Let's Look At Stu Rosenfeldt's Campaign Contributions!

This part of John Pacenti's DBR article this morning was interesting:

The government confirmed through its filing that RRA employees accepted large work-related bonuses shortly after being instructed to make large campaign contributions to political candidates.

“Such conduct was designed to conceal the true sources of the contribution and to illegally circumvent campaign finance laws,” according to the filing signed by Sloman and three assistant U.S. attorneys.

When asked about that yesterday, Stu (who still hasn't learned to keep his pupik shut) said the following:

Rothstein law partner Stuart Rosenfeldt gave $150,000 to political committees to support Republican Broward Sheriff Al Lamberti and Democratic challenger Scott Israel last year. On Tuesday, Rosenfeldt said that came from his money, but he declined to say whether Rothstein directed him to make the contributions.

``I'm not going to comment on that stuff,'' Rosenfeldt said. ``Scott ran the place like a rooster. I don't think it's prudent to answer. It was my money.''

Stu, if it's "not prudent to answer" than why are you talking to the press?

Also, why then answer with two potentially contradictory things -- Scott "ran the place like a rooster" but "[i]t was my money."

It's not hard to find out more about political contributions on these here tubes.

Here are Kim's 2008 federally-reported contributions (about $100k), and here are Russell Adler's contributions.

Hmm, Russ donated $124k to the McCain-Palin Victory 2008 (barf) on October 21, 2008, whereas Stu donated $57k to the McCain-Palin Victory 2008 a whole six days later, on October 28, 2008.

Earlier, Russ donated $80k to the McCain-Palin Victory 2008 on June 12, 2008, whereas Stu donated $140k to the McCain-Palin Victory 2008 a whole two weeks before that, on May 28, 2008.

(For those keeping a scorecard, big bad Scottie donated $37.5k to the McCain-Palin Victory 2008 on October 14, 2008, and another $70k back on May 2, 2008.)

It's nice when partners share the same political interests, right?

BTW, in the prior Presidential campaign cycle, back in 2004, Stu donated a sum total of $5k to all candidates and campaign committees (oy with this Friends of Connie Mack).

By comparison, Scott donated a whopping $7.5k back in 2004.

What a difference four years make.

Homeowner Gets Free House after IndyMac Bank Fails to Mediate in Good Faith

Daily Business Review, writer Vesselin Mitev reports that Suffolk County, N.Y. Judge Jeffrey A. Spinner, has judicially canceled the mortgage on homeowner Dana Yano-Horski’s home. The action was taken to sanction the lender’s “Unconscionable, vexations and opprobrious conduct” in its attempt to foreclose on the property.

Under applicable state law IndyMac was required to mediate with the homeowner before competing a foreclosure action. Judge Spinner was quoted as finding it “deeply troubling” that IndyMac spurned what would have been a “win-win” solution for all parties. Instead of negotiating the bank engaged in “harsh, repugnant, shocking and repulsive” treatment of the homeowner.

After the homeowners attempts to obtain mediation Judge Spinner ordered a bank representative to attend a mediation conference in September. At the mediation IndyMac loss mitigation manager Karen Dickinson “made it abundantly clear that that no form of mediation, resolution or settlement would be acceptable” to the bank.

The bank asserted that the borrower had previously defaulted on a forbearance agreement. The Court found that IndyMac never sent out the forbearance agreement. Judge Spinner noted “Defendant, through plaintiff’s duplicity found herself in the unique and uncomfortable position of being placed in default of the ‘agreement’ even before she had received it.”

Judge Spinner did more than just dismiss the lawsuit. If the lawsuit was dismissed without prejudice IndyMac could have re-filed the lawsuit and repeated in wrongful conduct. Judge Skinner concluded that the original principal of $292,500 “should be canceled, voided, and set aside.” The Judges order bars any attempt to collect on the note.

The Foreclosure Lawyers at Shuster & Saben applauds Justice Jeffrey Skinner’s courage. In Florida several counties including Dade County, Palm Beach County, Indian River County, and Brevard County have implemented mandatory mediation when the subject property is the homeowner’s primary residence. In a significant number of cases, particularly when homeowners are unrepresented some lenders attempt to avoid mediation or fail to mediate in good faith. In both Dade County and Indian River County our firm has moved for sanctions against lenders who fail to mediate in good faith.

3d DCA Watch -- Civil Law Day In The Bunker!

Boy did I get excited when I saw all the civil opinions released today!

Then I read some of them.

Oh I kid the 3d -- they're not all bad.

Let's take a look:

Hialeah Automotive v. Basulto:

This is actually a well-reasoned opinion by Judge Cope dealing with an arbitration clause in an auto purchase that would arguably defeat the remedial purposes of FDUTPA.

Judge Cope goes through the procedural and substantive unconscionability test and summarizes the evidence, which consisted of an inadequate explanation of the clause (written in English) in Spanish to Spanish-speaking plaintiffs:

As the trial court order states, “It has long been recognized in this state that if one is induced not to read a contract−or, as here, not to obtain outside assistance in reading the contract−and he signs an entirely different paper from what the opposing party has represented that paper to be, the party so signing is entitled to be relieved of the obligations which he has unknowingly assumed.” Order at 7 (citing Pepple v. Rogers, 140 So. 205, 208 (Fla. 1932)). Alternatively, if arbitration was mentioned, it was not mentioned in an understandable way. Under either analysis, procedural unconscionability was established.

The Court also found the arbitration agreement to be substantively unconscionable and affirmed in part and reversed in part. Kudos for a logical and understandable opinion.

Weatherly v. Louis:

Judge Cope dissents in this personal injury appeal, which revolves around whether or not Judge Esquiroz correctly applied or even articulated the "manifest weight of the evidence" standard in denying a motion for new trial.

Judge Lagoa in the majority opinion says she did and takes Judge Cope to task for elevating form over substance:

First, there is nothing in the record that remotely suggests that the trial court misunderstood the test applied to a motion for new trial. Not only is the trial judge an experienced jurist, but Weatherly’s own motion below articulated the standard he asked the trial court to apply. Weatherly merely disagrees with the outcome of the trial court’s ruling.

Second, there are no magic words a trial court must recite in denying or granting a motion for a new trial. Indeed, such a requirement would elevate form over substance.

Finally, much of the dissent focuses on the fact that part of Louis’s SUV was still in the southbound lane of Krome when Weatherly hit the SUV. The dissent implies that this must be an indicia of some measure of negligence on Louis’s part. Respectfully, the dissent ignores the conflicting evidence from both Louis and Fitzsimmons.

Lastly, Judge Cope is a poopy-head! (I'm paraphrasing on that last part).

Here's how Judge Cope sees it:

In this argument the plaintiff acknowledged that the verdict may be supported by some evidence, but that it is against the manifest weight of the evidence. The plaintiff maintained that, given the respective positions of the vehicles, the idea that the defendant was completely free of negligence was against the manifest weight of the evidence.

The trial court entertained argument and denied motion, stating in part:

I think there is evidence from which the jury could have found that either Mr. Louis was not negligent, that he didn’t breach his duty of care not to create an unreasonable risk of harm or that if that did happen and he was negligent that his negligence was not the proximate cause of the accident. On either one of those two bases, I guess the jury could have found that there should not be a verdict against Mr. Louis.

I know that it is tough, but I invite you to take it up on appeal. Okay?

Gotta love the last part, right?

Judge Cope then gets to the heart of it:

Respectfully, the trial court’s oral pronouncement indicates that the court applied an incorrect legal standard. There is a clear distinction between (1) determining that the evidence is legally sufficient to support the verdict, and (2) determining that the verdict is contrary to the manifest weight of the evidence. See Brown v. Estate of Stuckey, 749 So. 2d 490, 495 (Fla. 1999).

The problem here is that the trial court’s oral pronouncement revealed the court proceeded only under concept (1), and determined that the verdict was supported by competent substantial evidence. The difficulty is that this part of the plaintiff’s amended motion was not based on concept (1), but was instead based on concept (2): an argument that the verdict was against the manifest weight of the evidence. See id.

I could go either way on this one. I know that's tough.

Why not you guys just take it up, ok?

Abu-Ghazaleh v. Chaul:

Did you know you can be a "party" to litigation if all you do is fund and control it:

This Court has previously stated that a“party” “is defined under Florida law as any person who participates in litigation regardless of whether or not [the party is] actually named in the pleadings.” Visoly v. Security Pac. Credit Corp., 768 So. 2d 482, 489 (Fla. 3d DCA 2000).

Wow, you weren't kidding about form and substance.

Understood, but don't tell the Resplendently Robed Ones about this opinion.

BTW, congrats to former Chief Judge Gersten for his handsome portrait unveiling, which now hangs in the Courtroom of the 3d DCA alongside all the other former Chief Judges -- I put up a few pictures I took of the event.

(Seriously, though, it is well-deserved and a great honor).

You're A Hard Man To Please, George L. Metcalfe!

I always knew Burt Young was a mensch.

But he brought a tear to even these jaded eyes with his most recent letter to the Florida Bar News (his earlier one is here), in what has become a continuing George L. Metcalfe soapbox/soap opera played out in the letters page of what used to be a normal Bar publication:

Is not it Biblically accepted that (wo)man was created in the image of G-d? If G-d created His people with different sexual orientations, then who is Mr. Metcalfe and his ilk to question G-d’s wisdom? If his answer is that the literal translation of the Bible says it’s so, then how are all of the bizarre and inhumane contradictions of the Bible explained? They cannot.

Who in their right minds would accept and be bound as part of the civil law the literal Biblical interpretations? (I do not consider members of the Taliban as being in their right minds!)

In sum and in every respect, David has made both his late mom and me very proud parents.

And, I repeat, any law that would prohibit the likes of my son from adopting a child is an “ass.”

And not just the law either.

You know, I think Burt is channeling either Shakespeare or Mel Brooks above.

Let's go with Brooks and the Nazis, they're funnier -- scroll through to about 4:55 in to see what I mean.

More Hilarity from The RRA Vaults!

So I took a look at this motion for sanctions filed against Whitney and Rothstein in the MD FL, which makes reference to this other Whitney case we talked about yesterday.

It's a fairly compelling document, laying out a long list of discovery hijinks allegedly perpetrated by Whitney and RRA in several cases filed by Whitney against various critics and detractors.

This part seems somewhat prescient:

48. If this Court does not take drastic measures, it is clear that Whitney and WIN, with the help of the Rothstein Firm, are going to continue to use the court system in bad faith to simply harass anyone who has the temerity to criticize Whitney or WIN. They will continue to repeat the pattern of causing their opponents to expend needless money on litigation, despite the fact that Whitney, WIN, and the Rothstein firm ultimately know that they have no plan to engage in discovery, and specifically no plan to allow Whitney’s deposition to take place.

49. In order to drive home the point – made a number of times before, but apparently never fully absorbed – that, if they want to sue someone, WIN and Whitney will have to engage in meaningful discovery, this Court should strike WIN and Whitney’s pleadings, dismiss the complaint filed by WIN and Whitney, and reserve jurisdiction to award attorney’s fees and costs.

50. Additionally, it seems clear at this point that the Rothstein Firm knows or should know that WIN and Whitney have no intent to engage in meaningful discovery in any case in which Whitney is subject to deposition. In addition to sanctioning WIN and Whitney, this Court should sanction the Rothstein Firm based on their pattern of badfaith conduct in furtherance of WIN ane Whitney’s untenable actions. As noted above, and as demonstrated by the voluminous exhibits to this motion, the Rothstein Firm has been just as responsible for problems conducting discovery as WIN and Whitney themselves. In at least three other cases, depositions appear to have been cancelled at the last minute without regard to procedure. At least two other attorneys and one pro se defendant have complained that the Rothstein Firm appeared to be operating in bad faith. The Rothstein Firm is acting as a mere extension of its client without regard for the law or the ethical constraints of practice. It is therefore appropriate that the Rothstein Firm or its successor entities be held jointly and severally liable for any sanctions ordered against WIN and Whitney.

Unfortunately, too often judges take it easy on litigants or their attorneys in federal court, reluctant to ruffle feathers or get in the weeds on questions of attorney misconduct in discovery matters. Or, if they do decide some sanction is appropriate, it rarely is directed at the attorney for a host of reasons.

In this case, Magistrate Judge Sheri Polster Chappell granted the motion in part, compelling the delayed depositions, but denied as to sanctions against Rothstein or his client, even though she agreed that there was "some dilatory conduct, but not conduct sufficient to rise to the level of bad faith."

Don't worry -- plenty of that came later.

This One's For You, Scottie!!

Magistrate Judge Rosenbaum jailed him.

Glenn Garvin, Late and Wrong

Glenn Garvin's column today presents a case study in what is wrong with op-eds in local newspapers.

First, he's picked a topic with no local angle -- the trial of KSM in New York.

Being a national story, this topic has been discussed at length in newspapers and blogs and on TV ever since Attorney General Holder made the announcement two weeks ago.

Indeed, I covered it a week back on November 24.

So, if you are going to approach a topic that is several media-cycles old and which has already been the subject of tremendous debate and analysis by every major national columnist in this country, you need to bring something new to the table.

Needless to say, Garvin fails.

Instead, Garvin offers a deeply flawed and inaccurate understanding of how the criminal justice system works, with absolutely no reference to the successful terrorist prosecutions that have occured in this country, such as John Walker Lindh, Richard Reid, Zacarias Moussaoui, Ali al-Marri, Jose Padilla -- all tried under the Bush Administration btw.

Garvin's gloom and doom and fear-based arguments are too silly to get into, and have already been addressed dozens of times by knowledgeable lawyers such as former Bush AGs Jim Comey and Jack Goldsmith.

The larger point has to do with the newspaper business. If you are that late to a story, you have to approach it like Time Magazine, The Nation, or National Review -- deliver some analysis, synthesis, commentary that reflects a point of view or which has been lacking in the day-to-day coverage thus far.

Can anyone reading Garvin's column today -- including his editors -- say with a straight face that Garvin has added something (anything?) meaningful to the discussion?