the issue of visitation rights, Judge Jordan held as follows:

Although this is necessarily an Erie guess, I predict that the Florida Supreme Court would hold that doctors at a trauma unit do not have a freestanding legal duty, untethered to informed consent by a patient or health care surrogate, to allow visitation with a patient who is in critical condition and undergoing treatment – as was Ms. Pond from 3:30 p.m. to about 6:30 p.m. – or to allow visitation with a terminal patient – as was Ms. Pond from 6:30 p.m. to 11:30 p.m. – who is going to be transferred to a regular room where visitation will be permitted. It may sometimes make sense for doctors to allow close relatives to visit a patient inside a hospital, even in a trauma unit or an intensive care unit, unless they have medical reasons for not allowing visitation. Visitation may, in certain situations, even be therapeutic. But decisions as to visitation must be left to the medical personnel in charge of the patient, without second-guessing by juries and courts. A trauma unit is not like a regular hospital setting, and visitors may interfere with what medical personnel are trying to accomplish in a difficult environment, or bring with them germs or microbes that create other unexpected problems. A decision to not allow visitation in a trauma unit setting – where emotions are already at their breaking point and where lives may literally hang in the balance – does not create “unreasonable risks” of harm to the patient or to the putative visitors so as to establish a legal duty in tort.

In the event of appeal and should the 11th reverse on the question of duty, Judge Jordan also evaluated the claims for emotional distress damages under the "impact rule."

This evaluation basically requires the Judge to throw up his hands and wonder how the Florida Supreme Court might rule:

The Florida Supreme Court has noted that it is difficult to predict how it will apply (or not apply) the impact rule, see, e.g., Tanner, 696 So.2d at 708 (“[w]e recognize that there is a legitimate legal argument which can be directed against any particular legal theory upon which recovery in the instant case might be predicated and that the law does not provide a remedy for every wrong”), and several Justices on both sides of the impact rule debate have criticized the Court’s ad hoc approach. Compare, e.g., Abril, 969 So.2d at 208-09 (Pariente, J., concurring) (noting that Court’s “case-by-case approach as to the impact rule has done nothing to stabilize the law or to clarify when an exception will be recognized,” and calling for abrogation of impact rule), with, e.g., Gracey, 837 So.2d at 359-62 (Harding, J., dissenting) (criticizing ad hoc approach and advocating adherence to impact rule). The short of the matter is that there is no good way to figure out whether or not the Florida Supreme Court would apply the impact rule in this case. Predicting the Florida Supreme Court’s future approach to the impact rule is even more perilous given that the Court now has four new Justices.

I love the simplicity and understated, matter-of-fact way the Judge lays out how messed up the jurisprudence is in this critical area of the law.

Our condolences go out to Ms. Langbehn and her family.

You'll Be Warm In the Arms Of the Mayor of Simpleton.

Any Glenn Beck fans out there?

(I'm not just referring to swlip).

Well, either way my friend Marc Randazza of The Legal Satyricon is representing the owner of the website DidGlennBeckRapeAndMurderAYoungGirlin1990.com in a domain dispute filed by Glenn Beck before the World Intellectual Property Organization (WIPO).

I know, the WIPO? I had never heard of it either, but best I can tell it's some kind of one-world socialist domain enforcement entity funded jointly by the UN, Bill Ayers, and Roman Polanski.

You can read Glenn's WIPO complaint here.

Since it's possible Glenn Beck fans may not also be fans of Gilbert Gottfried, let me explain -- the name of the disputed website is a nod to a routine Gilbert did at the roast of Bob Saget, where he repeatedly referred to.....yes, Saget's rape and murder of a young girl in 1990.

The phrase is now a well-known "internet meme" which if you don't understand ask one of your kids or grandkids to explain it to you.

The complaint alleges, among other things, that Beck fans may be confused by the website.

Marc's response is brilliant, and I urge everyone to take a look. In it he explains the social, cultural, and political background behind the site, the First Amendment implications of Beck's attack on what is clearly political satire, and the utter idiocy of Beck's claim of confusion.

There are too many highlights in Marc's brief, but this should give you a taste:

We are not here because the domain name could cause confusion. We do not have a declaration from the president of the international association of imbeciles that his members are blankly staring at the Respondent’s website wondering “where did all the race baiting content go?” We are here because Mr. Beck wants Respondent’s website shut down. He wants it shut down because Respondent’s website makes a poignant and accurate satirical critique of Mr. Beck by parodying Beck’s very rhetorical style. Beck’s skin is too thin to take the criticism, so he wants the site down. Beck is represented by a learned and respected legal team. Accordingly, it is beyond doubt that his counsel advised him that under the First Amendment to the United States’ Constitution, no action in a U.S. Court would be successful. See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Accordingly, Beck is attempting to use this transnational body to circumvent and subvert the Respondent’s constitutional rights.

I also really enjoyed Marc's patient and thorough explanation of the evolution of "internet memes" and how God does not really kill kittens when....well, you know the rest.

Have fun betraying your alleged principles, Mr. Beck.