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David Jove Most Effective Lawyers 2012


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David Jove Most Effective Lawyers 2012

  1. 1. SPECIAL REPORT MONDAY, DECEMBER 10, 2012 Table of Contents Pro bono 2 4 Public interest Appellate 6 Arbitration 8 Bankruptcy 9 10 Business litigation Class action 12 Corporate securities Criminal justice Intellectual property 13 14 15 Personal injury Product liability Real estate 16 17 19
  2. 2. AA2 MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW NOTABLE ACHIEVEMENTS In many respects, the Year 2012 was a year of Recovery and Redemption. The Troubles, as some legal market observers have called it, eased a bit as law firms recalibrated business plans, signed up laterals with strong books of business and in some cases, took the merger route and got married. Some veteran lawyers, meanwhile, abandoned the perceived security of Big Law and started their own new firms from scratch. Despite all of the changes — there has been one constant with the South Florida bar. A vast majority of our legal community did what they were hired to do: In both the private and public sectors, they served their clients well. To prove it, 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 through its eighth Most Effective Lawyers in South Florida. This year, in its eighth annual special report, the Review is recognizing more than 70 attorneys in 13 categories. They include: Appellate, Arbitration, Bankruptcy, Business Litigation, Class Action, Corporate Securities, Criminal Justice, Intellectual Property, 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. Among them: • For the long-suffering investors who were pushed off their own fiscal cliff by the Ponzi schemer Scott Rothstein, litigators obtained stunning verdicts and settlements to place clients on the road to more than just a modest recovery. • For a woman who ended up with deformed hands as a result of mistreatment by a doctor, one litigator turned to arbitration – at her client’s insistence – to win a multimillion dollar award. • For a foreign insurance company that needed appellate help to beat back a multimillion dollar federal court verdict, a former Supreme Court justice teamed with two law firm colleagues to get the result overturned. • For homeowners who saw a mortgage origination fraud lead to one of the biggest bank failures in U.S. history, an area lawyer and his team helped creditors recover millions lost through fraudulent or preference conveyances. • For other homeowners whose houses were fouled by toxic Chinese drywall, class action lawyers reached an agreement for a payout of between $600 million and $1 billion. Throughout the pages of today’s special pullout section, readers will learn the details about these and other cases that impacted both the public and private sectors. Holding to custom, the Review’s selections began with the assistance of bar members, their non-lawyer colleagues and the clients who believed their lawyers deserved recognition for what was achieved. The nominees’ work was evaluated by the Review editorial staff and based on both tangible results and an outcome’s impact on public policy and/or business interests. Review editors conducted a threemonth selection process that focused on not only the outcomes but the complexity of cases. Only South Florida-based lawyers qualified for the program. The results had to be achieved between Oct. 1, 2011 and Sept. 30, 2012. 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. Some of the categories that proved to be the most competitive were appellate, business litigation, criminal justice, real estate and public interest. The DBR’s staff reporters and several outside contributors researched and further reported on the cases handled by the finalists. In some cases, they talked to the adversaries of those who were nominated. The editors reconvened in November to review the findings and research by the staff writers and contributors. Finally, in each category, the editors undertook the difficult task of selecting one case that featured attorneys who should be recognized as a Most Effective Lawyer. While today’s section identifies leaders in each category, the editors sought to be sensitive to the teamwork that went into each result. Thus, readers will see the names of many who were in the supporting cast. J. Albert Diaz Effie Silva challenged records release. SPECIAL REPORT Pro Bono Attorney fought for girl whose confidential juvenile record was sold online Effie D. Silva Baker McKenzie The alleged crime seems almost ludicrous — a 13-year-old girl arrested, fingerprinted and charged for stealing a can of Coke from a Miami Beach store. For the Florida Department of Law Enforcement to make money by allowing the girl’s juvenile record to be sold on the Internet, though, made it serious. “It’s frightening because of the explosion of data mining around the country, which has really capitalized on this kind of access to these kinds of records,” said Effie D. Silva, a complex commercial litigation and arbitration attorney with Baker and McKenzie who wound up handling the pro bono case on the girl’s behalf. “She at that time was a 13-yearold girl that had her future ahead of her. She hoped to get a job, financial aid, future employment, and this really caused a serious threat. “Everybody just assumes that juvenile records are confidential. There’s never this assumption that they’re not.” Originally, Miami-Dade Public Defender Carlos Martinez seized upon the case of the girl, known only as “G.G.” to shield her identity, as the perfect case for challenging FDLE’s practice of releasing juvenile records for profit. But because one public agency can’t sue another in Florida, Martinez sought help from Baker and McKenzie. Enter Silva. “The G.G. case was exactly in the parameters of the confidentiality rules,” she said. Nonetheless, she added, “I went online and I actually purchased her arrest record for $23.” The release of G.G.’s arrest information came about because FDLE interpreted state law as requiring their release. Silva immediately recognized the sweeping impact of FDLE’s practice. “It’s not just her,” she said. “There were tons of kids and still are tons of kids trapped in this same scenario. Once we filed the lawsuit I received calls from mothers and daughters throughout the state in similar situations.” Last month, the First District Court of Appeal issued its opinion. It found that G.G. “was entitled to confidential treatment of her juvenile record.” “When I got the opinion,” Silva said, “there was a deep feeling in me that this was something good.” And, as a result of the opinion, FDLE has already begun withholding juvenile records in similar cases. “After the First District Court’s ruling, the FDLE has certainly received a message from the court, and I think that it’s clear that the FDLE is going to change their policy with respect to keeping these confidential records really confidential,” Silva said.
  3. 3. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012 FINALIST Attorney, firm work together to offer legal aid to parents in need Michelle Tanzer Holland & Knight Michelle Tanzer knew what the parents faced. She had been through it herself, with her own son. Alex was diagnosed as being severely autistic 15 years ago. “It was suggested that Alex be institutionalized, really,” she said. “That he did not have the brain work to communicate, let alone succeed in a mainstream environment. So his prognosis was very bleak, very bleak.” But she fought. She used her experience as an attorney to learn the workings of the state education system and the individual education plans (IEPs) for students with disabilities to get Alex additional attention at school. Today, Alex has a 4.2 GPA in a mainstream high school. “It’s a miracle, really,” she said. “Navigating the maze through the educational system and the IEPs was very difficult.” Her experience, and her success, led to a realization — and a promise. “Having a student or child with a disability is overwhelming generally to the family. They don’t know where to turn or how to get the support that they need,” she said. “While I was going through the process I realized that what I learned would be of benefit to so many other, thousands of other families ... I promised myself going forward that I would do whatever I could to help anyone facing a similar situation.” First she shared her experience as a parent, connecting with others facing the same challenges — not just for those with autistic chilMichelle Tanzer dren, but anyone with a child with a disability. She didn’t give legal advice, but she offered support and anecdotal, parent to parent insights. Then, in 2010, she got a call asking if she would take on some cases. It was a total departure for Tanzer, a real estate attorney specializing in the hospitality sector. She had no experience in disability rights, but she took them, pro bono. With the support of the firm she works for, Holland & Knight, that initial foray grew into Assisting Students with Disabilities, which she created with Disability Rights Florida, offering free legal aid to parents in need. Two years into the project, it now involves more than 30 attorneys throughout the state. They’ve successfully tackled a couple of dozen cases so far and won a positive result every time. Now Tanzer hopes to spread the word so that more parents become aware of ASD, and expand the reach of the project. “I’m committed to helping any student in the state of Florida that needs our help.” FINALIST Attorneys help defend ex-official who was forced to flee the Bahamas Monica Vila and Eleni Kastranakes, Holland & Knight For Monica Vila and Eleni Kastranakes, the case of a former Bahamian official who served as an informant for the U.S. Drug Enforcement Administration was “haunting.” Death threats forced him to flee with his family to the United States, but he exhausted his appeals over a twelve-year battle for asylum and faced deportation back to the islands. That’s when the Holland & Knight associates stepped in with a team of pro bono attorneys and pursued a precedent-setting line of defense that could have a far-reaching impact on future cases involving those who speak out against political corruption. “It opened up one more avenue under the political opinion umbrella that didn’t exist before,” Vila said. The case of “Mr. Smith” (as the attorneys have asked that he be identified to protect him) began when he witnessed government corruption that included drug smuggling by members of the Royal Bahamas Defense Force. He felt duty-bound to do something about it. He went to the DEA and became a confidential informant. When he was discovered, he started receiving death threats against him and Monica Vila Eleni Kastranakes his family. Fearing for their lives, he took his wife and three children to the United States. His attorneys says he went to the DEA, but soon realized the agency had no intention of keeping a promise to protect him. So he sought asylum, and wound up in front of an immigration judge who repeatedly interrupted him during his testimony, asking more than 200 “rapid-fire” questions and making “sarcastic and insulting comments,” Vila said. The complaint the team of attorneys filed in the case noted that when the presentation of evidence ended, the judge said: “This is so vague and general you could vomit and I could vomit because I can’t. He wants me to become a magician here and grant it merely based on this kind of testimony. ... I think this case quite frankly — I hate to use the word — but I think it stinks. It smells bad because there’s no way. This is pie in the sky.” see page AA5 AA3
  4. 4. AA4 MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW Public Interest Legal, lobbying efforts helped produce deferred deportation policy Cheryl Little Americans for Immigrant Justice Manny Diaz Lydecker Diaz Nera Shefer Grisales-Racini, Shefer, Hershey, Gonzalez-Rabagh, Miculitzki J. Albert Diaz J. Albert Diaz J. Albert Diaz Cheryl Little with Florida Immigrant Advocacy Center. Manny Diaz of Lydecker Diaz. Nera Shefer of Grisales, Racini, Shefer, Hershey, Gonzalez-Rabagh, Miculitzki. Since 1985, immigration attorney Cheryl Little has worked tirelessly on behalf of Haitians, Cubans and other immigrants at various nonprofit organizations. In recent years, she has been focused on getting the DREAM Act passed to award asylum to youths brought to the United States by their immigrant parents. In 2007, clients Alex and Juan Gomez, twin brothers from Colombia who face deportation, became the face of the so-called DREAMers after storming Washington in a major lobbying effort. But the DREAM Act never made it out of congressional committees. Still, Little achieved scores of deferred actions on behalf of her young clients over the years, giving them the ability to obtain work permits and driver licenses. Last April, Little made the case that temporary relief for DREAMers would best be done administratively, not legislatively. That day, she was flooded with calls — one of them from former Miami Mayor Manny Diaz. Coincidentally, Diaz, who serves on the board of the Homeland Security Council, was going to see Homeland Security Secretary Janet Napolitano in a few days. An immigrant himself, he jumped on Little’s cause and started sifting through his hefty contact list to lobby for Deferred Action for Childhood Arrivals, starting with a call to Vice President Joe Biden. Finalist Attorney helped defeat law stopping doctors from asking patients if they have guns at homes Ed Mullins Astigarraga Davis Ed Mullins has been an advocate for First Amendment issues his entire career, representing Telemundo, ABC, Fox News, Newhouse Publications, the Palm Beach Post and others. So when lawyers at the firm Ropes & Gray asked him in May to help challenge a bill signed by Governor Rick Scott barring physicians from asking their patients if they owned guns, he agreed without hesitation. Physicians, particularly pediatricians, sometimes ask patients about gun ownership during physicals as a preventative medicine measure. The new physician gag law, heavily backed by the National Rifle Association, would block doctors from discussing the issue with patients. Scott signed this first-inthe-nation law in June 2011. Mullins, a Republican, said, “The statute made no sense.” “What always floored me is there has never been justification for this,” he said. “Everyone agrees that people need to know about gun safety, even the NRA. Yet despite all this they lobbied for passing this statute. It’s an indefensible statute in my mind.” Mullins viewed the law as a slippery slope. What if a food company like McDonald’s Ed Mullins lobbied Scott and the Legislature for a law barring doctors from asking patients about their diets, he wondered. Dr. Stuart Himmelstein, governor of the Florida chapter of the American College of Physicians, said, “Reversing this law is essential in order to preserve the sanctity of the doctor-patient relationship by keeping the government out of the exam room.” In June 2011, a group of physicians in conjunction with the Brady Center to Prevent Gun Violence sued the state in Miami federal court, claiming the law Diaz also helped draft a resolution passed by the U.S. Conference of Mayors, which he had served as president, asking the administration to move forward with DACA. Little crafted a legal memo laying out the basis for DACA and got the memo in the hands of White House aides. On May 29, she flew to Washington to meet with Obama policy advisers at the White House, walking them through the strategy. At the same time, Miami immigration attorney Nera Shefer was looking for a test case to challenge the removal policy on childhood arrivals. She believed she found it in Daniela Pelaez, the valedictorian of North Miami Senior High School and the top-ranked student in her class of 700. A Miami immigration judge ordered Pelaez last February to be deported to her native Colombia and gave her 30 days to leave. She called Shefer, who agreed to take the case pro bono. Shefer immediately petitioned the Department of Homeland Security for a two-year deferred action so Pelaez could deliver her commencement speech. She then jumped from lawyering to lobbying and public relations, helping organize a protest. More than 2,500 students, teachers and school board members marched in front of the school, attracting national attention. Shefer then took Pelaez to Washington to meet with members of Congress as well as President Obama’s chief immigration policy adviser. Marco Rubio, David Rivera, Ileana Ros-Lehtinen, Frederica Wilson and Bill Nelson all wrote letters in support of Pelaez to Napolitano. Shefer blitzed the airwaves with Pelaez, making the articulate young woman the new face of DREAMers. Napolitano granted both Daniela and her sister, Dayana, deferred action, putting off deportation for two years. They also received permission to work and to obtain driver licenses and Social Security numbers. On June 15, Obama announced the new DACA policy — up to 1 million people under age 31 who arrived in the United States before age 16 are eligible for two-year deportation deferrals. was unconstitutional and a violation of their First Amendment rights. The state fought vigorously, and the case was heavily briefed on both sides. The NRA filed a motion to intervene, and the American Civil Liberties Union filed an amicus brief on the doctors’ side. Meanwhile, other states kept a close eye on the Florida case. Working with lawyers at Ropes & Gray, Mullins worked on strategy, all key motions and briefings. In July, U.S. District Judge Marcia Cooke tossed the law, deeming it unconstitutional and a violation of the doctors’ right to free speech. The state has appealed to the U.S. Court of Appeals for the Eleventh Circuit, which has not scheduled oral arguments. Mullins donated his time to the cause on a pro bono basis but has now submitted a fee request to the state.
  5. 5. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012 Finalist Law groups fought drug test mandate for welfare recipients Maria Kayanan, Randall Marshall and Shalini Goel Agarwal American Civil Liberties Union Randall C. Berg Jr. and Shawn Heller Florida Justice Institute Shalini Goel Agarwal Randall C. Berg Jr. Maria Kayanan Randall C. Marshall Shawn Heller The American Civil Liberties Union of Florida and the Florida Justice Institute began their battle against a law mandating drug testing for all welfare recipients the day it was signed. The law signed by Governor Rick Scott on May 5, 2011 made Florida the first state in the nation to require people receiving welfare to pass a drug test since a Michigan federal court struck down a similar law in 2000. The two public interest law groups immediately joined forces to draft pleadings, conduct research and, most importantly, search for a test case. They found that case when Luis Lebron called the ACLU after reading an article about the new law in a newspaper. The 35-year-old Orlando resident was a Navy veteran, a single father and a student at the University of Central Florida. He applied for assistance under the state’s Temporary Assistance for Needy Families program but refused to submit to a drug test, declining to waive his Fourth Amendment rights against unreasonable search and seizure. The law requires admittedly impoverished applicants to pay for the test first and seek reimbursement from the state if they pass. Those failing the test would lose assistance for one year. The team knew the stakes were high with other states such as Georgia looking to follow Florida’s example. In every aspect, the five lawyers operated as a team. Every filing was done by committee. “This was a true team effort,” said Maria Kayanan of the ACLU. “I don’t think there was any way to divide it up. There were more drafts of things written than there are stars in the sky. It was a true collaborative effort.” The lawsuit against the state, with Lebron as the class representative, was filed on Sept. 6, 2011, in the Orlando federal court. On Oct. 24, 2011, after a contested evidentiary hearing, U.S. District Judge Mary Scriven preliminarily enjoined the state Department of Children and Families from testing welfare recipients. Six weeks later, the court certified the matter as a class action. In her 37page ruling, Scriven said the collection of urine “entails intrusion into a highly personal and private bodily function” and noted there is a “substantial likelihood” the law will be thrown out on constitutional grounds. “We were ecstatic at the ruling,” Berg said. “When we left the 3½-hour hearing, we felt good, but you can’t be sure after a court hearing how a judge will rule. We’re particularly proud of the court in standing up for the Constitution and protecting the rights of poor people not to be trampled on by the state of Florida. It’s kind of a rarity these days that this happens.” Kayanan, who has been a lawyer since 1980, calls the case “the most important of my legal career.” Lebron is no longer on assistance and works as an associate accountant at Walt Disney World. Georgia, meanwhile, has dropped plans to implement a similar law. Florida has appealed to the U.S. Court of Appeals for the Eleventh Circuit. FROM PAGE AA3 Pro Bono: Judicial misconduct on partiality A review by the Justice Department’s Office of Professional Responsibility found that the judge “engaged in professional misconduct when he acted in reckless disregard of his obligation to be fair and impartial.” As a result of the OPR finding, the case was reopened. Now, said Kastranakes, “We’re hopeful that this decision in this case will be helpful to other people trying to get asylum here for fighting corruption.” AA5
  6. 6. AA6 MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW APPELLATE Ex-justice handled extra pressure in win for Australian insurer Raoul Cantero III White & Case Rodolfo Sorondo Jr. and Monica Vila Holland & Knight You might assume it’s easier to argue before the Florida Supreme Court after serving as a justice, but according to Raoul Cantero, you’d be wrong. “There’s extra pressure,” said Cantero, a member of the court from 2002 to 2008 who leads White & Case’s Miami appellate practice. “You want to make the best presentation possible whether they rule in your favor or not. “You want them to think you are an excellent advocate, and you are not relying on the fact that you are a former judge but on your own skills and preparation.” On May 31, Cantero’s insider knowledge and experience as an appellate lawyer were rewarded when the court ruled unanimously for his client, QBE Insurance Corp., in an important case stemming from Hurricane Wilma. Teamwork also helped. His co-counsel were two Holland & Knight lawyers: his friend Rodolfo Sorondo Jr., formerly a judge on the Third District Court of Appeal, and associate Monica Vila. Chalfonte, a condo rental property in Boca Raton, was damaged in the 2005 hurricane. Unhappy with QBE’s treatment of its claim, the condo association sued for breach of contract, breach of the implied warranty of good faith and fair dealing, and violation of the state law on hurricane deductibles. QBE is based in Australia, so the lawsuit proceeded in federal court, where a jury awarded Chalfonte $7.2 million. QBE appealed to the U.S. Court of Appeals for the Eleventh Circuit, which certified five questions of state law to the Florida Supreme Court. Cantero joined forces with Sorondo and Vila, who handled the case in the Eleventh Circuit, to persuade the high court to answer the questions favorably to QBE. Creating a challenge for the QBE lawyers, there was no controlling precedent in Florida. “The conclusion we proposed followed logically from the conclusions that it had reached previously,” Cantero said. The most important result was the court’s ruling that when an issue is contractual, insured parties like Chalfonte cannot use the implied warranty of good faith as a cover to present prejudicial evidence of bad faith to a jury. Questions answered, the case returned to the Eleventh Circuit. On Sept. 20, the court reversed the $7.2 million judgment and ordered a new trial. J. Albert Diaz Rodolfo Sorondo Jr. and Monica Vila with Holland & Knight and Raoul G. Cantero with White & Case landed a win for insurance company. Finalist Commercial litigator gets favorable ruling on discovery in international arbitration Ed Mullins Astigarraga Davis At the start of the May 24 oral argument before three appellate court judges, Edward Mullins must have felt like Dwyane Wade at the free-throw line. His partner Jose Astigarraga had won in the Miami trial court. As long as the panel stuck to the issue U.S. District Judge Donald Graham in Miami decided in their client’s favor, the repartee would flow easily, and he’d be home free. But the judges wanted to discuss a more significant matter: the definition of tribunal when seeking discovery under 28 U.S. Code Section 1782. Mullins was ready for that lob, too. “The lesson was being prepared for anything you need to do,” he said. The June 25 holding that a private arbitration proceeding in Ecuador qualifies as a tribunal entitled to U.S. courts’ help with discovery, made law in the U.S. Court of Appeals for the Eleventh Circuit. M u l l i n s , a founding shareholder of Astigarraga Davis in Miami, has worked on about Ed Mullins 100 appeals during his career as a commercial litigator. He said the application of Consorcio Ecuatoriano de Telecomunicaciones v. JAS Forwarding was unusually enjoyable. “In a few appeals like this one, you really get a chance to make an academic argument on the law,” Mullins said. “Because the court was interested in the arbitration issue, we were able to engage in a discourse about what the law was and should be.” Conocel and Jet Air Service Ecuador S.A. disputed the billing of a shipping contract. JASE started arbitration against Conocel, the Ecuadorean telecom company, for alleged nonpayment. For its part, Conocel said it intended to take action in Ecuador against two exemployees accused of overbilling. The company needed records from JASE’s U.S. counterpart, JAS Forwarding. Because the Astigarraga Davis firm is recognized for its international arbitration work, Conocel went there for help with obtaining the evidence. Persuaded by Astigarraga, Graham granted the application. He did not reach the issue of whether the directorategeneral for competition of the European Commission, where the arbitration was conducted, is a “foreign or international tribunal.” The judge relied on a 2004 U.S. Supreme Court decision, Intel Corp. v. Advanced Micro Devices. The Eleventh Circuit had not ruled on the tribunal issue, but before Intel, the Second and Fifth circuits had closed the doors of U.S. courts to discovery requests from foreign arbitral bodies. They did not interpret Intel to require revisiting those rulings. “The Eleventh wasn’t constrained by a prior precedent and so looked at this fresh,” Mullins said. The court was free to consider the growing importance of arbitration around the world. “International arbitration is by far the most popular and common method of dispute resolution in foreign countries when dealing with sophisticated litigation,” he said. A motion for rehearing en banc is pending. In the meantime, the case is cited across the country to support broad discovery requests, Mullins said. “It shows a progressive, pro-arbitration stance for Miami and all the cities in the Eleventh Circuit.”
  7. 7. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012 Finalist Economic-costs analysis keys developer’s win over stork, snake Douglas Halsey White & Case Timing is crucial in the shopping mall development business, and an extra $1 million is a lot of money. If the Sierra Club had its way, developers of a massive town center project would have had to spend that much and postpone building a year or two for an elaborate environmental review. So when the Sierra Club filed suit in 2007 to stop construction of the Cypress Creek Town Center near Tampa, the developers turned to a White & Case partner with environmental litigation experience to help them out. On Nov. 29, 2011, the U.S. Court of Appeals for the D.C. Circuit handed Douglas Halsey and his Miami legal team a victory. They had to overcome a federal district judge’s ruling that could have set an economically disastrous precedent for their clients, R.E. Jacobs Group LCC and Sierra Properties I LLC, and for other developers. Instead, Halsey emerged with a decision that clarifies guidelines for cost considerations under the Clean Water Act, the federal law that governs every wetlands project. “The important thing is it gave the appropriate level of discretion to the [U.S. Army] Corps of Engineers,” which issued permits for the 1.5 million-square-foot development in Wesley Chapel, Halsey said. The mall, restaurants, residences and movie theaters are expected to be completed in spring 2014. “Courts are not supposed to secondguess the decisions of agencies in their areas of expertise,” Halsey said, and the appellate court agreed. “It’s a welcome reaffirmation of that because there are times when district court judges act like a superagency and think it’s their job to reweigh all the evidence.” The Sierra Club’s “clients” were the indigenous wood stork and the Eastern indigo snake, and the group argued the project’s impact on their habitat had not been fully explored beDouglas Halsey fore the Corps issued the permits. Under the Clean Water Act, the Corps must consider whether “practicable alternatives” with “less adverse effect” exist for every wetlands project, taking into consideration logistics, technology and costs. Determining the economic costs is the crux of the analysis before the court. The historical cost of the land purchase many years ago was low. But the opportunity cost of changing the project by moving it or offering less parking at the present site was high. The Sierra Club, focusing on the historical cost, said it would be practicable to build elsewhere or shrink the parking. Halsey argued the Corps was right to consider the property’s fair market value and an 8 percent rate of return. Otherwise, “the net return would be so low we couldn’t attract financing,” Halsey explained. The circuit court sent one issue back to the district court: The Corps failed to address an expert’s comment that the project could result in habitat fragmentation for the protected snake. Alabama believes its Eastern indigo population has been wiped out. Halsey said he expects the Corps to issue a revised environment assessment concluding the snake’s habitat is safe “but providing a more detailed, thoughtful explanation.” FROM PAGE AA5 Appellate: Cantero won case for Hialeah slot machines In the past year, Cantero also left his mark for client South Florida Racing Association, owner of Hialeah Park. The owner wanted to operate slot machines at the racetrack, but it did not qualify under a 2004 constitutional amendment. The Legislature tried to fix that in 2009, but Hialeah’s competitors sued. They lost in the trial court and, thanks to Cantero, in the First District Court of Appeal in October 2011. “Now it’s opened up this public debate about casinos,” he said. “If it had gone the other way — a ruling that the constitutional amendment foreclosed the Legislature from legalizing slots anywhere in Florida — it was going to have a huge impact on the casino and gambling debate within the state.” AA7
  8. 8. AA8 MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW Arbitration Boca Raton Regional Hospital won against drug giant AstraZeneca Alan Lash, Martin Goldberg, Justin Fineberg Lash & Goldberg A trio of litigators from a Miami boutique took on two powerhouse law firms and won for their client, a community hospital that faced off against a multibillion-dollar pharmaceutical conglomerate. After arbitration, Lash & Goldberg landed a $7 million judgment for the defense April 11. Sidley & Austin of Los Angeles and Fowler White Boggs of Tampa represented drug giant AstraZeneca, owner of Comprehensive Cancer Centers through its Aptium Oncology subsidiary. Though the cancer center lawyers kicked off the litigation with a $43 million damage claim, they finished with nothing but an IOU for attorney fees. Lash got the job when he was contacted by the then-general counsel for the defendant, Boca Raton Community Hospital, now called Boca Raton Regional Hospital. Lash & Goldberg has a concentration in complex commercial health care disputes. The case, which went to arbitration before former Third District Court of Appeal Judge Melvia Green, was certainly complex. J. Albert Diaz Justin Fineberg, Martin Goldberg and Alan Lash took on two powerhouse law firms and won for their client, a community hospital that faced off against a multibillion-dollar pharmaceutical conglomerate. Aptium terminated its contract to run the hospital’s cancer center in July 2009. Five months later it filed a federal lawsuit claiming the hospital had violated the contract in several ways. It also accused the hospital of interfering with a prospective business relationship by contacting the University of Miami and threatening litigation hours before Aptium and UM were to sign an agreement to open a cancer center in Broward County. The hospital countered with a wrongful termination demand. The defense alleged the termination was a pretext for getting out of a deal that had unraveled because of Aptium’s mismanagement: Aptium lost more than $20 million on the Lynn Regional Cancer Institute-West, which it closed in 2010. “There were numerous depositions and thousands of documents exchanged,” Lash said. “It was a very large, complicated case because of the many different issues that had to be tried.” Multiple expert witnesses for each topic converged from across the country. The final hearing required two weeks in June 2011 and a third week in October 2011. Lash, Goldberg and Fineberg worked the case as a team. At the final hearing, especially on cross-examination, their individual strengths shone, according to Lash. Goldberg, a former federal prosecutor, would not let an Aptium expert establish that the market reimbursement rate for cancer drugs was higher than Goldberg knew it to be. “He completely refuted the theory that the expert was trying to advance,” Lash said. Fineberg, who steeped himself in the details of a number of depositions, brought Aptium’s employees to heel, one in particular. The employee was testifying about a document that revealed Aptium was trying to find a way out of the hospital contract because of its cancer center losses. “That document was prepared by [the employee] who Justin crossed in the final hearing, and he just did a masterful job,” Lash recalled. When Green issued her 61-page decision, the hospital got $4.5 million for Aptium’s breach of contract and $2.5 million that Aptium had collected from third parties. Finalist Nearly $10 million settlement helped ease insurance losses Richard Lydecker Lydecker Diaz The largest insurance liquidation in Florida history, a year after Hurricanes Katrina and Wilma hit the state, left behind an enormous number of financial casualties. But when a reinsurance company claimed it had been the victim of a related fraud, Richard Lydecker and two lawyers from his firm moved aggressively to prove otherwise. Their success was demonstrated by a $9.7 million settlement wrested from Everest Reinsurance Co. before the case went to an arbitration hearing, saving attorney fees that could easily have topped $1 million. In 2006, regulators sued nine companies comprising the Poe Financial Group led by former Tampa mayor Bill Poe Sr., alleging the officers and directors schemed to divert $144 million to themselves from storm claims while the companies headed toward bankruptcy. Unpaid claims totaled $1.1 bilRichard Lydecker lion. The Florida Insurance Guaranty Association imposed a surcharge that still shows up on every Florida homeowner’s insurance bill: $20 for every $1,000 in premiums. “It’s really unfair to the people of the state of Florida that they get stuck holding the bag,” Lydecker said. The Florida Department of Financial Services hired Lydecker, a former prosecutor, and his Miami firm, which does a lot of white-collar criminal and civil work, to review the losses and retrieve as much as possible. In addition to the $9.7 million from Everest, they have recovered about $10 million from a settlement in the bankruptcy of a Poe subsidiary. Far bigger bucks remain out there. A suit against Deloitte, the Poe companies’ accounting firm, seeking $500 million to $1 billion, is still in discovery. The 2006 case against the officers and directors seeking damages of $600 million to $1 billion also is pending. In July 2011, the state filed a claim against New Jersey-based Everest attempting to recover almost $13 million. Everest’s response was a counterclaim asserting it was a victim of the Poe companies’ fraud and seeking $90 million in damages. Working with Lydecker, the lead atsee page AA11
  9. 9. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012 AA9 Finalist Litigator helped woman win medical malpractice arbitration Nancy La Vista Clark Fountain La Vista Prather Keen & Littky-Rubin Nancy La Vista, a West Palm Beach litigator who specializes in medical malpractice, has always preferred to take her case to a jury. She’s had a lot of positive reinforcement. In 2008, she won a $35 million verdict for a brain-damaged child. It was the largest med mal verdict in Broward County and a top-100 verdict in the nation that year. “I really believe in trial by jury,” said La Vista, a former critical-care nurse. “I believe it’s the best system we have if everybody honors it honestly.” Nevertheless, the client is the boss, and last year she listened to hers — a woman pushing 60 with useless, deformed hands that may eventually have to be amputated. The client wanted arbitration. She had been treated in 2006 and, five years later, faced more continuances that stalled her turn in court. La Vista turned to arbitration and brought in associ- ate Tim Murphy to assist. On Nov. 3, 2011, retired Broward Circuit Judge Leonard Fleet ordered a $6.32 million award for their clients Belinda and Scott Burns of Fort Pierce. Belinda Burns, who was a county maintenance worker, is to get $500,000 for lost earnings, $4.32 million for medical expenses and $1 million for pain and suffering. Her husNancy La Vista band, Scott Burns, is to receive $500,000 for loss of consortium. “They were pleased with the award,” La Vista said. “Mrs. Burns’ biggest goal was to hold the doctor accountable, and that part she got. She’s able to tell the world, ‘Look what he did to me.’ ” Belinda Burns went to the Mid-Florida Radiation Oncology Inc. clinic in Vero Beach to be treated for squamous cell skin cancer growths on her hands. Dr. Ronald H. Woody III administered radiation in a dosage that was 50 percent above normal, a plaintiffs expert testified at the arbitration hearing. As a result, “Burns’ hands are like rocks,” dermatologist Darrell Rigel said. La Vista said her client needs assistance with all activities of daily life. “She can’t clean her own house. Her husband does all that. It’s truly tragic.” Woody argued a dermatologist made all the decisions, he was just a technician, Burns agreed she wouldn’t sue in exchange for the clinic waiving her medical bill, and his treatment met the required standard of care, La Vista said. “The arbitrator found that his testimony about it being acceptable care was not believable,” she said. After the ruling, Woody claimed he never agreed to binding arbitration and filed an appeal in circuit court. On Aug. 2, he sought Chapter 11 bankruptcy protection. Records show his Port St. Lucie Ventures Inc. is doing business as Port St. Lucie Cancer Center. Woody’s medical license is clear and active with no recorded disciplinary action. La Vista referred the matter to a bankruptcy lawyer. Unless a judge decides the Burnses’ claim cannot be discharged, they will be treated as creditors. Bankruptcy Berger Singerman team tackles recovery effort in mortgage scam Paul Singerman, Howard Berlin, Kris Aungst and Jesse Cloyd Berger Singerman Federal agents executed search warrants on Ocalabased Taylor, Bean & Whitaker Mortgage Corp., the largest independent mortgage originator in the United States, on Aug. 3, 2009. In the month of its demise, operations froze on servicing 512,000 loans with an unpaid principal balance exceeding $80 billion. At the time, TBW was in the process of obtaining Troubled Asset Relief Program bailout funds on its acquisition of a controlling stake in Colonial BancGroup of Montgomery, Alabama. The TARP application triggered an investigation. “A Colonial employee tipped off federal investigators to fraud going on between Colonial and TBW. TBW was one of Colonial’s biggest customers,” said Howard Berlin, a partner at Berger Singerman in Miami. Eleven days after the raid on TBW headquarters, the Federal Deposit Insurance Corp. seized Colonial Bank. It was the largest bank failure in 2009 and the sixthlargest bank failure in U.S. history. A seven-year scheme was uncovered in which TBW chairman Lee B. Farkas fraudulently hid cash shortfalls through a series of fund diversions and fake transactions. In Farkas’ criminal case, losses to creditors were set at $2.9 billion. He received a 30-year prison sentence last summer. U.S. Bankruptcy Judge Jerry Funk in Jacksonville made Neil Luria of Cleveland the plan trustee, and Luria retained Berger Singerman to oversee recovery efforts. Claims against TBW continued to mount and now stand at $10 billion. Berger Singerman was named counsel for the credi- J. Albert Diaz Kristopher E. Aungst, Howard J. Berlin, Paul S. Singerman and Jesse Cloyd of Berger Singerman represented Taylor Bean’s trustee. tors committee in 2009. Paul Singerman was lead attorney, and Howard Berlin, Kris Aungst and Jesse Cloyd assisted. Berlin said the heavy lifting came in 2011 when the avoidance actions got a full head of steam — 387 cases were filed to recover transfers of more than $280 mil- lion lost through preference or fraudulent conveyances. “Fraudulent conveyances were typically monies TBW spent paying for Farkas’ lifestyle — he acquired jets, yachts, homes — and he bought businesses such see page AA12
  10. 10. AA10 MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW Finalist Arnstein & Lehr attorneys worked bankruptcy case with $130 million at risk in Doral developement Phillip M. Hudson and Michael Denberg Arnstein & Lehr The attorneys represented BTI Partners in a bankruptcy case where the Hollywood-based land developer had a $130 million investment at risk. The real estate market crashed around the time the Town Center at Doral’s developer, Elie Berdugo, died. BTI asked Landmark at Doral Community Development District, the conduit for nearly $71 million in CDD bonds, to foreclose. Town Center stayed the foreclosure suit by filing a Chapter 11 petition in September 2011. A third party, Miami developer Pedro Martin’s Terra World Investments LLC, offered up to $20 million to fund a reorganization plan, Michael Denberg Phillip M. Hudson but BTI and the district opposed a plan because it required a substantial writedown of the bond debt. “We had to convince the bank this was not a valid bankruptcy,” said Hudson, who along with Betty Shumener, a partner at Shumener, Odson & Oh in Los Angeles, handled all litigation and the bankruptcy aspect for BTI Partners. The CDD had legal standing to sue on behalf of BTI, which held the bonds Berdugo obtained to pay for infrastructure. One problematic issue was that a bankruptcy judge in Tampa ruled in August 2011 that bondholders should not be considered creditors and therefore had no say in reorganization plans. Bond markets took notice, and there was fear this would have a chilling effect if the Tampa ruling spread to other courts. Denberg, a real estate attorney, handled all transactional aspects related to the real estate and bond documents and worked with the bankruptcy attorneys for more than a year. The legal team had to creatively make a compelling argument that would give bondholders standing as creditors. Hudson and Denberg concentrated on the constitutional issues and federal and state taxing powers to argue bankruptcy courts cannot usurp the authority of community development districts before U.S. Bankruptcy Judge Robert Mark in Miami. “We filed our own plan. We convinced the judge that the landowner’s plan wouldn’t work,” Hudson said. BTI submitted its own plan and on June 22 was allowed to take the property — almost 120 acres of land that will be split among two or three buyers expected to pay a combined $80 million to $100 million. Ultimately, the land will be used for single-family residential, multifamily housing and commercial purposes. “It’s possible the entire outstanding debt will not be repaid,” Hudson said. “However, BTI is in a better position than it would have been otherwise.” The decision means developers cannot come into bankruptcy court and get a discount at the expense of bondholders. The work of Hudson and Denberg is likely to have far-reaching consequences for other CDD bondholders, Hudson said. There are more than 600 CDDs in Florida, and about one-third of them are in default. Business Litigation Litigators reached $170M settlement for defrauded Rothstein investors in state court William Scherer Conrad & Scherer Harley Tropin Kozyak Tropin & Throckmorton It cost $50 million in legal fees to prepare a case on behalf of 55 Razorback investors defrauded in Scott Rothstein’s Ponzi scheme, but the effort paid off with a $170 million settlement — the largest in Broward Circuit Court history. After two years of preparation and on the eve of trial in February, litigators William Scherer and Harley Tropin reached the agreement to settle their suit against TD Bank for conspiring to aid and abet Rothstein’s $1.2 billion dollar fraud. The settlement amounted to more than 90 percent of the Razorback investor losses of $186 million, said Scherer, a partner at Conrad & Scherer in Fort Lauderdale. Within a week, the clients received their share — $120 million. Legal fees were $50 million. A few days later, the attorneys reached a $10 million cash settlement for their clients with a co-defendant, Gibraltar Private Bank & Trust of Coral Gables. The attorneys are still working to collect another $10 million from Gibraltar’s insurer. A third co-defendant, New York-based Platinum hedge fund, settled for an undisclosed amount. TD Bank and Gibraltar held accounts that were used to funnel investment funds to Rothstein. The bilked investors accused the banks of colluding with Rothstein. “We ran this case like a large business,” said Scherer. “We met every Friday for the two years that we litigated until the settlement, and we are still meeting. “We took over 100 depositions; the transcripts were hundreds of thousands of pages. Some of them went on for days.” Scherer said early on he knew the case was too big for his 27-lawyer firm, and he asked Tropin to come in as co-counsel. The two firms had 21 lawyers and about the same number of legal assistants working on the case. He said his firm had extensive experience with Ponzi scheme litigation. “Our job was to shape the case in a way we could bring it to trial quickly and with the legal theory that would streamline and unify the case.” He said ultimately they chose to go with a conspiracy-fraud strategy. Candace West J. Albert Diaz William Scherer, left, and Harley Tropin coordinated efforts for money-losing investors suing TD Bank. “They conspired together with Rothstein to aid and abet him in what he did.” The firms split the depositions. “That was one of the reasons we needed the additional troops,” Scherer said. They did a mock run of the trial nine times. Scherer coordinated 10 days of depositions of Scott Rothstein last December. He spent 2½ days taking Rothstein’s deposition himself. Settlement momentum picked up after TD Bank lost a $67 million verdict to the Coquina investor group in January in Miami federal court. Scherer said the trial acted as a dry run for Razorback. “Of course our case was the same. I think TD forced that case to go to trial because they wanted the experience for my case, which was a lot bigger.” Razorback investors also received $4.5 million in a settlement with Rothstein’s accounting firm, Berenfeld Spritzer Schecter & Sheer of Coral Gables. “We kept pressing and pressing, and we worked a lot of weekends, and we worked a lot of nights. We all felt this was going to be a milestone case for us,” Scherer said. “I kept telling my lawyers, ‘Cherish every moment of this. No matter how successful you are, these cases ” come around only once in a lifetime.’ 
  11. 11. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012 AA11 Finalist Finalist Case set high bar for sustained aiding and abetting fraud case Litigator helped Dollar Tree fight Winn-Dixie on lease terms David Mandel and Nina Mandel Mandel & Mandel A $67 million federal jury verdict in favor of a group of Texas investors revealed how TD Bank aided Fort Lauderdale attorney Scott Rothstein’s $1.2 billion Ponzi scheme and set in motion a string of settlements to follow. After 22 days of trial and only 4½ hours of deliberations, the jury awarded Coquina Investments $32 million in compensatory damages and $35 million in punitive damages Jan. 18. Since the Cherry Hill, New Jerseybased bank posted an appellate bond, the 15 Coquina investors cannot collect on the award with the case pending in the U.S. Court of Appeals for the Eleventh Circuit. Eventually, the Coquina investors’ share of the total award is expected to be $49 million plus interest and minus legal fees. The trustee in the Rothstein Rosenfeldt Adler bankruptcy case gets a portion of the award — $18 million — for the estate. When claims in bankruptcy against the estate are finally settled, Coquina will be eligible to get some of that back. After the trial ended, evidence trickled out showing the bank and its law firm at the time, Greenberg Traurig, failed to turn over damaging evidence during pretrial discovey. U.S. District Judge Marcia Cooke in Miami ordered sanctions against the bank and the lawyers. Plaintiffs attorney David Mandel, managing partner of the husband-andwife litigation firm Mandel & Mandel in Miami, said the case has broader implications because it’s the first time a major financial institution was held responsible for a Ponzi scheme conducted by a customer. “It established the high water mark for what is necessary in a sustained aiding and abetting fraud case,” he said. “The evidence in the case is unusual because there is tremendous evidence of insider conspirators at the bank.” The Mandels began work on the case in early 2010. In addition to the Mandels, the team Nina Mandel David Mandel included two associates and two paralegals. They hired an electronic discovery consultant to help sift through about 1.5 million documents. Nina Mandel handled most of the bank witnesses and took depositions of bank officials in New Jersey and New York. Nina Mandel said one of the first things they did was seek preservation of surveillance videos at the Weston branch, where Rothstein put on road shows to attract new money. “That was an unusual part of the fraud case — when we realized that Rothstein would go from his office on Las Olas [Boulevard] and drive across town to meet with investors at the branch in Weston,” she said. At trial, they played the videos showing fraudulent documents and, at various times, Rothstein, his uncle, a bank official and unwitting investors. The trial had its share of drama when the bank’s fired regional vice president, Frank Spinosa, repeatedly asserted his Fifth Amendment right to refuse to answer questions on the grounds that it might incriminate him. “He took the Fifth to every question we asked. You can imagine the impact on the jury. He had a criminal defense attorney,” said David Mandel. Since the verdict, cases brought by other investor groups against TD Bank and co-defendants have been settled for more than $200 million. Mandel opened his practice in 1997. He and Nina Mandel are former Miami federal prosecutors. “It was fun — we’ve been in practice for a while but we never tried a case [together] before,” David Mandel said. Mandel & Mandel is working on the appeal with the Washington office of Gibson Dunn & Crutcher. FROM PAGE AA8 Arbitration: ‘Hard-line approach’ torneys for the Everest litigation were partner Alan Feldman and Seth Coblentz, a senior associate. “We took a very hard-line approach in the settlement discussions and in the documents requested,” Feldman said. At the same time, Coblentz built a relationship with Everest’s in-house counsel. “We identified for them and their counsel Florida case law, when they were relying on New York case law,” he said. With talks stalling, the Lydecker lawyers filed for arbitration. The counterclaim died with the settlement. About 18,000 documents were produced in a related state court proceeding, and every one was analyzed before about 50 useful papers were identified. “You had to go through the haystack to get to the needles,” Lydecker said. One was a 2005 letter from an Everest official to a Poe executive stating audits had found an ongoing reserve inadequacy. Yet Everest renewed Poe’s reinsurance. “It’s a strong document to defeat their counterclaim and to bolster our position,” Feldman said. Steve Silverman Kluger, Kaplan, Silverman, Katzen & Levine Winn-Dixie’s effort to keep discount stores like Dollar Tree from competing by selling groceries in neighboring locations was cut short by a federal ruling based on a creative defense by Kluger Kaplan Silverman Katzen & Levine. “The economic impact is huge,” said Steve Silverman, the business litigation partner who led the trial team for Chesapeake, Virginia-based Dollar Tree. Silverman said the ruling struck down old definitions that Winn-Dixie has been using for “groceries” and “shelf space” and greatly expanded the ability of discount retailers like Dollar Tree to sell competing products. When he was tapped in June 2011 by the general counsel of Dollar Tree to handle the trial, Silverman said he found he was up against a wall of case law from different courts in several states that favored Jacksonville-based Winn-Dixie’s exclusivity rights in its leases. “Winn-Dixie had litigated [exclusivity rights] about seven times … and won all seven of those cases. They had amassed a body of law from appellate decisions that was incredibly favorable, and this is why this case was challenging and incredibly difficult to win,” he said. On Aug. 13, U.S. District Judge Donald Middlebrooks in West Palm Beach ruled only 10 of 136 claims by Winn-Dixie against discount retailers broke the exclusivity agreements. The case involved stores in five Southern states with the majority of locations in Florida. Silverman had to get the court to accept updated definitions of groceries and shelf space — the two heavily contested issues in the case. “The prior definitions were that groceries included almost everything sold in a supermarket from food to paper products to kitchen gadgets. We said, ‘Noooo, that’s not what it means. These leases were executed in the ’50s. We went through the historic definiSteven Silverman tion of what groceries are … and [the judge] agreed — groceries means food.” Next, discounters needed a ruling about the percentage of space their stores may devote to groceries. “Winn-Dixie said the shelf area includes half the aisle because that’s where people stand. Judge Middlebrooks said, ‘No, you don’t include the aisle space; ” you include the shelf space.’  Winn-Dixie has appealed to the U.S. Court of Appeals for the Eleventh Circuit. Silverman will represent Dollar Tree in the appeal. Winn-Dixie has been suing not only Dollar Tree, but other retailers like Big Lots and Dollar General over noncompete clauses in its leases. It was Silverman’s first assignment for Dollar Tree. Since the ruling, he has been litigating cases for them in other courts. Winn-Dixie sought $15 million in damages, but Silverman said the economic impact is much greater than that because Winn-Dixie wanted the discounters to stop selling groceries completely. “That could have shuttered some of these stores. When you think about the potential sales my client will be able to do in the future, it dwarfs the $15 million,” he said. Winn-Dixie did not respond to a request for comment by deadline.
  12. 12. AA12 MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW Class action Attorney helped make deal with Chinese drywall manufacturer Ervin A. Gonzalez Colson Hicks Eidson J Albert Diaz Ervin Gonzalez helped win a drywall verdict in a closely watched case. In the summer of 2009, thousands of defective Chinese-made drywall claims surfacing nationwide were consolidated in New Orleans federal court. A 15-member plaintiffs steering committee was formed, and U.S. District Judge Eldon E. Fallon put three South Florida attorneys on it — Robert Josefsberg of Podhurst Orseck; Victor Diaz Jr., now with VM Diaz & Partners; and Ervin A. Gonzalez, a partner at Colson Hicks Eidson in Coral Gables. “Ervin’s a constant source of energy. He’s like the Energizer Bunny,” Josefsberg said. “He’s working very hard at it. He’s even got a place to stay in New Orleans. Ervin doesn’t do anything halfway. He’s devoted himself to that case, and he’s also working the BP case. The fact is Ervin’s done so much more than others on the committee, including myself.” Since at least 2004, defective Chinese drywall was being used by the home-building industry to the det- riment of homeowners. Toxic fumes escaping from wallboard was suspected of producing noxious odors and corroding air conditioning units and other metal fixtures. The only solution was to remove the drywall, but most homeowners could not afford the cost. As a member of the PSC, Gonzalez was assigned a bellwether case, Armin and Lisa Seifart v. Banner Supply. “It was a consolidated proceeding between the federal court and MiamiDade Circuit Judge Joseph Farina,” Gonzalez recalled. “It was chosen because it was well-suited to determine the liability of a distributor of Chinese drywall. The Seifart home had all its drywall from the same manufacturer, the same distributor and it was reflective of damages in other homes.” The 2010 trial had to prove a direct link between damage and the drywall manufacturer. Gonzalez and partner Patrick Montoya showed a causal link and obtained a $2.5 million verdict. Liability was established, not just for the manufacturer but, under negligence and strict liability, for the distributors. Concurrent with this seminal case, Gonzalez was part of the steering committee’s strategy development and participated in settlement talks. Gonzalez traveled extensively for the global discovery process, conducting key depositions in China, Europe and the United States. He helped gather and analyze hundreds of documents and damage as- Finalist sessment evidence to establish causation, liability and total damages. The steering committee faced a multibillion dollar manufacturer, Knauf, with virtually unlimited resources. The scale of the litigation required enormous hours spent in discovery. And the major defendants were foreign, which meant corporate officers and executives had to be served under Hague Convention requirements. Gonzalez helped orchestrate a $55 million settlement with Banner Supply last year, and that appeared to be the turning point. “Knauf recognized that as manufacturer it had the most culpability and would be bearing the brunt,” Gonzalez said. Last December, the steering committee announced Knauf’s Chinese holding, Knauf Plasterboard Tianjin, reached an agreement that would pay out $600 million to $1 billion. “Ervin has been a zealous advocate for what each of us believe is in the best interest of the homeowners,” Diaz said. “At times, we have disagreed. More often than not, we have agreed. We have enormous respect for each other’s talent and courtroom skills.” Since the Knauf settlement, Gonzalez helped negotiate an $80 million settlement in June with insurance companies for many builders and installers. At this point, the job is considered half done. FROM PAGE AA9 Trio negotiated overdraft fee settlements with large banks Bankruptcy: Robert Gilbert Grossman Roth Aaron Podhurst Podhurst Orseck Bruce Rogow Bruce Rogow P.A. For more than three years, multidistrict litigation has been waged against many of the nation’s largest banks for their overdraft fee practices. Class action litigation by customers alleged the timing of transactions was manipulated to unjustly enrich the banks at the expense of account holders. More than 150 lawyers from two dozen law firms nationwide have been managed by the coordinating team of Robert Gilbert at Grossman Roth in Coral Gables, Aaron Podhurst at Podhurst Orseck in Miami and Nova Southeastern University law professor Bruce Rogow. From November 2011 to September 2012, the MDL coordinating counsel helped negotiate settlements to final or preliminary approval with 14 banks. These include settlements of $138 million with Citizens Financial Bank, $110 million with Chase Bank, $90 million with PNC Bank and $62 million with TD Bank. In all, $584 million in settlements were reached in the past year. This is in addition to a $410 million settlement reached the previous year with Bank of Robert Gilbert Aaron Podhurst America. In describing the monumental coordinating effort, Gilbert said he put in 18- to 20-hour days, six days a week. “This involved organizing and overseeing litigation teams, running day-today discovery and briefings against each of the individual banks, leading settlement discussions with banks in mediation or, if settled, post-mediation directly,” Gilbert said. Rogow joined Gilbert in 2009 as chief architect of the arguments presented to Senior U.S. District Judge James Lawrence King in Miami, both in written briefings and oral argument. Since 2011, Podhurst was by Gilbert’s side as co-counsel and was involved in nearly every settlement negotiation. “As a senior statesman in the bar, Aaron is someone who’s been through these battles before,” Gilbert said. “His contribution has been invaluable.” The overdraft fee litigation encountered two major legal challenges. First, every bank asserted as its primary defense a federal pre-emption under the National Bank Act, maintaining they could not be held liable for their practices under state common law. Wells Fargo, Bruce Rogow which did not settle, is appealing a $210 million judgment in a California case on the federal pre-emption issue. Argument has been heard, and a decision is pending in the U.S. Court of Appeals for the Ninth Circuit. However, King rejected the federal pre-emption argument at the motion for dismissal stage. The second issue involved compelling arbitration. The U.S. Supreme Court protected the enforceability of arbitration clauses in consumer contracts last year, but King ruled the banks weren’t protected. Even with the legal questions unresolved, many banks opted to settle in the interest of improving customer relations. 400 cases went to mediation as restaurants, nightclubs and gyms for himself, family and friends,” Berlin said. Through September, Berger Singerman has recovered $132 million. The law firm also is helping the trustee sell assets and preparing other lawsuits with a goal of recovering more than $1 billion. The case has involved formidable logistics. Each of the hundreds of cases had to be researched and analyzed before filing. About 400 mediations were scheduled and held in Orlando and Miami. Many of the defendants were businesses that sold goods to Farkas, only to realize later their goods were bought with stolen funds. This caused great frustration for the business owners as the fraud became apparent to them as well, Aungst said. Nearly all matters identified in formal mediations or informal settlement discussions were successfully resolved.
  13. 13. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012 AA13 Corporate Securities H&K trio successfully defended U.S.-listed Chinese companies Tracy Nichols, Louise McAlpin and Stephen Warren Holland & Knight A team of Holland & Knight attorneys successfully resolved two securities class actions and a derivative action involving U.S.-listed Chinese companies. One of the class actions and the derivative action targeted Elsa Sung, former chief financial officer of Jiangbo Pharmaceuticals Inc., who lived in Plantation. Jiangbo shareholders filed suit in July 2011 claiming the company overstated its cash balances, failed to disclose a related-party transaction and refused to cooperate in an internal investigation of accounting issues. The company’s China-based officials then failed to submit required filings to the Securities and Exchange Commission, causing Jiangbo to be delisted from Nasdaq and administratively dissolved as a Florida corporation. It also defaulted on the class action. “The Chinese officers and directors essentially abandoned the company,” said Louise McAlpin, who was on the team with litigation leader Tracy Nichols and fellow Holland & Knight partner Stephen Warren. The third case pitted angry shareholders against a U.S. company formed to acquire SearchMedia Holdings Ltd., one of China’s leading media companies. But after the acquisition, the new owners discovered that prior management inflated SearchMedia’s financial results. Shareholders said the American corporate officials made misrepresentations just like the Chinese. Nichols said her team argued the acquisition group also was duped. “We basically made the argument that why would a U.S. company overpay for a Chinese company that overstated its profits,” Nichols said. U.S. District Judge Kathleen Williams in Miami approved a partial settlement and granted partial final judgment and partial dismissal with prejudice April 24, allowing the new management to move beyond the prior management’s fraud. Importantly, SearchMedia’s directors and officers insurance fully covered the mediated settlement. The Holland & Knight trio had to educate themselves and U.S. judges on Chinese law and the many differences in Chinese and U.S. businesses. “Chinese law is an ever-moving target. It’s not hard and fast,” McAlpin said. Nichols said China lacks the strong protections that safeguard American investors. “They always keep two, maybe three sets of books,” she said. In the Jiangbo cases, U.S. District Judge Marcia Cooke in Miami found the company’s reported cash balances were misleading but agreed with Nichols’ team that the plaintiffs had not shown Sung acted with knowledge of wrongdoing by other corporate officials. The shareholders did not name Sung in an amended complaint. Although Cooke dismissed the derivative case against Sung on Sept. 4, she allowed the plaintiffs to amend their complaint to state a cognizable claim. “Now we’re on the second round of J. Albert Diaz Louise McAlpin, Tracy A. Nichols and Stephen P. Warren of Holland & Knight. motions and discovery,” McAlpin said. But the relatively speedy resolution of the first round of complaints means there is still D&O insurance money for Sung’s defense, the lawyers said. Nichols said she is perplexed by the actions of Chinese businessmen caught violating SEC rules. “They have no problem hiding in China. I think you also see the [U.S.] judges are getting frustrated,” she said. “The SEC has a difficult time, too, because they don’t have jurisdiction over there.” She said reverse mergers and special acquisitions were common vehicles to enter the Chinese market three or so years ago but now have become red flags. “I won’t be investing in Chinese companies, I can tell you that,” Nichols said. Featuring: tidbits from around the water cooler. Gossipy news from around town. Only on dailybusinessreviewcom
  14. 14. AA14 MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW Finalist Hunton team protected Bahamas investment fund with ties to Madoff Samuel Danon, Gustavo Membiela and Paulo Lima Hunton & Williams The 51 named plaintiffs were foreigners who invested in Optimal Strategic U.S. Equity Ltd., a Bahamas-based fund that invested most of its assets with con man Bernard Madoff. The $3.1 billion fund lost substantially all of its value as a result of Madoff’s Ponzi scheme. The plaintiffs asserted federal securities law and state common law claims against the fund’s Swiss investment manager, Optimal Investment Services, Madrid-based parent Banco Santander and an OIS employee. “Our engagement began that night, the day Madoff was arrested. I remember getting a call from the bank that night,” said Samuel Danon of Hunton & Williams, who with fellow partner Gustavo Membiela and associate Paulo Lima successfully won decisions dismissing 13 of 18 claims — and eventually dismissing the case on the basis of Samuel Danon Paulo Lima forum non conveniens. “Our position was since this was a Bahamian fund managed by a Swiss company and administered by an Irish firm, another country’s laws would apply,” Danon said. U.S. District Judge Shira Scheindlin in New York initially declined to dismiss the federal claims and rejected Optimal’s forum argument, saying U.S. courts had an interest in enforcing securities laws. Alan Ellman of Labaton Sucharow in New York led the plaintiffs attorneys, who included Jack Reise and Michael Greenwald of Robbins Geller Rudman & Dowd in Boca Raton. Danon’s team tailored its discovery toward showing all fund purchases were private transactions involving only foreign entities. On March 1, the U.S. Court of Appeals for the Second Circuit expounded on the Gustavo Membiela issue of extraterritoriality that undermined the Optimal plaintiffs’ argument that their purchases were subject to U.S. securities law. Danon succeeded in having five federal claims dismissed June 4. “I think finally getting the securities claims dismissed is something we had to be persistent on,” Danon said. Optimal renewed its motion to dismiss based on the forum issue. In a July 16 brief, Danon’s team noted since there was no longer a federal securities claim, there was no longer a U.S. interest in the litigation. Also, they said critical witnesses in Switzerland were not subject to compulsory process. “You had this intersection of European privacy laws combining with U.S. discovery rules,” Danon said. Getting documents transferred to the United States also was troublesome. “Because of the privilege requirement, they were E.U. documents that had to stay in the E.U.,” Danon said. On Aug. 10, Scheindlin agreed that Switzerland was the more convenient forum. “We were persistent and fought hard to get the result,” Danon said. As a plus, OIS and Santander no longer face the potential of being named in class actions over the investments since Switzerland does not allow class actions. The plaintiffs filed for reconsideration, but Scheindlin denied the request, Danon said. As a sidelight, Danon said the plaintiffs attorneys took a jailhouse deposition of Madoff. Danon also scheduled time with Madoff, but the judge wound up dismissing the case days before. “As far as I know, it is the only case where he was deposed,” Danon said. Criminal Justice Trio’s defense strategy attacked integrity of sting Matthew Menchel Kobre & Kim Stephen J. Bronis and Paul A. Calli Carlton Fields A.M. Holt Paul Calli, Stephen Bronis and Matthew Menchel gained acquittals in a Foreign Corrupt Practices Act sting. Deputy U.S. Attorney General Lanny Breuer called it the most significant Foreign Corrupt Practices Act lawsuit brought by the Justice Department, calling it a “game changer.” Twenty-two executives and employees of weapon manufacturers throughout the nation were charged with bribing foreign officials to grease a $15 million deal for guns and security gear to the African nation of Gabon. The government employed old-fashioned sting techniques used primarily in drug trafficking cases to attract the executives, meeting some of the defendants at the Miami Mandarin Oriental Hotel. But after a series of acquittals and mistrials, federal prosecutors conceded they had been bested and dropped the entire case. Three of those attorneys came from Miami: Matthew Menchel, Stephen Bronis and Paul Calli. The case, for logistical reasons, was broken up into four trials. Menchel’s examination of the lead agent in the first trial set the table for the second, where Bronis and Calli were successful. There never was another trial. Prosecutors dropped all charges, even against three defendants who were awaiting sentencing after pleading guilty. “I think it’s going to be a sea change as to the way the government prosecutes these cases,” Bronis said. “Certainly, when it comes to the strategy of trying to use some sort of sting operation, the government will be hard-pressed to do this type of thing again.” Menchel represented Pankesh Pantel, a U.K. weapons broker, in the first trial of four defendants. Despite opposition from other defense attorneys in the case, Menchel decided to call the lead FBI agent. “The approach we took was to put the government on trial by attacking the integrity of the investigation,” he said. U.S. District Judge Richard J. Leon in Washington, who presided over the trial, praised Menchel in a recent speech, saying, “He systematically took apart the conducting of the sting operation.” Menchel was able to show the jury that the word commission was used, but never bribe or kickback. He showed text messages between the lead agent and the lead informant about defendants who wanted out of the deal but were lured back in with assurances it was legal. “It was no doubt the turning point of the case. It changed the entire dynamic of the trial,” Menchel said. “The government thought we were doing it as a bluff so they would call him. They were completely caught by surprise.” The jury was deadlocked on all four defendants in the first trial. In the second trial, the judge dismissed conspiracy and money laundering counts against six defendants. He also gave a directed verdict of acquittal to Bronis’ and Calli’s client, Stephen Giodanella, CEO of Fort Lauderdale’s Protective Products International Inc. Three others were acquitted, and a mistrial was declared for two other defendants. Calli said Bronis was able to expose informant Richard Bistrong, who was prosecuted for his own FCPA violations. “I think by the end of Steve’s cross, people understood that Bistrong wouldn’t know the truth if it bit him in the backside,” Calli said.
  15. 15. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012 Finalist AA15 Finalist Attorneys untangle mess to prove wrong Carlos in custody 12 years later, Marc Seitles and Ashley Litwin Law Office of Marc David Seitles Miami attorney Marc Seitles can’t stop making the movie analogy when it comes to his client, Carlos Ortega Bonilla. But the removal of Ortega from the tangled mess of a 18-defendant cocaine trafficking case came about because of an extraordinary partnership. And it freed the former head of Colombia’s equivalent of the Federal Aviation Administration. “I should have kept a journal of this case,” Seitles said. “There were so many twists and turns and ups and downs. The entire case from Colombia to extradition to freedom was a roller coaster.” Seitles and associate Ashley Litwin teamed up with Ed Kacerosky, a well-respected former U.S. customs agent who helped bring down the Cali cartel. He is now a private investigator and consultant. It also was a rare instance of a defense attorney sitting down with federal prosecutors and laying out his case of mistaken identity before trial in hopes of getting the charges dropped. Seitles showed the Carlos speaking on taped phone calls was not his client. Marc Seitles Ashley Litwin Seitles ran into Kacerosky by happenstance at a Bogotá hotel when Kacerosky was working another case and asked him to help. At first skeptical, Kacerosky became convinced of Ortega’s innocence after meeting with him. “Here is this guy who is a government agent who helped prosecute hundreds upon hundreds of Colombian drug traffickers working with a guy who represents Colombian drug traffickers,” Seitles said. “We were like The Odd Couple.” Ortega was a lifelong bureaucrat with Colombia’s aviation regulatory agency who blew the whistle on the lack of airline safety in the Latin American country. Upon retirement, he went into the business of brokering aircraft. He was arrested by the Colombian national police and charged in Miami last year with supplying drug traffickers with aircraft. Nine appeals in the Colombian justice system failed, and Ortega was extradited to the United States. Kacerosky went through hundreds of hours of recorded calls and confirmed Ortega had been misidentified. He found a co-defendant who was willing to testify Ortega had nothing to do with the drug ring. They also discovered false grand jury testimony on Ortega’s role. Litwin was key in writing all the substantive motions in the case. “She was the brains behind the motions to try to get the disclosure of early discovery,” Seitles said. The U.S. attorney’s office, though, said it had more than just the wiretaps. It had a cooperating witness. Ortega gave Seitles permission to waive attorney-client privilege and show his evidence to prosecutors. In an unusual meeting in August, prosecutors heard what Seitles and Kacerosky had to say. Charges were dropped Aug. 31, and Ortega returned to his native Colombia. Seitles and Kacerosky waived their fees, knowing Ortega’s family did not have the money to pay. “It was like unpeeling an onion,” Seitles said. “The more we kept digging, the more we were certain our client was 100 percent innocent.” Intellectual Property For Tripp Scott duo, it’s David v. Goliath Part II Peter Herman and Alex Brown Tripp Scott The corporate giants Peter Herman slays in court just keep getting bigger. So do the jury verdicts. In 2010, Herman was the lead attorney in a case pitting the inventor of a hand guard for tabletop saws against Home Depot stores, which hired a third party to copy his device. A Miami jury awarded Herman’s client $24 million in royalties, punitive damages, prejudgment interest, attorney fees and costs. Just 1½ years later, Herman and fellow Tripp Scott director Alex Brown had a repeat victory. A jury in Binghampton, New York, decided Security Mutual Life Insurance Co. owed a father-and-son team $26 million in compensatory and punitive damages. “It was a larger company against a smaller company,” Herman said, calling both cases classic David-and-Goliath disputes. Roger and Aaron Banks of Troutman, North Carolina, designed a computer program to sign up employees at Lowe’s home improvement stores for payroll deductions on life insurance. They christened their company Member Services Inc. and their software CU@Work. “The computer system linked up Lowe’s to the credit union and the insurance company to make it a virtually paperless system,” Herman said. Member Services struck a deal in which Security Mutual agreed to provide the life insurance. But the insurance firm did more. “They took the computer system back to New York, essentially copied it and shared it with other agents,” Herman said. Peter Herman and Alex Brown of Tripp Scott pursued fraud claims on insurance software. Binghampton was a less-than-ideal venue for someone challenging Security Mutual. The insurance company, the largest employer in town, had just pledged $25,000 to relieve recent flooding. Despite that, jurors in U.S. Magistrate Judge David Peebles’ court agreed with the Bankses. “They found for Roger and Aaron on all counts, and the counts included what we thought was fraud,” Herman said. Security Mutual played hardball, at one point canceling policies the Bankses had written and having their cars towed, Herman said. He considered an internal email from a Security Mutual vice president to be the most damaging evidence. “The email basically said ... ‘Why don’t we just nuke them and go direct?’  ” Herman said. “I don’t think the jury was very happy with that email.” Candace West He and Brown, on the other hand, were very happy with the verdict. “Twenty-six million dollars in Binghampton is a big deal,” Herman said. Jurors deliberated only 10 minutes on compensatory damages, “and $16 million was not far off from what we asked for,” Herman said. Punitive damages added $10 million. The total made the case No. 1 on Verdict Search’s list of intellectual property awards in New York last year and No. 75 nationally. Verdict Search is an ALM affiliate of the Daily Business Review. Herman and Brown filed a satisfaction of judgment with the court on March 13, 2011. Peebles closed the case the next day after Member Services agreed to not seek $12.6 million in prejudgment interest and other costs. Signed stipulations prevent either side from making further appeals. “We took it on a contingency basis, and it obviously worked out well for everyone,” Herman said. defense team erases woman’s life sentence David O. Markus and Robin Kaplan Markus & Markus David O. Markus Robin Kaplan For a decade from the time he left the federal defender’s office, Miami criminal defense attorney David O. Markus tried to get Yuby Ramirez’s life sentence reduced without success. Armed with a pair of U.S. Supreme Court decisions, Markus and associate Robin Kaplan finally succeeded this year — 12 years after she was sentenced for conspiracy to traffic in cocaine. “She was young, naïve woman who was taken advantage of by really bad people,” Markus said. “She should have not have been given life in prison.” Ramirez had been offered a five-year and then a 10-year plea deal before her attorneys persuaded her to go to trial in 2000, thinking she could do no worse. But as a defendant tied to the ring run by outsized cocaine cowboys Willie Falcon and Sal Magluta, she faced life if convicted as a member of the drug conspiracy. Ramirez was accused of allowing weapons to be stored at her Miami-Dade home. The guns were used to kill a witness set to testify against Falcon and Magluta. The irony is the hit men got six-year prison sentences in exchange for their testimony against Ramirez and others who went to trial. Markus said after he left the federal defender’s office in 2002, he was approached by Ramirez’s co-counsel, Reuben Cahn, who wanted to right his mistake. “He never gave up on her,” Markus said. “When you lose a case, it sticks in the craw for a long time.” And it did take a long time. U.S. District Judge Joan Lenard twice refused to consider reducing Ramirez’s sentence. U.S. Magistrate Judge Barry Garber also said no. “Over 10 years, we had four different appeals, two evidentiary hearings and eight different briefings in the court of appeals,” he said. “It was really a struggle.” Markus brought in Kaplan in 2008, who worked closely with Ramirez in developing the facts for an evidentiary hearing where she and Cahn testified. The Supreme Court, in two March 21 opinions, extended the right to effective counsel to criminal defendants to the plea bargaining process. Lenard determined in April that Ramirez’s trial attorneys were at fault for advising her to go to trial. The U.S. Court of Appeals for the Eleventh Circuit directed Lenard to strike Ramirez’s conviction and ordered prosecutors to renew a 10-year plea deal. “It was rewarding in a lot of ways, but it was also a relief to be honest,” Markus said. “Because when you take on a case like this, at first you don’t know what you are taking on and you learn more and more, you become attached to the person and more convinced you are doing important and good work.”
  16. 16. AA16 MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW Finalist Carlton Fields team battled cell phone traffickers large and small James Baldinger and Stacey Sutton Carlton Fields A T-Mobile trafficking complaint targeted defendants with shallow pockets. Sherman Terry was serving time in federal prison. George Collett does business as “Cell Phone George” with ads on eBay and Craigslist. U.S. District Judge Ronald Leighton in Tacoma, Washington, awarded T-Mobile a little more than $1 million in July and issued a permanent injunction against Collett, who also operates a bricks-andmortar shop in Tacoma. “Definitely it sends a message to other people out there that T-Mobile is going to come after you,” said lead litigator James Baldinger of Carlton Fields in West Palm Beach. Traffickers purchase and resell T-Mobile SIM cards, often recruiting “runners” on college campuses and inner cities to buy cell phones with the promise that someone on the inside will wipe out the resulting accounts, Baldinger said. There is no inside person, and the accounts are suspended a month or two after they are opened. But the SIM cards are used to keep other accounts operating in an almost Ponzi-like scheme. Google Voice technology enables the traffickers to add a new SIM card number to another customer’s existing account. “There is a huge conspiracy, really worldwide,” Baldinger said. He said customers think they’re buying legitimate cell phones from legitimate dealers. “They don’t know that the phone they got actually started out in a Wal-Mart in Fort Lauderdale,” Baldinger said. They also are usually looking for a short-term deal instead of a two-year James Baldinger Stacey Sutton contract. “Prepaid phones were the most vulnerable to this type of trafficking,” Baldinger said. “In the last two years they’ve graduated to post-paid phones.” The complaint alleged federal trademark infringement, false advertising, violations of the Computer Fraud and Abuse Act, theft of computer data and civil conspiracy. Baldinger, who was assisted by Carlton Fields colleagues Stacey Sutton in West Palm Beach and Gail Podolsky in Atlanta, said the judge assessed the bulk of the judgment against Collett: tripled damages of $349,482 and attorney fees of $182,221. “I don’t think we’re going to collect much of anything from him,” Baldinger acknowledged. But he will continue the battle against traffickers. So far he has filed 33 suits against 87 defendants for T-Mobile and won more than $131 million. “What happens in almost all these cases is that the other side settles,” Baldinger said. This complaint will make a difference. “It was really the first time we had a judge address our claims on the merits,” Baldinger said. The Terry case also was unusual for Baldinger because the defendant was already incarcerated. “It was the first time I took a deposition in federal prison,” he said. Collett currently has ads on Craigslist for other brands of cell phones. “Some of these guys we’ve had to sue multiple times for different carriers. It’s a shame,” Baldinger said. And the traffickers, he said, are usually “bright” individuals. “If they could focus on doing something legitimate, I think we’d all be better off,” Baldinger said. Personal Injury Duo’s work was so effective it made shadow jury cry, led to settlement John Shipley III & Christian D. Searcy Sr. Searcy Denney Scarola Barnhart & Shipley Candace West Christian D. Searcy and John Shipley of Searcy Denney Scarola Barnhart & Shipley reached a $17.5 million settlement. Veteran trial lawyers John Shipley and Chris Searcy built a truck-crash death case so convincing that they made the defendants’ own shadow jury cry. Rather than put on a defense, the insurers ponied up an eight-figure settlement to end it. Jacksonville retirees Vince Modica, 65, and his wife Judy, 63, were stopped in a long queue of traffic on southbound I-95 near the Dunn Avenue overpass in Jacksonville due to an accident ahead in November 2006. A leased tractor trailer operated by Michael Wright of the St. Augustine-area health food company Tree of Life Inc. slammed into the Modicas’ car, shoving them into the truck in front of them. A fireball erupted. The retirees likely burned alive. Wright was returning from Brunswick, Georgia, at the time of the accident and had already worked a long day. He es- caped his burning rig uninjured. He was fined $500, and his license was suspended. No criminal charges were filed. Shipley, a 34-year veteran trial lawyer who specializes in complex medical malpractice and truck-crash cases, shared the witnesses with Searcy, the firm’s CEO, rainmaker and a past president of the American Academy of Trial Lawyers. “This isn’t a typical car crash,” Shipley said. “These cases — truck crashes — are a lot more akin to a medical malpractice case. There’s a ton of paper records available to help build these cases.” Trucking expert Forrest Baker of Heyburn, Idaho, provided key linchpins for Shipley’s argument that Tree of Life provided plenty of incentive for drivers to break the maximum weekly hours permitted under federal law. Baker showed how the food distributor was rigging its records as part of a broader cover-up. Baker speculated Wright fell asleep at the wheel before the collision. Wright, who told several inconsistent stories in sworn testimony, never drove commercially again. The Modicas’ two adult sons, bluecollar workers in their mid-30s with families, and a brother-in-law who represented the estate also testified. Tree of Life’s defense team, headed by Earl W. Gunn and Mark R. Johnson of Weinberg, Wheeler, Hudgins, Gunn & Dial of Atlanta, hired a shadow jury to hear the trial. When the plaintiffs rested, Gunn’s team lost the pro forma arguments for summary judgment — and never presented a case. The insurance giant AIG ultimately settled the case for $17.5 million; the best pretrial offer was $4 million. “After the family testified toward the end of our case, the real jury was doing a good job following the evidence,” Shipley said. But the defense’s shadow “jury — all of them had red eyes.” Shipley said the Tree of Life settlement was noteworthy because it is difficult to secure large pain-and-suffering awards when the victims are approaching their senior years and the survivors are already productive members of the community. “What I think we proved here: It’s just as bad to lose your parents when you’re 35 or 45 and established in the world as it is when you’re much younger,” he said. “They just wanted somebody to take notice. They just wanted somebody to care.”
  17. 17. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012 AA17 Finalist Attorney secured $12.6M judgment for teen amputee, mother Crane Johnstone Schlesinger Law Offices Veteran medical malpractice and personal injury practitioner Crane Johnstone secured a $12.6 million judgment for a quadrilateral teenage amputee and her mother after proving the University of Miami medical school had inoculated the girl with an expired vaccine when she was 2. Johnstone, who tried the case with the help of Charles Patrick and firm founder Sheldon Schlesinger, is still trying to collect the full judgment on behalf of Shaniah Rolle of Miramar. Born with intestinal tract complications, doctors removed Shaniah’s spleen and several other organs two days after she was b o r n , leaving her more susceptible to bacterial infecCrane Johnstone tion. In October 1998, shortly after Shaniah turned 2, she was taken to the UM Medical School pediatric care practice for a routine checkup. During that visit, she was given a vaccine for people without spleens to help fight immune system disorders. In June 1999, Shaniah was rushed to Jackson Memorial Hospital after developing a virulent pneumococcal infection — even though she had been specifically inoculated for pneumococcus just eight months earlier. The infection caused serious blood clots in her extremities. The limbs became gangrenous, forcing doctors to amputate both legs and arms above the joint in two surgeries a week apart. Subsequent investigation revealed the vaccine, which has a normal shelf life of two years, had been expired for five months at the time it was administered. “Because they gave her the expired vaccine, she picked up the very bug the inoculation was supposed to prevent,” Johnstone said. “That’s the crux of the case.” Originally filed in 2001 against several institutions and more than a dozen individual defendants, the suit finally reached a Miami-Dade Circuit jury in December 2011. Fiftythree witnesses were called during the five-week trial. The jury deliberated three days. The verdict sparked more litigation. Over time and several pretrial rulings, the case narrowed to the UM School of Medicine and several doctors. Dr. Jeffrey Brosco was the only doctor declared liable at trial; the others were cleared. During trial, lawyers for UM Medical and Brosco argued Shaniah’s mother, Queen Seriah Azulla Dabrio, also was responsible for failing to properly administer penicillin to help battle the infection. Jurors ultimately accepted this argument because they assigned 40 percent of the liability to the mother for her daughter’s injuries, Johnstone said. In post-trial motions, Johnstone’s team argued UM failed to prove any of these allegations. In July, Miami-Dade Circuit Judge William Thomas, sided with the plaintiffs. The original $7.6 million award escalated to $12.6 million. The odyssey continues. UM Medical and Brosco have posted an appellate bond. Briefs are due shortly in the Third District Court of Appeal. Shaniah, now 16, attends Miramar High, where her attorneys say she leads a vibrant life, including a spot on the cheerleading squad, thanks in part to state-of-the-art prosthetic limbs. “She’s a miraculous kid,” Johnstone said. Finalist Product Liability Attorney earns settlement after fighting government tactics Schlesinger team won hefty award for smoker’s family Jonathan Gdanski, Steve Hammer, Crane Johnstone, Scott Schlesinger Schlesinger Law Offices Richard Schuler Schuler, Halvorson & Weisser T h e first biot e r r o rist act on U.S. soil that claimed lives: Not exactly the basis Richard Schuler for a garden-variety negligence claim. It became a cause, and a career case, for Richard Schuler’s small West Palm Beach-based law firm of six lawyers and two dozen support staffers. Mere weeks after the 9/11 terrorist attacks on New York and the Pentagon, a series of letters containing a lethal strain of the anthrax bacteria was mailed to several targets in Congress and the news media. Five people died — including Robert Stevens, 63, a photo editor for the Sun, a supermarket tabloid based in Boca Raton; 17 became seriously ill; and another 31 tested positive for anthrax exposure. Schuler spent the next nine years building a mammoth investigative file consisting of millions of documents while sparring with the enormous breadth of federal government see page AA18 Candace West Crane Johnstone, Steven Hammer, Jonathan Gdanski and Scott Schlesinger won on bladder cancer claim. A smoker since age 14, Johnnie Calloway suffered a heart attack in 1991 and was diagnosed with bladder cancer a few months later. After his death in 1992 at age 59, his wife, Marvine, sued R.J. Reynolds Tobacco Co., Philip Morris USA, Lorillard Tobacco Co. and Liggett Group LLC for negligence, concealing the dangers of smoking and products liability. A team of four attorneys from the Schlesinger Law Offices in Fort Lauderdale convinced a Broward jury that Calloway was addicted to smoking and his smoking led to the bladder cancer that ultimately caused his death. While most people associate smoking disease with lung cancer, medical specialists testifying at the trial outlined evidence that bladder cancer also can result from smoking. “The unique aspect of this case is the fact that we brought it to trial against all four major tobacco companies,” lead attorney Jonathan Gdanski said. “In the history of American tobacco litigation, there has never been a judgment entered against all four tobacco companies in one case until we did it here.” Gdanski handled the case leading up to trial including almost all discovery, depositions of both plaintiffs and defense experts, and pretrial motions. The Schlesinger legal team included Steve Hammer, who was co-lead trial lawyer; Crane Johnstone, who crossexamined the three defense medical witnesses; and Scott Schlesinger, who cross-examined Phillips Morris’ witness and handled the rebuttal closing. “Overall, it was a joint effort by each member of the team,” Gdanski added. Noting “tobacco cases can be very difficult,” Gdanski said, “Jurors tend to blame smokers for their injuries and usually do not want to put money in the pockets of family members when the smoker died from a tobacco-related disease. Overcoming that initial obstacle is present in every tobacco case.” The jury in May divided comparative liability by assigning 25 percent to Philip Morris, 27 percent to Reynolds, 18 percent to Lorillard, 9.5 percent to Liggett and 20.5 percent to Calloway. Normally, the portion assigned to the plaintiff is subtracted from the total award. However, the jury also concluded the tobacco companies concealed or omitted material information about the health effects and addictiveness of cigarettes, which canceled the liability assigned to Calloway. That preserved the full award for Calloway’s survivors. His widow and daughter, Starr Williams, were awarded $20.5 million in compensatory damages and $54.9 million in punitive damages. The defendants are appealing the verdict. “Marvine Calloway and Starr Williams are very grateful for what the jury did,” said Hammer. “This was never really about the money for them. They realized the tobacco companies killed their husband and father, and justice was done.”