How Does Pacenti Do It?

One minute he's seated at his typewriter pounding out a story on Claudio Osorio being criminally indicted, and the next he is at the Four Seasons glad-handing at the DBR's "Most Successful Lawyer" soiree.

Because he is a newspaperman, that's how.

Osorio was charged with fleecing investors of $40 million. The indictment also charges Osorio and co-conspiritors falsely obtained a $10 million loan from the Overseas Private Investment Corp., a U.S. government agency that promotes U.S. investments abroad to foster the development and growth of free markets. The loan was intended to build a factory and 500 homes in Haiti for families displaced by the 2010 earthquake.

I leave any discussion of all this to Rumpole and DOM who know what this means, but I observe that allegedly scamming Chris Korge and the government might increase your chances of being charged with a crime.

Ernie Souchak Pacenti reports that Osorio was to appear today before our pal U.S. Magistrate Judge Jonathan Goodman.

Begging the question: what song might the good Judge invoke to support his ruling?



N.B.: Two free movie tickets first class tickets to Jackson Hole and a week at my condo to anyone who scores a picture of Rumpole cocked and in a compromising position at the Public Defender office party.

Hemingway House Now an "Animal Exhibitor" Subject to USDA Regulation!

Listen, I know there are a bunch of cats on the grounds, but seriously?

Appellant 907 Whitehead Street, Inc., d/b/a Ernest Hemingway Home and Museum (“the Museum”), appeals the district court’s post-trial order denying the Museum declaratory and injunctive relief. The Museum challenges the jurisdiction of the U.S. Department of Agriculture and its Animal and Plant Health Inspection Service (collectively the “USDA”) to regulate the Museum as an animal exhibitor under the Animal Welfare Act (“AWA”), 7 U.S.C. § 2131 et seq. The district court concluded that the Museum is indeed subject to the USDA’s regulatory reach pursuant to the AWA. After considering the parties’ arguments and having the benefit of oral argument, we agree with the district court’s findings of fact and conclusions of law and hold that the Museum is an AWA animal exhibitor subject to USDA regulation.

Here's an example of the findings relied on by the district court and affirmed by the 11th:

The Museum has always kept, fed, and provided weekly veterinary care for the Hemingway cats. The cats live and roam freely on the grounds that are enclosed by a brick fence at the property’s perimeter. To prevent population beyond the historical norm of 50–60 cats, the majority of the cats are spayed or neutered so that only a couple of cats of each sex are reproductive. At the time of the district court’s bench trial, the Museum had 44 Hemingway cats.

No Hemingway cat has ever been bought or sold, although some cats have been given away at various times.2 However, the Museum charges admission for a tour of the property, and the tour includes seeing and discussing the roaming Hemingway cats.

Ok, thank God I don't charge admission to my house, or else the dogs and hamster would definitely subject me to USDA regulation.

I like the final "hold-your-nose" disclaimer at the end of the opinion:

Notwithstanding our holding, we appreciate the Museum’s somewhat unique situation, and we sympathize with its frustration. Nevertheless, it is not the court’s role to evaluate the wisdom of federal regulations implemented according to the powers constitutionally vested in Congress.

Indeed.

How Many Pages Should Your Notice of Supplemental Authority Be?

 Maybe I'm one of those old fart lawyers Brian Tannebaum is always writing about, but I was taught that a notice of supplemental authority should be a one-page document listing the new case, with at most one line or two explaining its relevance.

It shouldn't be an opportunity to engage in another set of briefing that renders the federal rules superfluous.

But we all know lawyers who can't resist using the new case to reargue points already made in the briefs, and who go way overboard -- causing you a moral dilemma:  should you respond in kind?  Move to strike?  Turn the other cheek and ignore the sharp practice?  Hope the judge does something sua sponte?

Case in point:

This supplemental authority is fairly restrained, though you could argue it goes a paragraph too far.

But like the old Cold War doctrine of MAD, an overwhelming and devastating response was inevitable.

And here it is -- three full pages of responsive argument.

Not willing to leave well enough alone, here is the "reply" in support of the notice of supplemental authority -- four(!) more pages of pure argument.

Aren't there page limits in briefs for a reason?

3d DCA Watch -- Judge Cortinas Goes Full Carnes!

 Hi kids, can you feel the winter break taking hold in your practice yet?

The lawyers coming in later, leaving earlier, judges cancelling hearing, depositions being moved to 2013....let's just slide into the holidays, shall we?

Only two civil opinions of note this week, let's take a look:

FIGA v. Karelas:

Yes, it's nearly 2013 and Judge Schwartz is still entering orders like it's disco-era 1978!

Galleon Bay v. Bd. of Cty. Comm:

Whose writing style does this opening paragraph remind you of:

When apt-named Galleon1 first set out to develop its property, it could not have possibly imagined the tumultuous seas it would encounter in the decades that followed. While galleons have not been spotted on our shores since the Eighteenth Century, this is our Court’s seventh encounter with this case.

The Judge went full Carnes!

Judge Ryskamp Dismisses With Prejudice Groundwater Contamination Case!

It turns out that a few years ago a bunch of poor minority residents living in the Acreage area of western Palm Beach County learned that they had unusually high rates of cancer -- a "cancer cluster" -- not exactly great for property values (let alone health).

These residents then sued aeronautics giant Pratt & Whitney for contaminating their groundwater, claiming that the contamination emanated from a plant located several miles away.

On a second amended complaint, Judge Ryskamp dismissed the action with prejudice, relying on Iqbal and a lack of specificity in the allegations.

Here's an example:

The closest Plaintiffs come to making a specific allegation that something traveled from Pratt & Whitney to the Acreage is in Paragraphs 236 and 238, but those fall short of the mark. Plaintiffs allege that Pratt & Whitney and The Acreage “are underlain by” the same aquifer, and that “groundwater is drawn” from the Corbett Wildlife Management Area and Pratt & Whitney to the Acreage. Complaint, ¶236. Plaintiffs then allege that their experts:

confirm that the types of CCOCs . . . known to have been spilled . . . at the P&W site and by Pratt & Whitney in the Corbett National Wildlife Refuge [sic] have traveled to and physically invaded The Acreage, and are present in the groundwater of The Acreage Neighborhood and have contaminated the groundwater that the Plaintiffs’ and class members’ properties share with [THMs].

Sec. Am. Compl., ¶238. This allegation superficially appears specific, but is yet another generalized allegation that the “types of CCOCs” found at Pratt & Whitney traveled to somewhere under “The Acreage”—as opposed to under each Plaintiff’s property—and that these types of CCOCs “are present” in “the groundwater of The Acreage Neighborhood.” The mere allegation that chemicals at Pratt & Whitney “are present” in the groundwater of “the Acreage” does not mean that the chemical traveled from Pratt & Whitney to the Acreage, as any chemical in the Acreage could have come from a different source than Pratt & Whitney.

YUM -- time to bottle and sell that delicious vaguely contaminated Acreage water!

(Maybe they can sell some to that nearby Pratt & Whitney plant?)

BTW, plaintiffs' lawyer Craig Zobel said he had plenty of evidence:

“We respectfully disagree,” he said. Contrary to Ryskamp’s ruling, Zobel said, he submitted thousands of pages of records linking Pratt & Whitney to the cancer cluster. He hired an appraiser, who reviewed all 17,000 pieces of land and methodically showed how property values plunged. He hired hydrologists to track how toxins moved through underground water supplies. He hired urologists and toxicologists who linked Magaly Pinares’ kidney cancer to the toxins found in her well.

“We had a wealth of data,” he said.

But how much of it was in the second amended complaint?

What "Format" is Your Lawsuit?

The gender discrimination suit filed by a GT shareholder in the Philly office contains some blockbuster allegations.

ATL found this nugget -- that the only way for women attorneys to get ahead at GT is to sleep with their male superiors (see paragraphs 69-72).

Wow, wow, and wow.

But Hilarie Bass says au contraire:

“The format of the lawsuit reflects an effort to extort money from us,” Bass said. “Our shareholder agreement has an arbitration clause that she is well aware of and instead she chose to file a class action in federal court.” Bass said even if the case ends up in court, she believes it will be an individual lawsuit rather than a class action.

The "format" of the lawsuit -- what an unusual word choice.

I suppose she means the procedural posture -- a class action filed in federal court.  But that doesn't automatically equate to extortion, or does it?

This is another gem:

The suit alleges that Lehr, regional operating shareholder in charge of Philadelphia, told Griesing at one point that only “tall, male and Jewish GT lawyers generate business” and that there is “no formula” for compensation and that it is entirely subjective, commenting that female shareholders are “lucky” to get paid as much as they do.

"Tall, male and Jewish" -- just like Cesar Alvarez!

GT insiders -- speak up, is there any truth to these allegations?

 more here: http://www.miamiherald.com/2012/12/03/3125399/greenberg-traurig-faces-gender.html#storylink=cpy

Read more here: http://www.miamiherald.com/2012/12/03/3125399/greenberg-traurig-faces-gender.html#storylink=cpy

Spencer Aronfeld -- Don't Trust What People Put on Their Websites!

Good morning!

In the news this morning:

1.   Yes, the Dolphins still suck.

2.  SHB attorney Marc Levinson now knows never to invite Nevin Shapiro to your bachelor's party (you may have to give a deposition about it later).

3. Spencer Aronfeld was on Tyra (about 5:30 in).

4.  Kendall Coffey lives part-time in Melbourne.

Melbourne?

5. Happy Birthday, text message!

And how was your weekend?