FINAlISt

Transcription

FINAlISt

special report: most effective lawyers 2013
TABLE OF CONTENTS
Appellate..................................................................................................... AA2
Arbitration and Mediation.................................................................... AA4
Bankruptcy.................................................................................................. AA6
Business and Complex Litigation....................................................... AA8
Corporate Securities..............................................................................AA10
Criminal Law............................................................................................AA12
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MONDAY, DECEMBER 9, 2013
Distressed Real Estate...........................................................................AA14
Personal Injury.........................................................................................AA15
Pro Bono....................................................................................................AA17
Product Liability......................................................................................AA18
Public Interest..........................................................................................AA21
Real Estate.................................................................................................AA22
AA2
dailybusinessreview.com MONDAY, DECEMBER 9, 2013 DAILY BUSINESS REVIEW
notable
achievements
A
lthough the economy continues to improve and many
South Florida law firms feel better about their business prospects, post-recession pressures remain on
leaders who must deliver upside financial results year after
year. Clients want fees reduced. Corporate in-house departments are demanding higher levels of accountability from
outside counsel. And expense cuts remain an important
order of the day.
Despite the continued pressures, there has been one
constant within the South Florida bar. A vast majority of
the legal community members did what they were hired to
do: In both the private and public sectors, they served their
clients well. As proof, the Daily Business Review is again
recognizing some of the best work delivered by private
and public sector lawyers from Miami-Dade, Broward and
Palm Beach counties via Most Effective Lawyers in South
Florida.
This year, the Review is recognizing more than 80 attorneys in 12 practice area categories.
They include: Appellate, Arbitration and Mediation,
Bankruptcy, Business and Complex Litigation, Corporate
Securities, Criminal, Distressed Real Estate, Personal Injury,
Pro Bono, Product Liability, Public Interest and Real Estate.
As always, the attorneys were measured on one critical
benchmark: the results for the client.
This year, there were plenty:
— The assistant public defender who went all the way
to the U.S. Supreme Court to successfully challenge the use
of a drug sniffing dog by police detectives who entered a
Miami-Dade County residence without a search warrant.
— The attorneys who forced arbitration on behalf of
their defense contractor client in a five-year battle against
the government of Venezuela.
— The lawyers who labored long and hard to get a deal
that will pay millions to creditors in the infamous Rothstein
Ponzi scheme case.
A number of defense lawyers also took their places on
the winning side, such as the trio that successfully led an
effort to deflect litigation against corporate clients, getting a
securities class action dismissed.
On the pro bono front, a legal team persuaded the state
Supreme Court to allow public defenders overburdened
by heavy caseloads to decline appointments in noncapital
felony cases.
In the public interest sector, a child advocate successfully
compelled a state agency to provide enhanced care for a
young girl who had a life-threatening respiratory condition.
A large majority of these selections were brought to the
DBR’s attention by lawyers, their clients and colleagues and
by members of the public.
The nominees’ work was evaluated by the DBR editorial
staff and based on tangible results, the degree of involvement in bringing about those result and the impact on public policy and business interests.
The editors conducted a three-month selection process
that focused on not only the outcomes but the complexity
of cases.
Only South Florida lawyers qualified and the results had
to be achieved between October 1, 2012 and September 30,
2013, which was the deadline for submissions.
An initial cut was made to eliminate nominations that
were incomplete, did not meet the criteria or clearly did not
belong in the program.
The DBR’s research director reached out to many of the
nominees for information to buttress the nominations. The
editors then scored the nominees before meeting to select
the semifinalists. Later, the editors met to select the finalists.
Some of the categories that proved to be the most competitive were appellate, business litigation, real estate and
produc liability.
DBR law reporters and several outside contributors researched and further reported on the cases handled by the
finalists. In some cases, they spoke with the nominees’ adversaries and clients, and frequently consulted case files.
The editors reconvened last month to review the additional
findings and research by the writers, and then undertook
the difficult task of choosing the Most Effective Lawyer for
each of the 12 practice areas.
Most Effective Lawyer or not, all of the lawyers featured
in today’s report deserve recognition for their successful
and tireless efforts on behalf of their clients -- the ultimate
measure for any lawyer.
Special Report
Appellate
Retiring public defender wins
U.S. Supreme Court drug case
J. Albert Diaz
Howard Blumberg
Howard Blumberg
Miami-Dade
Public Defender’s Office
It’s a nice bookend to a 35-year
career as an assistant MiamiDade public defender.
The office threw Howard
Blumberg into his first appellate
case just months after he started
there. He won.
This year, as Blumberg is retiring, he won his first case before
the U.S. Supreme Court.
“For someone like me, who’s
dedicated their entire life to being an appellate lawyer, it was
the opportunity of a lifetime,” he
said. “And it was really nice that
it came kind of at the end of my
career when I was about as good
as I was going to get in terms of
experience and things like that.”
The decision, he insists, is
“very narrow.” Its impact, nonetheless, establishes a new and
important Fourth Amendment
boundary for what police can
and cannot do with a drug-sniffing dog, and where.
In March, a divided U.S.
Supreme Court ruled 5-4 that two
Miami-Dade detectives needed a
search warrant before bringing
Franky, a since-retired police
dog, to the front porch of a home
they suspected was a marijuana
grow house.
The detectives did eventually
get a warrant, but not until after
Franky gave an alert. Police entered and seized 179 marijuana plants. They arrested Joelis
Jardines in December 2006 for
trafficking in cannabis and grand
theft.
When it came to trial, MiamiDade Circuit Judge William
Thomas threw out the evidence
seized inside the home. On appeal, the Third District Court of
Appeal reversed his decision,
only to have its ruling overturned
by the state Supreme Court.
In October 2012, the U.S.
Supreme Court heard the case.
Blumberg took along his wife,
son and a courtroom artist. They
got to see the justices pepper
Blumberg with questions during
his oral argument.
“One of my colleagues counted,” he said. “I think it was 26
questions in the 30 minutes I was
up there.”
Justice Antonin Scalia wrote
the majority opinion.
“As it is undisputed that the
detectives had all four of their
feet and all four of their companion’s firmly planted on the constitutionally protected extension of
Jardines’ home, the only question is whether he had given his
leave (even implicitly) for them to
do so,” Scalia wrote. “He had not.”
It was only the second time in
the 3½ decades Blumberg was
with the office that the Supreme
Court ruled in a case coming
from the Miami-Dade public
defender’s office. It, too, was a
Fourth Amendment issue. The
PD’s office won that one, too.
FINALIST
Attorney never gave up in pursuing USS Cole case
Andrew C. Hall
Hall, Lamb and Hall
— The Editors
Andrew C. Hall
Andrew
Hall refused
to give up.
He told the
families that
when he first
took the case.
And
even
though it took
him nearly a
decade and four tries, he finally
won the right to seek damages
for pain and suffering for the 59
spouses, partners, siblings and
children of the 17 U.S. sailors
killed in the terrorist attack on
the USS Cole.
“I told these families that I
wouldn’t stop until I thought that
we had done everything the law
would permit to get them fair
justice. To me it has always been
personal,” the Hall, Lamb and
Hall managing partner said. “I
know the scar that that bombing
caused in these families is permanent and deep, and will always be there. So whatever I do
to provide a little bit of healing is
what I take pride in and not just
a good appellate result.”
In October 2000, two men in
a small boat loaded with explosives floated up to the destroyer
See COLE, Page AA4
DAILY BUSINESS REVIEW MONDAY, DECEMBER 9, 2013
dailybusinessreview.com
AA3
AA4
FINALISTS
From Page AA2
‘Floating home’ case became
Justice Roberts’ favorite of year
Cole: Lawsuits against
Sudan started in 2004
Kerri Barsh
Greenberg Traurig
Ed Mullins and Annette Escobar
Astigarraga Davis
A “floating home” is not a houseboat.
It may seem like a minor distinction, but the fight over the difference went all the way to the U.S.
Supreme Court and established a
far-reaching redefinition of admiralty law.
It began in a lone gadfly’s battle with the city of Riviera Beach.
Millionaire financial trader Fane
Lozman’s beloved home on the
water was seized and destroyed
to make way for waterfront redevelopment, but he kept fighting to
prove the city was wrong to rely on
maritime law. He insisted it was a
house, not a boat.
Chief Justice John Roberts called
the quirky case his favorite of the
year.
Getting it before him and the
rest of the justices came as the result of years of effort by Greenberg
Traurig shareholder Kerri Barsh
Kerri Barsh
Ed Mullins
and Astigarraga Davis shareholders Ed Mullins and Annette Escobar.
It was a first for all of them.
When the court granted certiorari, Barsh was working from
home.
“I screamed at a high frequency
that only dogs can hear,” she said.
There are about 5,000 “floating home” owners in the country.
But the impact of the decision goes
beyond them. Floating casinos,
and cities where they’re located,
watched the case closely. Some
even joined in.
The bottom line is that a boat
can travel under its own power; a
floating home can’t, Mullins said.
“You can think of a houseboat
more like an
RV, but a floating home is like
a trailer,” he
said. “Trailers
can be moved
and they are
moved,
but
they’re not intended to be
driving down
Annette Escobar
the road.”
Or, as Justice
Stephen Breyer put it in the court’s
7-2 opinion in June: “Not every
floating structure is a vessel,” he
said. “To state the obvious, a wooden washtub, a plastic dishpan, a
swimming platform on pontoons, a
large fishing net, a door taken off its
hinges or Pinocchio (when inside
the whale) are not ‘vessels,’ even if
they are ‘artificial contrivance(s )’
capable of floating, moving under
tow and incidentally carrying even
a fair-sized item or two when they
do so.”
And that means a floating home
doesn’t fall under admiralty law,
but under rules for houses.
while it was docked in
Yemen. The blast tore a
40-foot hole in its side. AlQaeda claimed responsibility.
Hall filed the first of
two lawsuits against
Sudan in 2004, blaming
the country for giving AlQaeda everything it needed to go through with the
attack. He won nearly $8
million in damages under
the Death on the High
Seas Act. But a Virginia
district court rejected his
claim under state law
for non-economic damages. DOHSA pre-empted
them, the judge ruled.
Hall appealed.
While that appeal was
pending, the law changed
to permit a federal private right of action and
recovery for pain, suffering and punitive damages
against foreign states.
“The law was developing around us,” Hall said.
So was his strategy.
The U.S. Court of
Appeals for the Fourth
Circuit remanded the
case, but the district court
refused to allow a new
cause of action.
Hall appealed again.
As that proceeded, he
filed a new lawsuit that
included a claim under
the changed law permitting non-economic damages.
The appeal was rejected, and the district court
dismissed the new claim,
contending the case had
already been decided.
Hall appealed yet
again, insisting the district court erred by applying a limitation period.
In June, the appellate
court agreed. It reversed
the district judge’s ruling, giving Hall and the
victims the opportunity to
pursue another $200 million or more in damages.
Arbitration and Mediation
Akerman attorneys battled Venezuela for five years
Luis Perez and Luis O’Naghten
Akerman
Luis Perez and Luis O’Naghten
J. Albert Diaz
Akerman attorneys Luis
Perez and Luis O’Naghten
spent five years battling the
Venezuelan government on behalf of their client, defense contractor Raytheon Anschutz.
The dispute centered on a contract that Raytheon Anschutz, a
subsidiary of international defense contractor Raytheon Co.,
had with the Venezuelan navy
to deliver navigational equipment for installation in two submarines.
The U.S. placed an embargo
on military equipment and services against Venezuela, preventing Raytheon from fulfilling
its contract.
The case made its way from
the Venezuela Supreme Court,
where the government initiated
litigation seeking up to $155
million in damages, to courts in
Madrid and the ICC International
Court of Arbitration.
The Madrid court dismissed
with prejudice Venezuela’s challenge to the jurisdiction of the
ICC, setting the stage for the case
to go to arbitration.
“The fact that it was held in
Spain turned out to have significance because Spain’s arbitration law says a country
can’t use its own internal laws
to disregard arbitration laws,”
said O’Naghten, who chairs
Akerman’s international litigation and arbitration practice.
In October 2012, international arbiters awarded the
Venezuelan government slightly more than $2 million of the
$155 million it was seeking.
More importantly, however,
the ICC ruled Venezuela could
not collect the award unless and
until it dismissed with prejudice
the lawsuit it had filed against
Raytheon in Venezuela.
The ICC also ruled that by
continuing to litigate the case
in Venezuela, the government
had breached its own contract,
which required arbitration of
disputes.
That was significant since
the Venezuelan government has
continued to this day to pursue
the case on its home turf.
“What makes this case particularly interesting is that it hits
on almost every reason why
international arbitration exists
and why companies and countries resort to international arbitration,” said O’Naghten.
While arbitration is supposed
to be quicker and cheaper, Perez,
co-chair of the firm’s Latin
American and Caribbean practice, said Venezuela dragged out
the case, challenging his client
every step of the way, including
its ongoing insistence that the
case be heard in Venezuela.
However, Perez is not concerned.
“Whatever comes out of the
courts in Venezuela, which we
don’t expect will be good for a
non-Venezuelan entity, will be
subject to a bar from enforcement from any jurisdiction outside of Venezuela as a result of
the ICC ruling,” he said.
AA5
AA6
Arbitration and Mediation FINALISTs
Arbitration award against Wells Fargo recovers most of family’s losses
Robert W. Pearce
Adam Kara-Lopez
Robert W. Pearce P.A.
Mediation and arbitration are supposed to be faster and more cost-effective than going to court. However, it was
neither in a case involving the theft of
millions of dollars from College Health
and Investment L.P., a family-run limited
partnership.
The case took more than three years
to resolve as attorneys for Wachovia
Securities, now part of Wells Fargo, used
numerous delaying tactics before ultimately paying a $2.75 million arbitration award, said Boca Raton securities
Robert Pearce
Adam Kara-Lopez
attorney Robert W. Pearce, who represented College Health.
The case grew out of Wells Fargo’s
failure to detect the alleged theft and
unauthorized transactions of millions
of dollars by Esther Spero, whose aunt,
Shari Jakobowitz, was in charge of the
partnership’s accounts.
Spero was accused of misusing the
family’s financial information to steal
about $7 million, which she in turn lost
to one-time Miami Beach developer
Michael Stern, who was supposed to be
investing in real estate. Instead, Stern
allegedly used the money to pay off his
own debts after the real estate crash
while funding a lavish lifestyle.
Pearce traced most of the money and
made recoveries in state court against
Stern, a title company, Spero and
Wachovia.
“They came up a bit short, but we
came close to getting most of their mon-
ey back,” Pearce said.
Then, in July, a Financial Industry
Regulatory Authority arbitration panel
ordered Wells Fargo to pay $2.75 million in damages and interest for failing
to detect Spero’s alleged embezzlement.
Pearce alleged bank employees went
so far as to create a false power of attorney to give Spero control over the account that held most of the assets.
Had the bank enforced its own policies and procedures, as well as FINRA’s
rules, it would have detected the embezzlement, Pearce argued.
“The bank had numerous red flags. It
should have made inquiries to stop the
movement of funds,” Pearce said.
Bankruptcy
Trio of lawyers wrapped up deal to pay Rothstein creditors
Melanie Bell
Michael Goldberg
J. Albert Diaz
Charles Throckmorton
Michael Goldberg
Akerman
Charles Throckmorton
Kozyak Tropin & Throckmorton
James Silver
Conrad & Scherer
It was an unusual tribute from an
unlikely fan.
Paul Singerman, counsel to
the bankruptcy trustee for Scott
Rothstein’s defunct law firm, was
telling the judge about a marathon
negotiating session that produced a
close-to-global settlement. He raved
about creditors’ committee attorney
Michael Goldberg, the deal’s unofficial broker.
“I genuinely think that we’d
have witnesses … taking your time
Melanie Bell
James Silver
and costing this estate upwards
of millions of dollars more in fees
and appeals without his extraordinary efforts last night, and we all
thank him,” Singerman told U.S.
Bankruptcy Judge Raymond Ray in
Fort Lauderdale, according to a transcript of the July 11 hearing.
Rothstein’s $1.2 billion Ponzi
scheme collapsed in November 2009,
leaving Rothstein Rosenfeldt Adler in
ruins and about 400 creditors clamoring for restitution. They divided
into groups, hired the cream of the
bankruptcy bar and spent years battling over the spoils.
One particular target was TD
Bank, portrayed as Rothstein’s bottomless cookie jar, where “$6.8 billion circulated through the accounts
of this small Fort Lauderdale law
firm in less than three years,” Charles
Throckmorton wrote in a July 2 court
document. The bank had already suffered losses of $67 million, including
punitive damages, in a state court
case brought by an investor group.
But TD Bank, with a net worth of
$49 billion, was also the deepest pocket for the RRA estate, a fact not lost
on trustee Herbert Stettin. Seeking to
maximize the outcome for all, Stettin,
represented by Singerman, was willing to give TD Bank what it wanted: a
bar order preventing creditors from
pursuing more state court claims.
Working in tandem for their common clients, Throckmorton and
James Silver vehemently objected.
By the time the second week of July
rolled around, Goldberg recalled, “I
think I was the only one everybody
was still speaking to.”
“I got everybody into a room and
said, ‘All right, this is ridiculous.’ ”
Goldberg credits the many other lawyers involved with achieving the settlement, saying, “It was the ultimate
team effort.”
Now the liquidation administrator, Goldberg has distributed close
to $100 million, and expects to make
a second $100 million payout by the
end of the year. The distributions
represent 100 cents on the dollar
to creditors with general allowed
claims.
“I’d be shocked if you could find a
creditor in this case that’s unhappy,”
he said.
AA7
FINALISTS
FINALISTS
For unsecured creditors ‘we became like their life vests’ Tabas Freedman team had to expand its area of mastery
Scott Baena, Jay Sakalo
and Philip Stein
Bilzin Sumberg Baena
Price & Axelrod
The main secured
creditor was trying to boot
them off the bankruptcy
case, and they couldn’t
take the trustee’s support
for granted.
Scott Baena
So did Scott Baena and
Jay Sakalo regret the day
First NLC Financial Services LLC came
over their transom?
Not a bit. “It suggested that we were
on the right track,” Baena said.
Once a leading subprime mortgage
lender, Deerfield Beach-based First NLC
filed for Chapter 11 reorganization on
Jan. 18, 2008.
Months earlier, the struggling bank’s
chairman, Neal Henschel, and his CEOson Jeffrey had taken on $75 million in
new debt through a loan from an affiliate
of Sun Capital Partners in Boca Raton.
The Henschels also sold for $51.5 million a $93 million portfolio of subprime
loans to another Sun Capital affiliate.
The Henschels hired Thomas Allison
as chief restructuring officer. On Allison’s
first day, June 10, 2007, he approved the
$93 million portfolio deal.
When First NLC filed for Chapter
11 less than seven months later, Bilzin
Sumberg came in to represent the unsecured creditors, mostly former employees and executives. At its height in
2006, the bank had 2,100 employees in
70 branches.
“These people were really struggling,
Jay Sakalo
Philip Stein
and we became like their life vests, and
they clung to us, and we started to feel
responsible for them,” Baena said.
“Usually we’re just fighting about
money. Usually the parties we fight for
regret losing it, but they go on,” he said.
“These folks just couldn’t tolerate a loss,
and they were a real cheering section.”
Much less grateful were the primary
targets of Bilzin Sumberg’s two-pronged
recovery strategy: Sun Capital, the
first-line secured creditor, and Allison.
Both fought to push Bilzin Sumberg off
the case, but after it was converted to
Chapter 7 liquidation, trustee Deborah
Menotte hired the firm as her special
litigation counsel.
When the dust settled, Baena and
Sakalo got Sun’s $75 million claim recharacterized as equity interests in the
debtors, putting them “at the front of the
line,” Sakalo said. Philip Stein, a state
court litigator, filed a lawsuit against
Allison that resulted in an eve-of-trial
settlement of $2.65 million.
That aspect of the case, dealing with a
CRO’s significant fiduciary duty, was followed by the bankruptcy bar and could
result in changes to the code.
Andrea Rigali, Gary Freedman
and Joel Tabas
Tabas, Freedman & Soloff
If you asked longtime bankruptcy lawyer Gary Freedman whether he’d ever
need to master NCAA rules, offshoregambling strategies or federal lockup
procedures, he’d probably give an unqualified “no.”
But that was before his partner, Joel
Tabas, became trustee for a highly unusual bankruptcy in which a defunct
company’s creditors were fleeced by
a Ponzi scammer addicted to football
boosterism.
Former Miami Beach businessman
Nevin Shapiro is serving 20 years in federal prison after pleading guilty to securities fraud in 2010. He was accused of running a $930 million racket through his
grocery brokerage, Capitol Investments
USA Inc., and violating NCAA rules by
funneling cash to University of Miami
athletes.
Tabas and Freedman, acting as the
bankruptcy trustee’s attorney, had to try
to make Capitol’s creditors whole despite
the fact “there wasn’t a pot of money sitting out there in an offshore account,”
Freedman said. Whatever they retrieved
had to come the hard way, through litiga-
tion or pre-suit mediation.
Thus the need to grasp some unfamiliar subjects.
“We were investigating potentially
50 different sources of recovery, some
of them similar, some not, some had issues of law that we had never seen before,” Freedman said. “At the same time,
you had this sort of explosion of Ponzi
scheme cases going on throughout the
U.S., and all of us looking for precedential
value because the law was evolving on a
daily basis.”
In January, the attorneys sued Shook,
Hardy & Bacon, a 500-lawyer firm based
in Kansas City, Mo., and former Miami
associate Marc Levinson, a childhood
friend and gambling buddy of Shapiro’s.
The suit alleged Shook Hardy, through
Levinson, was Shapiro’s main legal adviser for Capitol during the investment
scam.
Not surprisingly, Freedman found
himself facing some very fine lawyers,
“so it made the litigation negotiations extremely challenging.”
Finally, without admitting any liability
or wrongdoing, Shook Hardy agreed to
pay $5 million plus $1.65 million for the
trustee’s predetermined contingency fee.
When U.S. Bankruptcy Judge Laurel
Isicoff in Miami signed off on the settlement Oct. 21, the total recovery reached
about $41 million, of which the Tabas
Freedman firm gets to keep about $13.5
million.
“We expect an ultimate distribution to
creditors of 35 to 40 cents on the dollar,”
Freedman said. Considering how difficult that result was to achieve, he calls it
“extraordinarily good.”
AA8
Business and Complex Litigation
Trio attacked forced placed insurance practice
J. Albert Diaz
Adam Moskowitz
J. Albert Diaz
Aaron Podhurst
a.m. holt
Lance Harke
Adam Moskowitz
Kozyak Tropin & Throckmorton
Aaron Podhurst
Podhurst Orseck
Lance Harke
Harke Clasby & Bushman
In 2010, Adam Moskowitz, a partner
with Kozyak Tropin & Throckmorton in
Coral Gables, began investigating the
practice of forced placed insurance after
reading an article in American Banker
that highlighted the “predatory and abusive practices” of mortgage lenders.
He spent six months traveling the
country looking at individual lawsuits.
What he discovered was that lenders
were working hand-in-hand with insurance companies to force homeowners
whose policies had lapsed, often due to
their inability to pay after the housing
crash, to purchase policies with premiums significantly higher—sometimes
as much as 10 times more—than a
standard homeowner insurance policy.
Banks collected commissions on the insurance referrals.
The mortgage industry, in its defense,
argued the policies were more expensive
because the borrowers were high-risk.
Moskowitz mapped out a strategy
that in 2011 led to the first forced placed
class action lawsuit in the country. The
suit against Wells Fargo and insurance company QBE covered 24,000
Floridians who paid forced-placed premiums to Wells Fargo from April 2006
to February 2013. Kozyak Tropin and
Podhurst Orseck of Miami, led by Aaron
Podhurst, are co-lead plaintiffs counsel,
and Lance Harky of Harke & Clasby of
Miami Shores is active in discovery.
In May, Moskowitz reached a settlement worth $19.3 million.
“That case served as a very good
model for subsequent cases,” said
Moskowitz, who has four similar cases against JPMorgan Chase, Citibank,
HSBC Bank and Bank of America.
The case against Chase and insurance
partner Assurant settled in September
for $291 million. A final hearing is set
for February before U.S. District Judge
Federico Moreno in Miami. The other
cases are set for trial early next year.
Although in existence for many years,
the practice surged in the wake of the
housing market collapse.
“These are people who maybe
couldn’t make a payment or missed a
payment. I was shocked at the staggering numbers,” Moskowitz said.
The epicenter, he said, was Florida,
which had more than 30 percent of all
forced placed charges.
Moskowitz also recently filed a lawsuit against SunTrust.
“We filed that because we got so many
calls from the citizens in Florida that we
wanted a Florida-only class. The damages in that case are staggering as well
and are in the many, many millions,”
said Moskowitz, who calls forced-placed
insurance a national epidemic.
In early November, the Federal
Housing Finance Agency, which oversees
Fannie Mae and Freddie Mac, directed
the mortgage giants to stop reimbursing
mortgage servicers for costs related to
the special insurance arrangements.
“The litigation definitely played a
large and strong part in the changes, especially in getting people relief,”
Moskowitz said.
Finalists
Three South Florida firms team up
for $8 billion BP spill settlement
Mitchell Widom
Bilzin Sumberg Baena Price & Axelrod
Ervin Gonzalez
Colson Hicks Eidson
stuart Grossman
Grossman & Roth
It’s
been
more than three
years since the
BP
Deepwater
Horizon disaster
caused the largest
accidental marine
oil spill in history.
Afterward,
three
South
Florida-based law
Mitchell Widom
firms—each with
their own set of
expertise—teamed
to take on the giant oil company
on behalf of those
who lost their lives
and livelihood.
For
Mitchell
Widom, who leads
the litigation group
at Bilzin Sumberg,
Ervin Gonzalez
it was his ties to the
Florida Keys fishing guide community. For Grossman
Roth co-founder
Stuart Grossman,
it was his ability to cut through
multiple layers of
insurance
policies held by those
responsible. For
Stuart Grossman
Ervin
Gonzalez,
a partner at Colson
Hicks Eidson, it was his experience
leading complex national litigation
that resulted in an $8 billion national
settlement with BP. Widom said his
annual fishing tournament to benefit
the Crohn’s and Colitis Foundation of
America put him in touch with dozens
of Keys fishing guides over the years.
“We were the instigating force in
getting these clients,” said Widom,
who was appointed to the Gulf Coast
Claims Facility Outreach Committee
as part of the multidistrict litigation.
“We played a primary role in getting
clients and maintaining a lot of trust
with them.”
He brought in Grossman and
Gonzalez in representing hundreds of
individuals and businesses.
Grossman, who served on the insurance committee, said each of the
defendants—BP, the drilling companies, vendors and oil exploration
companies—had multiple insurance
policies.
“Many of them denied coverage.
It was elaborate layers of insurance
we had to cut through and assign responsibility, and eventually the case
settled,” Grossman said. “We were
able to bring pressure to bear on the
various insurance companies.”
Gonzalez said he’s never had a
case “resulting in a resolution with a
‘B’ in it,” referring to the settlement
valued at $4.5 billion for BP alone.
“It’s an extremely complex and
important case with ramifications involving damage to the environment,
damage to property, damage to businesses, damage to individuals’ health
and wrongful death cases as well,” he
said.
In early November, BP appealed
the settlement saying the claims administrator interpreted it in a way
that forced the company to pay out
billions of dollars in bogus claims.
“It’s been briefed and argued,
and we are waiting for a decision,”
Gonzalez said.
AA9
AA10
Business and Complex Litigation Finalist
Podhurst Orseck partner won $60 million award in cell phone case
John Gravante
Podhurst Orseck
John Gravante
Former Miami
nightclub operator
Clive Seecomar once
hobnobbed
with
rapper Flo Rida and
the Miami Heat’s
LeBron
James,
among others. In
April, he was hit
with a $60 million
default judgment for
civil theft in an al-
leged cell-phone refurbishing scam.
Seecomar, who owned Cell Solutions
International Inc., was ordered to pay
California-based Brix Group Inc. the $20
million it invested in his company plus
$40 million in treble damages.
John Gravante, a partner at Podhurst
Orseck, who represented the Brix Group
in its four-year battle, alleged Seecomar
used the money to fund his “lavish and
ridiculous lifestyle,” including the purchase of the now-defunct Karu & Y
nightclub in Miami.
“He bought a nightclub, he dumped a
ton of money into it, and that is where we
Finalist
Lawyer fought
off $50 million
suit for Stiefel
Laboratories
think most of the money went,” Gravante
said.
Filed in 2009, the lawsuit accused
Seecomar of operating a Ponzi scheme
in which Cell Solutions was supposed to
be buying used cell phones, fixing them
and selling them in Latin America.
“What he was doing was paying us
back with our own money and eventually he fell $20 million behind,” Gravante
said.
Founder Harry Brix never lived to see
the outcome. He died of a massive heart
attack, which the family believes was
due in part to the stress of the litigation.
Seecomar “was doing everything he
could to delay it. Every time I tried to depose him, he would fire his lawyer and
get a new lawyer. He had three or four
counsel,” Gravante said.
After a settlement, Seecomar filed for
Chapter 7 bankruptcy protection.
He has since agreed to a $17.5 million
judgment. Brix, in return, would not go
after the remaining money.
“What the family wanted most was
some sort of document that said he committed theft,” Gravante said. “We are now
going through the process of collecting.”
Corporate securities
Trio succeed in getting securities
class action dismissed for Mako
David Coulson
Greenberg Traurig
A
former
Stiefel
Laboratories Inc. shareholder’s attempt to recover $50 million from
the Coral Gables-based
company
was
shot
down in June when
U.S. District Court Judge
Robert Scola Jr. entered
summary
judgment
based on the statute of
David Coulson
limitations.
“The moral of this story
is that ‘equity aids the vigilant, not those who
slumber on their rights,’ ” the Miami judge
wrote in his ruling.
The case involved Stiefel’s former vice
chairman Richard MacKay, who alleged
he was conned by the pharmaceutical skin
care company and its principal, Charles W.
Stiefel, into selling them part of his stake in
the company in May 2008 for $9 million, or
about $12,000 a share. It was a fraction of
what GlaxoSmithKline PLC paid only months
later when it purchased Stiefel for $75,000
a share.
“Our theme was that in hindsight he
wishes he would have held on to his shares.
But the reality was there was no secret plan
to sell the company,” said David Coulson, a
litigator with Greenberg Traurig, who represented Charles Stiefel. “Mr. MacKay’s case
was the ultimate case of seller’s remorse.”
MacKay alleged violations of federal securities laws and Delaware common law for
fraud and breach of fiduciary duty alleging
the company had a “secret plan” to sell the
company to GSK.
Coulson argued MacKay brought the case
too late—a little more than two months late.
“I am confident we would have won on the
merits, but the judge never had to get there.
This was a case where a lot of the factual allegations were flat out false, and I proved that
when I deposed Mr. MacKay,” Coulson said.
MacKay filed a notice of appeal and has
until January to file briefs.
“Until they submit their brief we don’t
know what their arguments will be. It will be
interesting to see,” Coulson said. “Judge Scola
wrote a well-reasoned opinion.”
J. Albert Diaz
Louise McAlpin, Tracy Nichols and Stephen Warren
Louise McAlpin, Tracy Nichols
and Stephen Warren
Holland & Knight
A trio of Holland & Knight attorneys
successfully obtained the dismissal of
a securities class action against Mako
Surgical Corp. and two key players
by shareholders who alleged they
were misled about sales projections.
Company president and CEO Maurice
Ferré and CFO Fritz Laporte also were
named plaintiffs.
The lead defendants, Oklahoma
Firefighters Pension and Retirement
System and Baltimore County
Employees’ Retirement System, alleged the Davie-based surgical robotics maker issued false and misleading
guidance in January 2012 and again in
March 2012 that was premised on the
company’s strong 2011 sales that were
“artificially inflated.”
Holland & Knight attorneys successfully argued Mako’s projections were a
“faithful attempt” at predicting the fu-
ture and providing helpful guidance
and were not an attempt to defraud
shareholders.
Senior U.S. District Judge James
Cohn in Fort Lauderdale, who dismissed the lawsuit without prejudice
in May, ruled the plaintiffs failed to allege facts showing Ferré and LaPorte
had actual knowledge that the original
or revised guidance was false or misleading.
“The fact that the court is upholding the law gives companies like Mako
the encouragement they need to try
to be informative to their investors,
even running the risk that they may be
wrong and they may get sued. At least
the court will protect them from, what
would have been for this company, a
devastating class action,” said partner Tracy Nichols, who with partners
Louise McAlpin and Stephen Warren
successfully defended Mako.
Under the Private Securities
Litigation Reform Act of 1995, public companies are protected by a safe
harbor provision that allows them to
make forward-looking statements so
long as they include meaningful risk
disclosures without fear of liability, said
McAlpin.
Mako faced what Nichols called “a
classic conundrum” for growing companies.
“Younger companies are under a
lot more pressure to give guidance, but
their projections are more difficult because they don’t have a track record,”
he said. An interesting footnote: After
the class action was resolved, Stryker
Corp., the second-largest seller of orthopedic devices, agreed to purchase
Mako for $1.65 billion. Mako investors
will receive $30 a share. The offer carries an 86 percent premium.
“I am not saying that getting rid of
the class action led to that result, but
there’s a pretty good happy ending
for the shareholders who stuck with
the company because they are getting
quite a return on their shares,” Nichols
said.
Finalist
FinalistS
Winning without arguing before
judge ‘a great result’ in merger
With shareholder lawsuits,
lawyers tout ‘be prepared’
Brian Miller
Akerman
Anytime
Brian
Miller can win a case
without arguing it in
front of a judge is “a
great result,” he said.
Miller, chairman
of Akerman’s securities litigation practice, was successful
not once, but twice, in
persuading judges in
Brian Miller
Massachusetts and
Florida not to allow
shareholders to stop the planned $320
million merger between Boca Ratonbased timeshare developer Bluegreen
Corp., through its subsidiary, Woodbridge
Holdings, and Fort Lauderdale-based
BFC Financial Corp.
The shareholders sued alleging that
because BFC had more than a 50 percent ownership stake in Bluegreen, the
deal was an affiliated party transaction and should have been subject to a
higher standard of review, Miller said.
They also argued the offer was not fair
and the company had not been shopped
around before the merger agreement
was reached.
Seven lawsuits were filed — some
in Massachusetts state court where
Bluegreen is incorporated and some in
Palm Beach County where the company
is headquartered.
Miller was successful in getting a
Massachusetts state judge to stay the litigation in favor of the Florida case, “which
ultimately was a good strategic move because the Florida judge refused to allow
the shareholders to have a hearing on
their motion to enjoin,” Miller said.
He successfully argued the lawsuit had
been pending for six months before the
plaintiffs filed their motion for preliminary injunction and therefore should not
be considered an emergency.
“The judge ruled that plaintiffs had
not demonstrated that there was any
emergency because they had sat on their
hands for too long,” Miller said.
The shareholders voted in favor of the
stock-for-stock merger, but BCF was unable to obtain a stock exchange listing for
the shares, so the merger didn’t close.
A special committee then renegotiated
an agreement, which called for Bluegreen
to be acquired in an all-cash transaction
at $10 per share. The cash offer represented a nearly 74 percent premium, according to a company release.
Shareholders approved the new deal.
“What was really interesting about that
merger is that even some of the shareholders who were named as plaintiffs in
the case voted in favor of the merger,” he
said.
Despite the fact that the merger went
through, the litigation remains pending in
Palm Beach Circuit Court.
Michael Marsh and Brian Miller
Akerman
When
it
comes to shareholder lawsuits,
Akerman
attorneys Michael
Marsh and Brian
Miller are staunch
believers in the
Boy Scout motto
“be prepared.”
Michael Marsh
As more plaintiffs
attorneys
have turned up
the heat by filing shareholder
lawsuits
when
public companies
announce plans
to merge, Miller
and Marsh say
their early-on inBrian Miller
volvement with
colleagues in the corporate practice
group, as they put together these
mergers, has saved clients time and
money.
Such was the case when
Continucare Corp., a Miami-based
health care clinic operator, announced plans in June 2011 to merge
with competitor Metropolitan Health
Networks Inc. in a deal valued at
about $300 million.
AA11
Right after the announcement,
several plaintiffs firms moved in
with lawsuits seeking to enjoin the
merger on a number of claims, including breach of fiduciary duty, and
questioning whether the deal was
fair to investors. Miller, chairman of
Akerman’s securities litigation practice, and partner Marsh were prepared. They had worked with the
firm’s transaction lawyers early on to
make sure the proxy statements were
comprehensive and included all of the
disclosure information.
“When we litigate these cases, we
try to make sure disclosures are as
complete as possible so we are prepared to either win the case at the injunction hearing or the plaintiffs don’t
have a strong argument and therefore
we can negotiate a similar settlement
amount,” Miller said.
Their preemptive strategy worked.
Instead of lengthy litigation, they
negotiated a settlement within two
months for $350,000 and, even more
importantly, before a planned shareholder vote to approve the merger.
“The end result is that the plaintiffs
lawyers, who themselves don’t want
to go to a preliminary injunction hearing, generally understand that with
Akerman as the litigation counsel they
are in for a dogfight, and in this case
the end result of that strategy was a
big success for our client,” Marsh said.
AA12
Criminal
Attorney dismantles wiretap evidence against client
J. Albert Diaz
Joseph S. Rosenbaum
Joseph S. Rosenbaum
Law Offices of
Joseph S. Rosenbaum
When federal prosecutors
tried to link the sons of 77-yearold Miami imam Hafiz Khan
to his terrorist statements and
activity, they ran into problems.
First, they dismissed charges against Irfan Khan, finding
last year that there was not
enough evidence to substantiate the charges. Then a judge
dismissed the case during trial
against his brother, popular
Margate Mosque imam Izhar
Khan.
His
attorney,
Joseph
Rosenbaum, dismantled wiretap evidence against his client
and obtained an unusual judgment of acquittal (JOA) from
U.S. District Judge Robert Scola
— something almost unheard
of in a terrorism case.
Wiretaps and money transfers showed the father, head of
the Flagler Mosque, was willing to provide financial support
for the Taliban in his native
Pakistan. But evidence showed
his son, Izhar, was more impassioned about the Miami Heat
than politics.
Rosenbaum went through
hundreds of hours of taped
phone calls with his client. He
found most of them were about
getting 26-year-old Izhar Khan’s
fiancee into the United States.
The turning point was negating a voice mail his father
left for him in which the elder
Khan talked about the mujahedeen. Izhar Khan never heard
the message, instead calling
his father back within 14 seconds of missing the initial call.
Their conversation had nothing
to do with funding terrorists,
Rosenbaum discovered.
Assistant U.S. Attorney John
Shipley told the jurors the only
reason there was no evidence
against Izhar Khan was that he
was too smart and had covered
up his actions.
Rosenbaum said the comment sent a chill down his spine.
“That was one of the scariest
things I’ve ever heard,” he said
at the time. “The government
says obeying the laws and not
doing something wrong is my
grand scheme to cover it up?”
The defense received a blow
when the Pakistani government
cut a closed-circuit television
feed during the testimony of the
first of a handful of planned witnesses.
“If the judge didn’t give a DOA,
we were depending on Pakistan
witnesses,” Rosenbaum said.
“We had them lined up.”
The father was convicted
in March of arranging to send
$50,000 to the Taliban and was
sentenced to 25 years in prison.
But his son went back to his life
after his acquittal.
“He is very popular and back
in the mosque teaching the
kids,” he said.
Rosenbaum said the case is
a milestone in his legal career.
“I’ve had four JOAs. I’ve been
lucky, but this was a high point,”
he said.
Finalist
FinalistS
Akerman attorney helps
precious metal refining firm
3 attorneys successfully prosecute
postman’s murderer, identity thief
Richard Sharpstein
Akerman
Richard Rubin
was one of the
good guys in the
sketchy business
of precious metal
refining, routinely
working with federal law enforcement to identify
crooked players
Richard Sharpstein
in the industry.
Despite his cooperation, he found himself at the
mercy of the Drug Enforcement
Administration’s New York bureau.
The DEA team last year seized $20.2
million from the operating account
of Rubin’s company, accusing his
Republic Metals Corp. of money laundering for Peruvian narcotraffickers.
When financial institutions started
balking on credit lines for Republic to
buy gold, Rubin turned to Akerman
litigator Richard Sharpstein for help.
Republic had been operating unblemished for three decades, but it
was on the verge of collapsing after
the seizure.
Sharpstein learned a DEA agent
in Florida who was investigating
Peruvian companies told Republic
to keep doing business so the targets wouldn’t get suspicious. The
New York agents were unaware of
the Miami probe. In a quick reversal
last November, U.S. Attorney Preet
Bharara in New York abandoned the
inquiry into Republic Metals and ordered the release of its money.
Sharpstein pointed the blame at
New York DEA agents who ended
up almost shuttering a company and
turning out numerous employees.
Republic has the capacity to process
up to 10 tons of silver and gold a day
in an industry that is booming thanks
to jewelry-for-cash businesses.
“The bottom line is that this was
a ridiculous abuse of government authority where the right hand did not
know what the left hand was doing,”
Sharpstein said last fall.
He said it was even more outrageous because the New York DEA justified its actions by using Rubin’s comments in a 1999 article in U.S. News &
World Report against him. He talked
in the article about how drug money
was being laundered with gold purchases.
The magazine later issued a clarification that Rubin was not involved
in such activity. With the confusion
erased, Rubin resumed working with
federal agents from the FBI and the
Internal Revenue Service.
“He literally helped school law enforcement how the business worked,”
Sharpstein said.
Anthony Lacosta, Roy Altman
and Marlene Rodriguez
U.S. attorney’s office
Even by Florida’s brazen
criminal standards, the murder
of U.S. Postal Service carrier
Bruce Parton was shocking.
A well-known and wellAnthony Lacosta
liked postman, the 60-year-old
Parton was gunned down in
broad daylight on Dec. 6, 2010,
while delivering mail to the
Monte Carlo Condominiums
east of I-95 near the Golden
Glades interchange.
The 30-year veteran postal
worker was just weeks away
from retirement.
Roy Altman
The murderer wanted the
mail carrier’s “arrow key” to
get access to numerous mailboxes. The stolen key was used
to steal the identities of hundreds of victims in a fraudulent income tax scheme — the
crime du jour for many South
Florida criminals.
After a $100,000 reward was
Marlene Rodriguez posted and Parton’s daughter
made an impassioned televised
plea, a tip that consisted of
gang nicknames led investigators to Pikerson Mentor, who
was charged with 14 counts,
including murder.
Two accomplices — Saubnet
Politesse and Wilfred Georges
— also were arrested and
agreed to testify against Mentor.
Assistant
U.S. Attorney
Anthony Lacosta was first
chair in the trial. Assistant U.S.
Attorney Marlene Rodriguez
played a key role in the investigation and bringing the indictment against Mentor. When she
transferred divisions, Assistant
U.S Attorney Roy Altman was
brought in for the trial.
Lacosta said the case was
unusual because of its motive.
“It was shocking because
you had a truly innocent victim to further a white-collar
offense,” he said. “Those two
crimes don’t go together very
often.”
It also was a difficult case
because there were no eyewitnesses, he said. Forty witnesses
described various pieces of the
puzzle. Video surveillance from
a nearby complex captured
Mentor following Parton’s postal truck in a rented Cadillac,
which was traced back to him.
Mentor was sentenced to life
in prison in January. Politesse
received a 21-year prison sentence, while Georges got a 15year term.
AA13
AA14
Distressed Real Estate
Statute of limitations missed in foreclosure, they argued
Michael Cotzen
Ronnie Bronstein
Gary Mansfield
Jennifer Murillo
Mansfield Bronstein
The
Penninsula
C o n d o m i n i u m
Association got a windfall in May when a judge
ruled US Bank had
waited too late to refile a foreclosure case,
missing the statute of
limitations by 10 days.
The
association,
which had already foreclosed on a vacant unit
to recover unpaid association fees, was able
to take clear title of the
$1.3 million condo.
Michael
Cotzen,
Ronnie Bronstein, Gary
Mansfield and Jennifer
Murillo of Mansfield
Bronstein in Hollywood
argued the statute of
limitations started running when the bank accelerated the mortgage
on Nov. 9, 2007. The
bank filed a foreclosure
case in February 2008,
but it was dismissed
when the bank’s attorneys didn’t show up for
trial in 2011.
The bank refiled the
jill kahn
Michael Cotzen, Ronnie Bronstein, Gary Mansfield and Jennifer Murillo
foreclosure on Nov. 19,
2012, and argued the
date the first foreclosure was filed was the
date when the statute
began running.
In May, Miami-Dade
Circuit Judge Peter
Lopez ruled the second foreclosure action
was time-barred. The
case was complicated
by a lack of case law
because banks never
used to wait so long to
foreclose, and in the
rare instances when
they did they didn’t appeal for fear of creating
bad precedent, Cotzen
said. The bank did not
appeal in this case.
“We see cases unfortunately all the time
that have been going
on for years and years,”
Mansfield said. “Part
of the problem is the
sheer number of foreclosure cases.”
The delays have
made it difficult for the
associations to collect
their dues.
“The reason this is
such a significant case
is because a lot of these
associations find themselves between a rock
and a hard place,” said
Bronstein, noting condominium and homeowner
associations
used to just wait for the
bank to foreclose on a
property that had been
abandoned. Now, associations are increasingly foreclosing on the
properties.
The association had
been renting the unit
since it took title in
2010. Now, with no
threat that the bank will
try to take the threebedroom,
three-bath
condo, the association
is free to sell it.
One side benefit for
the association — delinquency rates in the
Aventura building have
dropped to 1 percent,
Mansfield said.
Before the association began foreclosing
on delinquent units, 20
percent of the building
was behind on dues.
Partners Bronstein
and Mansfield handled
the transactional part
of the case and partner
Cotzen and associate
Murrillo litigated it.
Finalist
Finalist
Attorney argued bank didn’t know
about mortgages on hot property
Bilzin partner argued for separate
litigation on mortgage buybacks
Paul Shelowitz
Stroock & Stroock & Lavan
Lenders
were
eager to help an
Irish developer assemble five waterfront properties in
downtown Sarasota
at the height of the
construction boom,
but when the botPaul Shelowitz
tom fell out and
construction didn’t
begin, the lawsuits started instead.
This wasn’t a simple foreclosure. The
developer had side agreements with
several partners who claimed they held
unrecorded mortgages that primed the
bank’s loan.
“They were claiming that the bank
was aware of their unrecorded mortgages,” said Paul Shelowitz, who represented Anglo Irish Bank, which collapsed
and was absorbed by the governmentrun Irish Bank Resolution Corp.
The bank had in fact made payments
on some of the notes, which were a form
of owner financing, Shelowitz said.
“The bank could have been a whole
lot smarter,” he said. “A lot of these arrangements were handled very loosely.
The bank did a lot of things that in hindsight they shouldn’t have done.”
Shelowitz, a partner at Strook &
Strook & Lavan, argued the bank didn’t
know about the mortgages and was just
making payments the developer asked it
to make from a credit facility.
“That breathed life into the junior
lienholders claims,” Shelowitz said.
Three days into what was scheduled
to be a five-day trial, the case settled.
“The junior lienholders walked away
from their claims,” Shelowitz said.
The bank’s $110 million foreclosure
was confirmed in May, allowing the 14acre property between Sarasota’s RitzCarlton and Hyatt hotels to go to auction
in August. The bank took title at the auction. Development approval for the site
on Tamiami Trail was extended through
2017 and will allow condominiums, offices, hotel or other commercial use.
The original plan for the property,
which was once called Sarasota Quay,
was to build 700 condos, a 175-room hotel, restaurants, shops and offices. After
razing the buildings on the property, the
developer defaulted in 2009, leaving an
unusually large vacant property in the
heart of downtown Sarasota.
“It’s the hottest property on the west
coast,” Shelowitz said. “There’s a bidding
war right now going on over the property.”
He worked on the case with David
Boyett of Adams and Reese in Sarasota.
Philip Stein
Bilzin Sumberg Baena Price & Axelrod
When the blame
game started after
the real estate crash,
everyone from lying
borrowers to lazy
loan originators to
corrupt
bankers
was targeted as villains. But culpabilPhilip Stein
ity in court is more
nuanced and can be
costly to prove as Philip Stein showed
Lehman Brothers Holdings Inc.
Lehman sued his client, Universal
American Mortgage Co., a loan originator tied to Miami-based home-builder Lennar Corp., claiming Universal
breached warranties on eight loans it
sold to Lehman. Similar buyback suits
have been filed all over the country by
banks trying to recover their losses in
the crash.
Lehman wanted Universal held liable
for alleged borrower misrepresentations
in the eight loans.
Stein, a Bilzin partner, argued each
loan needed to be separately litigated
because each had unique facts. But
there isn’t a lot of case law on this type
of litigation yet.
“This is the type of case that almost
never was litigated until the aftermath of
the financial crisis of 2008,” Stein said.
“Lehman has been more active than
anybody in trying to pursue claims that I
think are legally suspect.”
Senior U.S. District Judge James
Lawrence King in Miami ruled each of
the loans had to be adjudicated independently. He dismissed the claims on seven
of the loans, allowing Lehman to refile
them as separate lawsuits. He retained
jurisdiction over one loan and dismissed
it because Lehman’s claimed losses in
that case were too low to meet the requirements for federal jurisdiction.
“What [the ruling] does is it forces potential plaintiffs to think long and hard
about these kinds of cases,” Stein said.
“They often try to lump 50 or 75 or 100
loans together and get them dealt with
in one case. It’s going to be a long and
much more painful process when they
have to file cases for every single loan.”
Lehman filed separate lawsuits in
Colorado over the seven dismissed loans
and was unable to get a judge there to
consolidate the cases.
“The irony is my client was going to
all kinds of lengths to ensure the borrowers were creditworthy,” he said. “There
aren’t misrepresentations by these borrowers.”
FinalistS
AA15
Personal Injury
Sale of Versace
Lawyers win $38.5M negligence verdict
mansion closed in
less than two years
Ralph Bekkevold and Mark Bloom
Greenberg Traurig
Joe Grant
Marshall Socarras Grant
Everything
convicted Ponzi schemer Scott
Rothstein touched turned
to complicated, and the
sale of the iconic Versace
mansion was no exception.
But Ralph Bekkevold and
Mark Bloom of Greenberg
Traurig managed to close
the deal in less than two
Ralph Bekkevold
years in spite of the complications.
“This could have gone
on for years in the bankruptcy court and cost millions in legal fees and
added expenses,” Ralph
Bekkevold said. VM South
Beach LLC, a partnership of
the Nakash and Gindi families, purchased the debt on
Mark Bloom
the property in 2011 and
began foreclosure proceedings in federal court.
Meanwhile, the trustee in the bankruptcy of
Rothstein’s defunct law
firm filed a $4.92 million
lien based on his investment with money from his
Ponzi scheme.
As the foreclosure was
Joe Grant
winding through court, the
owner of the mansion, Casa Casuarina LLC, put
it on the market and said publicly that he could
get out of the lease that restaurateur Barton G.
had at the mansion.
That prompted Barton G. to complain he
couldn’t book events at the mansion. He wanted out. And his lease included paying for maintenance and upkeep and keeping the insurance
current.
“Who was paying the insurance? Who was
paying for security? Who was paying for maintenance and upkeep?” Bekkevold asked. “It became obvious to us no one was making those
payments.”
The property went into bankruptcy. Joe
Grant of Marshall Socarras Grant in Boca
Raton represented the owner and arranged for
the quick auction, bringing in brokers Jill Eber
and Jill Hertzberg to market the property and
Fisher Auction Co. to conduct the auction. The
law firm held $3 million in escrow from each
qualifying bidder.
Bekkevold and Bloom said their clients
covered the auction cost and added it to their
debt. The Nakash family founded Jordache
Enterprises Inc.
Only two other bidders showed up for the
September auction, celebrity developer Donald
Trump and Glenn Straub, owner of the Palm
Beach Polo Club. Neither topped VM’s $41.5
million bid.
“I was relieved when I saw it was them because those guys didn’t get where they are today by overpaying for a property,” Bloom said.
VM also owns other nearby properties, including the neighboring Hotel Victor.
“They can be in a position to set the standard for what a hotel experience is going to be
on Ocean Drive,” Bekkevold said. “Some people
think it’s become a little honky tonk. They’re
committed to raise the bar.”
Melanie Bell
Kristin Bianculli, Robert Kelley and Bonnie Navin
Robert W. Kelley
Bonnie Navin
Kristin Bianculli
Kelley Uustal
When Lauderdale Lakes accountant Dale Whyte coded out under anesthesia at a Pompano Beach clinic
during what was supposed to be a
“joint manipulation” demonstration
and seminar, a roomful of health care
providers was observing as Whyte,
33 at the time, slipped into a coma.
Four years later he remains in a
minimally conscious state. His family turned to the medical malpractice litigators at Kelley Uustal in Fort
Lauderdale, who sued more than 30
physicians and other entities and settled with many of them. Then in May
the lawyers went to trial against the
two main doctors involved, winning
a $38.5 million negligence verdict
from a Broward jury in a month-long
trial.
Lead plaintiffs attorney Robert
Kelley said the verdict was just. “It is
going to take a huge amount of money to take care of Dale for the rest of
his life. It is a real tragedy. He is still a
young guy.” Witnesses testified at trial
the victim has some awareness of his
surroundings. His daughters testified
that their father cries.
The verdict included $23.5 million
for Whyte’s lost earnings and medical expenses, $5 million for pain and
suffering; and $10 million for his two
daughters.
Kelley said the verdict can be collected since the doctors have insurance. He said the companies turned
down an offer to settle.
The early settlements were
enough to build the victim a house
and provide round-the-clock care
by his mother, sister and nurses
in Georgia. The settlements were
reached with various sponsors and
participants in the seminar as well as
the outpatient surgical center, which
was shut down by the state.
The two doctors at trial were
Dr. Basil Mangra, who conducted
the procedure, and Dr. Thomas
Rodenberg, the anesthesiologist.
“At trial I got Dr. Mangra to admit
that Dale Whyte did not need the procedure and the only reason he did it
was he was on hard times financial-
ly,” said Kelley.
He said Rodenberg’s license has
been suspended. Mangra has not
been suspended.
The operation on Whyte took
place at Atlantic Surgical Center
in Pompano Beach, where Whyte,
complaining of leg cramps, went for
“manipulation under anesthesia.”
Normally joint manipulation is not
done under anesthesia, but this was
a new procedure being demonstrated by the doctors.
“We found out they were having a
seminar at the time in the operating
room on how to teach all these different doctors how to do this bogus
procedure where they put the patient under anesthesia, so instead of
billing $200 they can bill $30,000. It
really is in my opinion a scam procedure,” Kelley said.
Bonnie Navin at Kelley Uustal assisted at trial, and Kristin Bianculli
worked on the complicated settlement arrangements.
The defense attorneys were Brian
Russell and James White of Bobo,
Ciotoli, Bocchino, Whit, Buigas &
Russell in North Palm Beach.
FinalistS
Drunken-driving case ‘was about getting out the message’
Brett Rosen and Judd Rosen
Goldberg & Rosen
A drunken-driving, head-on collision on Tamiami Trail that claimed
the lives of two Maryland retired
teachers in 2009 resulted in a verdict
of $35 million against the driver in a
civil trial and an explosion of publicity to deter drunken drivers.
With the driver, Miccosuwkee
Tribe member Thomas Cypress, in
prison for 12 years for a criminal case
of driving drunk with a suspended license, it’s unclear whether much of
the verdict can
be collected.
“In this case
it was not about
the money for
us,” said plaintiffs
attorney
Brett
Rosen
at Miami personal
injury
Brett Rosen
firm Goldberg &
Rosen. “It was about getting out the
message that drunk driving is unacceptable and getting what was right
for the clients who we believed in.”
He tried the
case with his
brother and senior
partner
Judd Rosen.
“If we were to
take this case all
the way to trial
knowing
they
might
not
collect,
Judd Rosen
we were willing
to do that for them,” Brett Rosen said.
“It is a $35 million verdict, but it is
See personal injury, Page AA16
AA16
From Page AA15
personal injury: Brothers often try cases together
more about the message. This guy was a bad dude, a
drunk driver, and if we stop one person from getting
behind the wheel it will be worth it.”
Rosen said apart from the jury trial, the firm has
collected settlements valued at $100,000-plus from the
owner of the car Cypress was driving and the Davie
restaurant where he was drinking. According to investigators, his blood alcohol was three times the legal limit
in the crash that killed Robert and Paulette Kirkpatrick.
To collect further, the attorneys are exploring avenues including bad-faith claims against the insurance
company as well as collecting any stipends that Cypress
may get from the tribe or the government.
Cypress did not attend the civil trial or contest the
claims. He was represented by Cary Capper at Wicker,
Smith, O’Hara, McCoy & Ford in Miami. Capper told
the court Cypress was without assets and paying what
restitution he can for his criminal case.
Brett Rosen said he and his brother often try cases
together.
“I pretty much worked up the case, and we tried it
together. It’s a family practice. A lot of times Judd will
work it up and try it with me,” Brett Rosen said.
In the first phase, a three-day trial resulted in the
jury awarding $30 million in compensatory damages.
Brett Rosen did the openings and several witnesses,
and Judd did closing arguments.
The second phase was a one-day trial on the punitive damages in which the jury awarded $5 million.
Brett Rosen said they were not surprised by the size
of the award.
“It is what we asked for. We pretty much told the
jury you can give us all the money in the world and it
wouldn’t matter. The clients were unbelievable people.
The jury saw how close-knit a family they were. It was
a very emotional trial.”
FinalistS
Complex settlement agreed to in Miami Dade College garage collapse
Ervin Gonzalez
Colson Hicks Eidson
Stuart Grossman
Grossman Roth
Alan Goldfarb
Alan Goldfarb P.A.
Steven Befera
Cole Scott & Kissane
Mark Hendricks
Lydecker Diaz
Packed into a conference room with a mediator in downtown Miami
for more than two days
in April, about 40 attorneys agreed on a complex
compensation settlement
in the deaths of four people and five serious injuries in the construction
collapse of a Miami Dade
College garage in Doral.
Terms of the confidential settlement such as
how the claims would be
covered were disclosed.
The settlement is believed
to be worth more than
$35 million, with most of
it going to the families of
four workers who died
Ervin Gonzalez
in the Oct. 10, 2012, construction accident.
The multi-party litigation against a dozen
contractors began contentiously, but people
involved said the intensive mediation in April
demonstrated an unusual
level of cooperation when
parties that did not want
their brand names associated with the deadly
construction
accident
agreed to settle.
On the defense side,
the parties included lawyers for the construction
contractors and their insurance carriers.
Steven Befera, a litigation partner with Cole
Scott & Kissane, rep-
Stuart Grossman
resented
contractors
Coreslab Structures Inc.
and Solar Erectors U.S.
Inc., which erected the
building. He said the
settlement enabled both
sides to avoid “unnecessary legal wrangling and
delays and bring closure
to the families who suffered these terrible losses.”
Three litigators from
three law firms coordinated the plaintiffs’ strategy.
Stuart Grossman of
Grossman & Roth in
Miami had one death
case, Alan Goldfarb P.A. of
Miami handled one death
case, and they jointly
represented four injured
Alan Goldfarb
workers. Ervin Gonzalez
at Colson Hicks Eidson in
Coral Gables represented
the families of two dead
men and one injured
party.
Gonzalez said he,
Grossman and Goldfarb
coordinated the litigation. “We were the ones
that hired all the experts.
We got all the discovery
and filed the pleadings.
We made the discovery
of what the failure was.
And we came up with
a strategy to get these
cases heard quickly,” said
Gonzalez.
The general contractor,
Ajax Building Corp., was
defended by a team from
Lydecker Diaz with Mark
Steven Befera
Mark Hendricks
Hendricks of Miami. In a
statement, the firm said
one of the challenges for
the defense was working
with about 20 insurance
carriers.
At mediation, about 10
plaintiffs attorneys joined
in. For the defense, there
were about 30 attorneys
for contractors, subcontractors, engineers, architects as well the insurance lawyers and their
coverage counsel.
Also instrumental on
the defense side was
Peter Stillis, managing
partner of the Miami office of Weinberg Wheeler
Hudgins Gunn & Dial, cocounsel for Coreslab and
Solar Erectors.
There are still four remaining injury claims in
litigation.
Miami Dade College
also has a commercial
claim for the damage to
the garage and breach of
contract.
In
a
statement,
Goldfarb noted the case
was challenging because
of the highly technical
vertical construction issues and because it was
difficult to preserve collapse evidence. Also, because the victims were
employees of the contractors, if the case had gone
to trial, plaintiffs would
have had to overcome the
workers’ compensation
bar to third-party suits.
FinalistS
Client gets ‘sensible amount’ after brain injury from car lot head-butting
John Romano
and Dustin Herman
Romano Law Group
After years of legal work, a
10-day trial and a $28.5 million jury verdict, a Melbourne
man who suffered a brain injury
when a car salesman head-butted him in the auto dealership
parking lot is collecting a mega
settlement to be paid in installments to him and his family.
“Part of the money is being paid directly to the family.
Another part is paid through a
structured settlement where
payments occur over the course
of many years,” said lead plaintiffs attorney John Romano at
John Romano Law Group of
Lake Worth.
The jury awarded his client
$28.5 million in an
October
2012 trial,
seven years
after
the
parking lot
punch that
knocked
S h a w n
John Romano
Adams to
the ground. Rather than wait for
appeals, the parties agreed to a
post-verdict confidential settlement.
“It was settled for a sensible
amount. For our client it was a
very good and important settlement. They are trying to put all
this behind them, get their kids
educated and move on in spite
their dad having a permanent
brain injury,” said Romano.
“The most significant thing —
in this jury
award — is
they awarded $10 million to his
wife
on
her loss of
consortium
claim and
$3.5 million
Dustin Herman
to the three
teenagers who are in school.
This jury properly recognized
that when a family member has
a brain injury, it is an injury to
every member of that family,”
Romano said.
Adams was driving to work
on U.S. 1 in Melbourne in 2005
when he witnessed an accident
in which one driver made an illegal left turn into a car dealership, cutting off an elderly motorist. Adams, then 43, stopped
and got out to assist the woman.
The driver of the other car,
Jason Neal, who was the sales
manager of the Imported Car
Store, was verbally abusing the
woman driver and when Adams
tried to intervene Neal grabbed
Adams by the shoulders and
knocked him to the ground
where he lay unconscious.
Adams suffered a permanent
head injury.
The jury found the car dealership negligent in its supervision
of Neal. Neal also faced a criminal charge for which he served
60 days in jail, said Romano.
At the civil trial in Brevard
County, plaintiffs put on about
25 witnesses, including about
10 doctors who testified in court,
family members and eye witnesses to the accident including
the elderly driver.
Romano said it was a team
effort. He handled important
pre-trial depositions, prepared
for trial and conducted mock trials with the team, jury selection,
half the opening statement and
cross examinations.
Dustin Herman, with the
Romano firm, was lead attorney
on motions and handled all the
digital presentations of evidence.
The case was referred to
them by Douglas Beam P.A. in
Mebourne, who continued as
part of the trial team and put on
witnesses at trial.
St. Petersburg
attorney
Elizabeth Zwibel of the Law
Office of Elizabeth A. Zwibel
handled half of the 2½-hour
opening statement as well as
medical witnesses and experts.
AA17
Pro Bono
Pro bono team wins order in favor of public defenders
Parker Thompson, Julie Nevins,
Laura Besvinick, Alvin Lindsay,
Matthew Bray and Carol Licko
Hogan Lovells
J Albert Diaz
Laura Besvinick, Julie E. Nevins, Alvin F. Lindsay, Parker D. Thomson, Mathew R. Bray and
Carol Licko, with Hogan Lovells
A pro bono team from Hogan Lovells in
Miami already made history by persuading
the Florida Supreme Court to activate the
federal Gideon v. Wainwright decision from
1963 within a state court system.
Yet team leader Parker Thompson won’t
be satisfied until he secures an administrative order, or AO, that forcefully executes
the high court’s May 23 ruling in favor of
the Miami-Dade public defender’s office.
The decision against the state allows overburdened public defenders to decline appointments to new noncapital felony cases
so they can effectively represent indigent
clients.
“I hope it will be a beacon of light
throughout the country, but I intend with
the AO to make sure it’s a beacon of light
within the state of Florida,” said Thompson,
who has won many honors for his nonbillable work during a storied career.
Miami-Dade Public Defender Carlos
Martinez approached Thompson because
he represented the office in two Florida
Supreme Court cases involving mentally
impaired juveniles in the 1980s.
The problem this time was caseloads
averaging a staggering 400 noncapital felonies per attorney per year. Two national
organizations recommend a limit of 150
cases a year, and two state agencies rec-
ommend 100-200 cases.
“The situation was, to say the least, dire,”
Thompson said. “The public defender was
doing triage. They couldn’t possibly represent anybody the way they should be represented.”
Two Miami-Dade trial judges agreed,
but the Third District Court of Appeal reversed them. That set the stage for a trip
to Tallahassee, where Thompson presented
the case for Martinez.
For the state, Attorney General Pam
Bondi’s office and a group of prosecutors
argued public defenders are constitutionally required to withdraw from cases one
by one based on a defender’s individual circumstances rather than seeking systemic
relief by shifting thousands of anticipated
cases at once.
Writing for a 5-2 majority, Justice Peggy
Quince gave short shrift to that position.
Making public defenders withdraw from
cases individually “is tantamount to applying a Band-Aid to an open head wound.”
The two cases were remanded to the trial court for further proceedings. Thompson
will argue for a rule defining overload and
setting a maximum number of cases that
can be handled without creating unacceptably long waits for trial.
He said the big question was “whether
the courts would have the courage to do
what’s right in light of the fact that the
Legislature funds the whole judicial system.
“We found that the Supreme Court had
great courage.”
Finalist
FinalistS
Conviction reversed on appeal
in stand-your-ground test
Mission United community initiative
seeks to help veterans and their families
Bruce Zimet
Bruce A. Zimet P.A.
Bruce Zimet
Perhaps others see Marissa
Alexander as a
cause, a symbol
of domestic violence or racial
bias, a test case
for stand your
ground.
Bruce Zimet
sees her as a hu-
man being.
“I looked at it as a woman who
did everything right in her life, who
had children at a very young age,
was a mother, worked, went back
to school, got her B.A. degree and
her master’s degree, raised kids
who are great students and is looking at a 20-year sentence. And it
wasn’t right.”
When the Jacksonville woman
was convicted of aggravated assault
for firing a shot into the air near her
abusive, estranged husband, Zimet
wasn’t aware of her case. Then a
New York lawyer who specializes in
battered-woman claims called him.
They’d worked together before.
“I just couldn’t imagine many
other professionals who would say
no to this,” Zimet said. He brought
in another former collaborator,
Faith Gay, a New York lawyer who
could tap the resources of her global litigation firm, Quinn Emanuel
Urquhart & Sullivan.
Together they turned things
around. On Sept. 26, the First
District Court of Appeal reversed
Alexander’s conviction and ordered
a new trial.
She had already spent 20
months behind bars. Now they’re
trying to get her released on bond.
Every time Zimet needs to go there,
he drives four hours from his West
Palm Beach home.
“It’s difficult to interact with
someone in prison, but I think we
have a very trusting relationship,
and I am moved by her strength
and her ability to go through this
process,” he said. “She’s the one
who didn’t get a fair trial, and she’s
the one in prison and she’s still
committed to having the system
work correctly.”
Client and lawyer share that
commitment. “It’s really important
to people to have respect and believe in the ability and integrity of
the judicial system to have the right
result,” Zimet said.
Known for his criminal defense
work on behalf of clients like football players Brian Blades and Mark
Duper, Zimet quietly taught trial advocacy for 20 years. He traces his
pro bono “addiction” to his time as a
federal prosecutor in the late 1970s
and the mentoring of Watergateera litigators like Jon Sale.
“The philosophy back then was
that the result wasn’t as important
as the process.”
Stephen Moss and Amber Goethel
Holland & Knight
Stephen Moss
Amber Goethel
During the October government shutdown, real estate lawyer Stephen Moss
was in Washington getting something
done.
He was part of a small group that
met Army Lt. Col. Yesenia Roque at the
Pentagon to fill her in on Mission United,
a Broward County community initiative
to help veterans and their families with
jobs, housing and legal services.
“She said there are 40,000 organizations around the country, and I’ve never
seen the United Way and the Red Cross
join together like this,” Moss recounted.
“You all need to take this national.”
Roque, who is attached to the Office of
the Joint Chiefs of Staff, was scheduled
to fly down for a Nov. 21 Mission United
advisory committee meeting.
United Way came up with the idea for
the group and announced it at a 2011
fundraiser; Moss was there and volunteered. Two weeks later the longtime
philanthropic leader was tapped to chair
what became Mission United.
It’s a good fit. Moss served as an Army
company commander in Vietnam, but he
said, “My daughter was really my inspiration to raise my hand that night and to
get involved.”
A former member of the Army military
police corps, she had a tough time when
she returned from Iraq with a shoulder
injury from a firefight. “There were so
many difficulties and obstacles for her
and her fellow soldiers, we wished there
was something we could do to help,” her
father said.
Volunteer Amber Goethel’s brother
and grandfather served in the Army. She
chairs the group’s pro bono legal services subcommittee.
“Amber’s been absolutely phenomenal,” Moss said. In less than a year since
Mission United launched, she’s signed
up nearly 250 lawyers for pro bono
work, coordinating with a full-time legal
aid staffer and reaching out to bar associations and judges.
The community overall has been
“amazingly” supportive—“like no one
said no”—but there have been challenges.
“Vets are very proud, and they wait
too long sometimes,” Moss said. He
tells the story of a Navy vet who called
Mission United threatening suicide if he
couldn’t get legal help.
The man had a mental disability due
to a combat injury, and Maria O’Neill,
the legal aid project attorney, took on his
problems as her own.
“He is now living with his mother and
back in society,” Moss said.
AA18
pro bono Finalist
product liability
Rules of
confidentiality
also bind child
welfare lawyers
Verdict for defense held owners
accountable for tire care on motorcycle
Robert Moore
Baker & McKenzie
When a certain
teenager
delivers takeout from
a nearby restaurant,
the
lawyers of Baker &
McKenzie’s Brickell
office might shake
their heads at his
offbeat fashions,
Robert Moore
but they wear indulgent smiles.
The youth is a success story about
the law and human connection.
Because of R.L.R., as he’s identified in
court papers, it’s clear that juveniles
can talk openly to their lawyers, knowing their secrets will be safeguarded.
R.L.R., 17, entered the foster care
system as a 12-year-old. Three years
later, when he met a tax lawyer named
Robert “Bobby” Moore, he had lived in
40 homes. He kept running away.
A trial judge appointed as R.L.R.’s
attorneys ad litem Moore, a mentor
to troubled kids since college, and
Angela Vigil, head of Baker’s North
American pro bono practice.
Moore, 35, set out to establish a relationship that had nothing to do with
legal strategy.
“We just spent time together like
two guys,” going to malls, getting a
meal, talking about cars, he said. “My
thought was that you have to build
some trust, because kids in their formative teenage years are very skeptical of an adult trying to tell them
what’s in their best interest.”
Multiply that by 10 or 15 adults
when a child is in the foster care system.
R.L.R. still had problems with his
placements, and he ran away two
more times on Moore’s watch. That
gave the lawyer his biggest challenge:
the tension between his roles as the
teen’s confidante and as a counselor,
part of the system R.L.R. distrusted.
“It’s tough to say no, I can’t give you
money; no, I can’t feed you because
you need to go to the agency; and no,
I can’t just take you to my place,” he
said. “I wanted to just be able to fix it.”
The second time R.L.R. ran away,
Moore knew where he was but
wouldn’t say, Miami-Dade Circuit
Judge Cindy Lederman insisted on
getting the information to protect the
teen.
The Third District Court of Appeal
weighed in June 19. Child-welfare
lawyers are bound by the same rules
of confidentiality that govern other
attorney-client relationships, Judge
Richard Suarez wrote in reversing
Lederman.
Suarez even commended Moore
and Vigil “for their ongoing dedication
and commitment to R.L.R.’s safety and
welfare.”
Moore’s response: “We were very
proud because we stood up for his
rights.”
AM Holt
Lee Teichner
Lee Teichner
Holland & Knight
Donald and Johanna Campbell, a
Hillsborough County couple in their 70s,
were riding their Harley-Davidson motorcycle when the rear tire blew out.
Johanna suffered severe injuries to
her elbow, requiring reconstructive surgery. The 2010 accident left her with
limited motion, and the couple sued
Pirelli Tire LLC, claiming a manufacturer’s defect.
The damage exposure for medical
bills was $500,000, and had the couple
prevailed on liability they would have
pursued additional damages of several
million dollars.
Pirelli relied on Holland & Knight’s
products liability litigation partner Lee
Teichner. His team included associate
Eleni Kastrenakes and trial counsel
Peter Ezzell.
Before trial, Teichner and company
got Pirelli’s Italian parent and a subsidiary dismissed. The testimony of the
plaintiff’s expert witness was also limited because he had no chemistry experience.
The defense also stopped plaintiffs
from presenting to the jury only the
damaged half of the tire, which was on
the road for 2,500 miles. They gave the
court no satisfactory reason for cutting
the tire.
At trial, the defense argued the tire
failure was due to a prior road hazard
incident. The plaintiffs counsel tried to
limit the road hazard theory because
the precise object and timing of the impact could not be established.
Campbell said he didn’t recall hitting
anything that could have damaged the
tire. Teichner compared that testimony
to awaking with a bruised leg and not
noticing bumping into a table the day
before.
A routine maintenance check would
have revealed a cut, showing layers of
separation.
In response, the plaintiff argued that
if the rear tire was damaged by a road
hazard, the front tire should show signs
of the same damage. Not necessarily, the
defense argued.
Rear tires often go “off track,” particularly on cornering maneuvers, the
defense countered.
U.S. District Judge Robin Rosenbaum
in Fort Lauderdale hampered the defense case by allowing—over objection
and argument—a Cassisi inference,
which allows a plaintiff to take a product defect case to the jury if the plaintiff
cannot pinpoint a defect in the product.
Notwithstanding the court’s ruling,
the defense was able to convince the
court that a finding of a prior impact
should negate the application of the
Cassisi inference.
The jury found the tire was not defective. The verdict for the defense holds
owners and drivers accountable for the
care and maintenance of their tires,
Teichner said.
The Campbells agreed not to appeal.
In exchange, Pirelli did not seek attorney fees and costs.
AA19
AA20
product liability FinalistS
Lawyers took Reynolds to trial in lung cancer death of smoker
Alex Alvarez
Alvarez Law Firm
Gary Paige
Gordon & Doner
Alex Alvarez
Joan Schoeff Spolzino lost her husband
suddenly to lung cancer.
He was diagnosed was smoking-related
disease in April 1995, and he was dead two
months later.
James Edward Schoeff was a photographer when the couple married shortly after
high school. Drafted into the Marine Corps
at the start of the Korean War, he served his
two years in combat.
An executive in window and door manufacturing, Schoeff retired in the 1980s. But
he had a pack-a-day smoking habit that be-
Gary Paige
gan in 1948.
Alex Alvarez of the Alvarez Law Firm in
Coral Gables and Gary Paige of Gordon &
Doner in Pembroke Pines filed the case in
2008 and brought R.J. Reynolds Tobacco Co.
to trial in February.
Joan Schoeff told the Fort Lauderdale
jury how her husband was chained to his
addition. He would light up from the moment he awoke each morning. Dinner and
theater engagements were constantly interrupted by his need to step out for a smoke.
Near the end, her husband would remove
his oxygen mask to have a cigarette.
Dr. Luis Villa Jr., a Miami oncologist, persuaded jurors that Schoeff’s smoking caused
his lung cancer.
R.J. Reynolds’ defense team claimed the
smoking did not cause the cancer but offered no medical expert testimony to sug-
gest an alternative cause.
“They also said that he was not addicted to cigarettes, that he made a choice to
smoke,” Alvarez said.
Following a two-week trial, the jury said
Schoeff was addicted, and years of smoking
Lucky Strike, Winston and Kool cigarettes
caused his death. Reynolds was found 75
percent at fault.
Spolzino was awarded $10.5 million in
compensatory damages. Reynolds also was
hit with $30 million in punitive damages.
FinalistS
Attorneys secure $24 million settlement in Chinese drywall lawsuit
Gregory Weiss
Leopold Law
Adam Linkhorst
Linkhorst & Hockin
Gregory Weiss
Adam Linkhorst
One of the more complex defective
Chinese drywall lawsuits to surface in
South Florida involved the Villa Lago
at Renaissance Commons in Boynton
Beach.
Here was a 328-unit, two-tower
condominium complex where the developer, RCR Holdings II LLC, held title
to one-third of the units and sold the
rest.
Once the residents became aware
of the toxic drywall, they formed a
class action and sued RCR Holdings.
However, since RCR kept equity in the
property, the two sides soon joined
forces against the general contractor — Coastal Construction of South
Florida Inc.—and other defendants.
Gregory Weiss of Leopold Law in
Palm Beach Gardens represented
RCR Holdings, and Adam Linkhorst of
Linkhorst & Hockin in Jupiter was local counsel for the class. He is now with
Ciklin Lubitz Martens & O’Connell.
The class also was represented by
Gary Mason of Whitfield Bryson &
Mason in Washington.
Like most Chinese drywall cases,
the state litigation was stayed once the
federal multidistrict litigation was set
up in New Orleans.
Linkhorst’s lead plaintiff, Wendy
Hobbie, and RCR Holdings maintained
Coastal and the other defendants knew
the drywall was defective when it was
being installed. They further alleged
Coastal’s conduct fell below the duty
of care owed the class.
The defendants denied knowingly
using defective drywall. But one by
one, each defendant reached a settlement. In Coastal’s case, this required
going through six mediations.
“The sixth finally being successful,” said Gregory Weiss, now with
Mrachek, Fitzgerald, Rose, Konopka
& Dow. “The last mediation was in
New Orleans. It occurred Jan. 29, and
we signed an agreement in the early
morning hours of that day, like 2 a.m.”
Coastal agreed to pay $24 million.
U.S. District Judge Eldon Fallon approved a preliminary settlement April
24.
The Villa Lago owners are now using the funds in a remediation project
to remove the drywall.
AA21
Public Interest
Finalist
Child advocate gets nursing care
for girl with life-threatening disorder
Pro-bono
counsel
fought for
Haitian-American
journalist
Scott Ponce
Holland & Knight
Melanie Bell
Nicole Coniglio and Howard Talenfeld
Howard Talenfeld and
Nicole Coniglio
Colodny, Fass, Talenfeld,
Karlinsky, Abate & Webb
A 45-year-old Miami mother
would rush home from her fulltime job to care for her 11-yearold daughter, who was born with a
tragic and life-threatening disorder,
Marshall-Smith syndrome.
The condition, blamed for many
deaths in early childhood, severely
impairs respiration, requiring a
tracheotomy to facilitate breathing.
Skilled nursing care is required to
care for the child since clogs can
arise in the breathing tube and
starve the brain of oxygen and cause
permanent and life-threatening neurological damage.
The child’s doctor prescribed
round-the-clock nursing care since
the mother worked full-time and
was not capable of providing the level of nursing care required for such
a critically ill child.
However, on April 9, 2013,
Florida’s Agency for Health Care
Administration informed the mother
that only 18 hours a day of nursing
care would be provided on weekdays, 15 hours on Saturday and 11
hours on Sunday.
The child’s mother enlisted the
help of prominent child advocate
Howard Talenfeld to appeal the
decision. For more than 20 years,
Talenfeld has advocated for Florida’s
disabled, at-risk and foster children,
changing many state laws and public policies in the process.
Following an appeal by Talenfeld
and his associate, Nicole Coniglio,
AHCA initially agreed to provide
round-the-clock care to Talenfeld’s
client—by a licensed practical nurse,
not a registered nurse. Talenfeld and
his client felt that a skilled registered
nurse was needed.
Talenfeld and Coniglio appealed
again. They spent more than 100
hours on the appeal, flying to Tampa
to depose AHCA’s doctor who made
the original determination on how
many nursing hours Talenfeld’s client should be granted.
After the hearing, AHCA reversed
its position and agreed to provide
24-hour-a-day care by a registered
nurse, which Talenfeld’s client is
now receiving.
Additionally, in February 2013,
after Talenfeld’s successful petition
and public criticism of its policy,
AHCA changed its rules affecting
hundreds of similar children statewide. Now, the state will pay for
round-the-clock qualified nursing
care if parents or family members
can demonstrate they lack the skills
to care for their ill children.
“Not only did this case save this
child’s life, but I’m sure there are
scores of children around the state
in which AHCA was doing the same
thing, forcing parents to care for
children with severe breathing problems,” said Talenfeld. “AHCA did this
in the name of saving money on the
backs of fragile children. I think we
were fortunate to achieve huge systemic change ... and make progress
for many, many kids.”
Haitian
Prime
Minister
Laurent
Lamothe
didn’t
like what HaitianAmerican journalist Leo Joseph was
writing about him,
including an allegation he improperly
benefitted from the
Scott Ponce
sale of a telecommunications company.
So Lamothe sued Joseph in Miami
federal court, seeking an injunction barring the reporter and manager for the
New York-based Haiti-Observateur from
ever writing about him again.
Joseph lacked the funds to fight the
suit, and a default judgment was entered against him in February.
“Leo Joseph is hereby permanently
restrained from publishing future communications” about Lamothe or businessman Patrice Baker in “either their
professional, personal or political lives,”
U.S. District Judge Ursula Ungaro in
Miami wrote in her order.
The Reporters Committee for
Freedom of the Press got wind of the
case and immediately sought pro bono
counsel to fight the Miami case. Holland
& Knight’s Scott Ponce, who specializes
in commercial litigation and media law,
agreed to step in.
“In some countries, the government
is allowed to decide what a reporter
can or can’t say in the newspaper, and
the First Amendment doesn’t allow that
here in the Unites States,” said Ponce.
“As lawyers, it’s our obligation, when we
see the government encroaching on the
freedom of the press, to do something
about it.”
Ponce quickly filed a motion asking
the court to set aside the default judgment and injunction, arguing it amounted to unconstitutional prior restraint. In
March 4, Ungaro set aside the judgment
and also dismissed the plaintiff’s complaint, saying it did not sufficiently allege malice.
Undeterred, the prime minister filed
an amended complaint.
Ultimately, Ponce and his client
agreed to settle with Lamothe. The settlement called for Joseph to publish a
declaration written by a witness in the
case stating that some of the information in one of the articles was wrong.
Joseph did so even though the witness
later recanted that information.
Ponce declared victory in the case,
saying, “The prime minister wanted a
retraction. He didn’t get it. He wanted
an apology. He didn’t get it. He wanted
an order saying he would never be written about again. He didn’t get it.”
Joseph, who thanked Ponce profusely,
is back at work writing about Lamothe
and Haiti for his bilingual newspaper.
AA22
Public Interest
Finalist
Loyalty to
UF student
newspaper led
to settlement
REAL eSTATE
$32 million fraud claim
is beaten back by Lennar
Thomas R. Julin
Hunton & Williams
Thirty-five
years ago when
he flirted with a
career in journalism, Thomas Julin
was the editor of
the Independent
Florida Alligator,
the University of
Florida’s student
Thomas R. Julin
newspaper.
So whenever the
Gainesville paper has needed help over
the last 30 years, Julin has jumped in.
“I have this undying loyalty to the
paper,” he said.
Julin’s biggest challenge to date
was in 2009, when the newspaper informed him about a new administrative rule approved by the public university requiring the removal of all its
newspaper racks on campus.
The university said it planned to
install its own racks to be controlled
by the administration. Administrators
complained the Alligator’s orange-andblue news racks were aesthetically unappealing — despite the fact that these
are the school’s officials colors.
Additionally, the university would
charge high fees to the Alligator to use
the racks, which also would be used to
sell other newspapers.
The rule was a complete shock to
the newspaper, which believed it was
a move to retaliate for negative stories and censor the paper by having
the ability to remove it from the news
racks.
“The university adopted a rule that
was filled with clear violations of the
First Amendment, such as imposing fees that would exceed the cost
of administration,” Julin said. “It had
all sorts of very vague standards that
meant the university could use the license requirement to retaliate against
content.”
For several years, Julin engaged in
discussions with the university’s general counsel, while thousands of students held protests. Still, the university
refused to change its plan. So in August
2012, Julin filed suit in federal court in
Gainesville.
Julin said the general counsel was
reluctant to appear at a preliminary injunction hearing and instead initiated
settlement talks with him. Ultimately, a
settlement was reached calling for the
university to install some of its black
news racks in the school’s historic section but allowing the Alligator to keep
dozens of its own news racks in the
central part of campus. Additionally,
the rack fee requirement was dropped.
“As in all settlements, neither side
was 100 percent thrilled,” Julin said.
“But this has allowed the paper to survive.”
Wendy Polit
Jose M. Ferrer
j. Albert Diaz
Mitchell E. Widom
Mitchell E. Widom
Jose M. Ferrer
Wendy Polit
Bilzin Sumberg Baena Price
& Alexrod
Mitchell E. Widom, Jose M.
Ferrer and Wendy Polit successfully beat back a $32 million fraud
claim, proving their client, Lennar
Homes, did not fraudulently misrepresent the state of the entitlements on a 220-acre property in
Lee County.
Lennar did tell the buyer, Olivia’s
Savannah LLC, that the property
had a master concept plan in place,
something Lee County requires for
development. That wasn’t true. The
plan expired three months before
the 2005 sale.
“We told them they had a master concept plan,” Widom said. “We
were mistaken.”
Lennar countersued for the unpaid $14 million purchase price.
The case hinged on whether Olivia’s
Savannah was a sophisticated investor and thus responsible for its
own due diligence before closing.
“You rarely have a case where
this much money is at stake and
it goes to trial,” said Widom, the
firm’s litigation practice group
leader in Miami.
The case took seven years to get
to trial and involved experts ranging from a former colonel of the
U.S. Army Corps of Engineers to
archivists who researched settlements with Lee County going back
40 or 50 years, Widom said.
The case was complicated by a
related suit brought by a Lee County
investor who lent Olivia’s Savannah
$4 million. Partner Ferrer handled
the litigation in that case. Associate
Polit worked on the main suit.
Olivia’s Savannah has appealed
the judge’s ruling to the Second
District Court of Appeal.
Widom scored another win in
November 2012 with the resolution of the most important of 32
lawsuits holding up the sale and
renovation of the old Gansevoort
Hotel in South Beach. The Bilzin
Sumberg team was brought in by
a joint venture that wanted to buy
the property but first needed to
know if any of the suits would be
expensive. The most important suit
was brought by the Roney Palace
Condominium Association and had
been pending for five years. The
association had claims in excess of
$25 million.
“If that case was a real case, it
would have blown up the deal,”
Widom said.
His team did due diligence on
each of the suits and took over the
litigation when the joint venture
decided to go ahead and buy the
property.
“We had over a dozen mediation
sessions,” he said.
The 1 Hotel & Homes at 2399
Collins Avenue is set to open in early 2014 in place of the Gansevoort.
AA23
FinalisTs
Attorneys aggressively defend ‘against a taking’ of Hilton hotel
Mark Tobin
Akerman
Mark Emanuele
Lydecker Diaz
When Broward County
made an offer on the Hilton
Fort Lauderdale Airport, the
last property it needed to acquire to expand the airport,
the price was nearly $30
million less than the owner
wanted for the 388-room hotel.
The county raised the offer to $49.8 million, which
the owner, Blackstone Real
Estate Investors, also refused, before filing a lawsuit
try to get their project
done and get it done
on time.”
Tobin began gathering experts, including a former director
of the Federal Aviation
Administration.
He
also prepared a valuation of the property
Mark Emanuele
Mark Tobin
based on similar airto take the property under port hotels around the couneminent domain laws. The try so he could have that
ready, knowing the county
county was in a hurry.
“We realized that we were wanted to begin construction
not even going to sit down quickly.
“We were aggressively
and talk sensibly and early
with these people,” said Mark defending against a taking,”
Tobin, a partner at Akerman. Tobin said. “It was our posi“They had tunnel vision to tion that the county was seek-
ing to take more than they
needed to widen the airport.”
The real dispute was over
the value of the property.
“The most difficult aspect
of the case, I thought, was getting the county to realize they
had undervalued the property,” said Mark Emanuele, a
partner at Lydecker Diaz. “I
don’t think they had the most
current information.”
A mediation session lasted
15 hours, ending after 11
p.m. with an agreement for
the county to pay $62 million for the hotel and garage.
Finally, the county approved
the deal in June.
“We also secured the
right of the client to operate
through the peak season,”
Tobin said. “That’s millions
more in extra benefit.”
The county also agreed to
allow the hotel to use county
land for parking so the hotel
could operate even after the
county demolished the garage.
“We were protecting property rights, and the government was very arrogant
about it,” Tobin said.
Broward Circuit Judge
John Murphy entered a final
judgment Sept. 18.
FinalisT
Attorney defeats father-and-son tax cheats’ attempts to appeal to Supreme Court
Marcos D. Jimenez
McDermott Will & Emery
Even after father-and-son
developers Mauricio Cohen
Assor and Leon Cohen Levy
went to prison for tax fraud,
they kept fighting the civil
fraud case that started it all.
Marcos D. Jimenez, a
partner at McDermott Will
& Emery and a former U.S.
attorney in Miami, represented the French bank CDR
Creances, beating the Cohens’
attempts to take the case all
the
way
to the U.S.
Supreme
Court. The
Cohens
wanted
to use the
proceeds
from the
sale of a
Marcos Jimenez
group
of
properties they once owned
in Miami-Dade County to
cover the restitution they
were ordered to pay in their
federal criminal case.
The bank had sued for the
six properties back in 2008
to pay off the debt on a New
York hotel property Jimenez
said the Cohens improperly
sold.
“Those properties belonged to the bank because
they had been purchased
or maintained with the proceeds of the sale of the hotel,” Jimenez explained. “We
got the judgment before they
were found guilty. You can’t
take someone else’s property
to pay your debts.”
The Cohens were arrested
when they arrived in New
York in 2010 for depositions
in the bank’s case. They were
each sentenced to 10 years in
prison. Cohen Assor was ordered to pay $9.38 million in
restitution, and Cohen Levy
was ordered to pay $7.76
million. They wanted $7 million from the sale of a Miami
Beach property at Collins
Avenue and 14th Street to go
toward that restitution.
Miami-Dade Circuit Judge
Lisa Walsh ruled in August
that the Miami Beach property belongs to the bank. The
Third District Court of Appeal
upheld that ruling, and the
Florida Supreme Court and
the U.S. Supreme Court declined to take the case.
“They’re still coming in
objecting to stuff,” Jimenez
said of the Cohens. “At some
point early on in the process,
it became clear that these
guys really truly believed
they were above the law.
Some people act that way, but
they believed it.”
AA24

FINAlISt

Transcription

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