Posts tagged as:

Florida

Florida Center for Investigative Reporting via Columbia Journalism Review:

The nonprofit Citizens Awareness Foundation was founded to “empower citizens to exercise their right to know,” according to its mission statement. The South Florida millionaire backing the foundation hired one of the state’s most prominent public records activists to run it, rented office space, and pledged to pay the legal fees to make sure people had access to government records.

But a review of court records and internal communications obtained by the Florida Center for Investigative Reporting shows that the foundation is less interested in obtaining records and educating the public than in working with a partner law firm to collect cash settlements from every lawsuit filed….

The O’Boyle law firm has filed more than 140 requests on behalf of the foundation and a related group this year, including barrages of requests against engineers and road builders. The general counsel of the Florida Engineering Federation wrote in May that it was “debatable whether they are truly seeking records or just attempting to obtain legal fees for a violation,” a concern shared elsewhere:

“It’s a sad game of ‘gotcha,’ the only purpose of which is to generate an attorney fee claim rather than obtain any actual public records,” said Bob Burleson, president of the Florida Transportation Builders’ Association.

A former executive director of the foundation has resigned, citing ethical concerns. Among numerous small government contractors targeted by the demands are charities and social service providers; an environmental remediation firm says the law firm included a nondisclosure demand that would prevent it from comparing notes with others to receive the fee demands. Ten years ago we reported on a practice in California in which bounty-hunting requesters aimed public records requests at school districts in early summer, then followed with legal fee requests based on the districts’ having missed the short deadline for responding.

More: Ray Downs, Broward/Palm Beach New Times (& John Steele, Legal Ethics Forum).

{ 3 comments }

Politics roundup

by Walter Olson on December 3, 2014

{ 0 comments }

For a lawyer to do that once might seem bad luck, to do it 588 times seems rather like carelessness. [Beck on Eleventh Circuit review of Engle tobacco cases in Florida] Excerpt:

The district court displayed the patience of Job – for a long time it tried to get the plaintiffs to do after filing, what Rule 11 requires them to do beforehand, that is, to perform basic investigation of their cases. …

The court held, with remarkable restraint, that counsel’s inability to track down its own clients before the Engel filing deadline “was at least partially a problem of its own making” because they “signed up so many clients.” …

Maybe Engle Cases is an extreme example, but the problem this litigation exemplifies – massive solicitation of would-be plaintiffs, combined with utter disregard of pre-filing obligations such as Rule 11 – is present in just about every mass tort. In Engle Cases, out of the “4500 cases” originally filed, in the end “we are dealing with 29 ? and heading to 26.” The dirty little not-so-secret of mass tort practice is that the great majority (here it looks like more than 99%) of the cases clogging up the courts would be thrown out with little or no discovery if brought individually.

{ 2 comments }

Like other high Florida awards in tobacco cases, this one, to 61-year-old Richard Boatright of Bartow, grows out of the unique framework of the Engle litigation, which did not succeed as a stand-alone case but laid the groundwork for later payouts. [AP/WFTV]

Reports Angus Loten in the WSJ:

Small-business owners face a growing number of disabled-access lawsuits in the wake of a recent appeals-court ruling giving rise to disabled “testers,” as well as the release of detailed federal specifications for curb ramps, self-opening doors and other standards.

…A November 2013 decision by the Eleventh Circuit Court of Appeals in a case against Marod Supermarkets found that someone who isn’t necessarily a patron could be a “tester” of disabled-access compliance. That cleared the way for individual plaintiffs to bring dozens, even hundreds, of lawsuits against multiple businesses, as serial testers….

The litigation upswing also follows the Justice Department’s release of a set of compliance standards for the 24-year-old federal disability law. Those standards, which came into force in March 2012, include detailed specifications for long-standing requirements, such as the allowable slope of a wheelchair ramp and the exact height of towel dispensers in accessible restrooms. They also introduced a new requirement for hotels with pools to provide a “pool lift” for disabled guests, which went into effect last year.

Some business owners say the lawsuits accomplish little more than providing revenue to attorneys. …

We warned about the pool-lift requirement multiple times. The article reports that plaintiffs are filing multiple suits against hotels in Florida for not having the lifts; along with Florida, California and New York account for a high share of all accessibility actions against local businesses and retailers, in part because of favorable state and city laws that increase complainants’ legal and financial leverage.

The website of Morgan & Morgan, the large personal injury firm headed by politically active Orlando attorney John Morgan (“For the People”), announces the firm’s interest in handling cases alleging overtime infractions and other wage and hour violations under the Federal Labor Standards Act (FLSA), and boasts that its client recoveries in employment cases have exceeded $50 million. Not mentioned is a recent case in which Morgan & Morgan is reported to have “reached a settlement meant to resolve a former field investigator’s allegations that he was not properly paid overtime, according to [an October] filing in Florida federal court.” [Scott Flaherty, Law360] According to an article last year on the dispute, Christopher Hranek “was a field investigator for Morgan & Morgan from June 2008 until he was ‘terminated’ by mail in August 2012 while on Family Medical Leave Act leave, according to the lawsuit. He alleged that he routinely worked more than 40 hours a week and sometimes up to 70 hours weekly, using his 1999 Ford to drive to various locations in the state as the firm’s preliminary contact with injured people or potential clients, but did not receive overtime compensation.” The firm denied the allegations and said it had paid Hranek appropriately. [Jane Meinhardt, Tampa Bay Business Journal; earlier]

{ 3 comments }

Liability roundup

by Walter Olson on October 22, 2014

  • How legal doctrine changes in a state-based system: “The Diffusion of Innovations in Tort Law” [Kyle Graham]
  • Are courts growing (appropriately) disillusioned with cy pres? [James Beck and Rachel Weil, WLF; Beck, D&DL, on Redman v. RadioShack]
  • “Asbestos lawyers want $2.5 million for losing fight to keep Garlock records sealed” [@DanielDFisher on Legal NewsLine report] “Third Circuit rules against plaintiff who ‘just knew’ asbestos was used in Navy vessels” [Heather Isringhausen Gvillo, LNL]
  • Eric Alexander on the runaway $9 billion Actos verdict [Drug and Device Law, citing Dr. David Kessler, former FDA chief, as "plaintiff's mouthpiece"; earlier on Actos/Takeda case]
  • “Third-Party Bad Faith Claims Add $800M to Florida Auto Insurance Costs: IRC” [Insurance Journal]
  • Discussion of proposals to change contributory negligence for bicyclists in D.C., mucho comments [Greater Greater Washington]
  • “Missouri Supreme Court Invalidates State’s Legislative Cap on Punitive Damages” [Mark Behrens]

Liability roundup

by Walter Olson on September 17, 2014

{ 1 comment }

Details, always those pesky details: “A federal appeals court has upheld the dismissal of 750 tobacco suits, citing this major problem: The Florida law firm that brought the cases had mistakenly identified 588 dead smokers as still being alive.” [ABA Journal]

{ 4 comments }

Torts roundup

by Walter Olson on August 11, 2014

  • Celebrated as the “most insane amusement park ever,” New Jersey’s notorious Action Park reopens, minus some of its most extreme hazards [National Post]
  • Insurance industry study finds attorneys getting into higher share of auto crash claims [IJ]
  • Medical monitoring cases, once seen as wave of future, have not fared well in court [Steven Boranian, DDL]
  • “Florida high court’s irrational ‘rational basis’ rejection of state tort reform undermines Rule of Law” [William W. Large, Washington Legal Foundation]
  • For a sense of where tort pressure is being felt, list of litigation groups at AAJ (including newly formed groups) often provides clues;
  • Los Angeles jury finds team partly liable in $14 million negligent security award for man beaten in Dodger Stadium parking lot [AP]
  • “Perhaps this is the first of a wave of hose-entanglement cases” [Lowering the Bar, Louisiana]

In Schools for Misrule, I had positive things to say about the “reading law” or apprenticeship alternative to law schools, and the New York Times “Room for Debate” feature now runs a roundtable on that question with contributors that include Brian Tamanaha, David Lat, and Erwin Chemerinsky. Much deeper disruption than that may lay ahead: “Within ten years, MOOCs [massive open online courses] could replace traditional law school classes altogether, except at a few elite law schools” [Philip Schrag via TaxProf] And are law schools pro-cyclical? The state of Florida saw a steeper boom and deeper bust in legal services than the rest of the country; it doesn’t seem to have helped that five new law schools have opened lately in the state, or that many Florida law schools succeed in placing fewer than half of their grads in paying positions for which bar passage is required. [TaxProf]

{ 1 comment }

“If we don’t get a dime, that’s OK, if we can make a difference and save some lives,” said longtime Overlawyered favorite Willie Gary, one of the lawyers representing a woman awarded $23 billion-with-a-b in punitive damages by a Florida jury for the lung cancer death of her husband, a longtime smoker. [USA Today] I’ve covered earlier stages in the long-running Florida Engle tobacco litigation, which included a $145 billion punitive damage verdict later thrown out, in articles here, here, and here, as well as Overlawyered coverage; more on Willie Gary.

More: Jacob Sullum on the illogical basis of the jury’s decision.

Politics roundup

by Walter Olson on May 26, 2014

  • NY Assembly Speaker Sheldon Silver hangs blame for a retrospectively unpopular position on the *other* Sheldon Silver. Credible? [NY Times via @jpodhoretz]
  • Julian Castro, slated as next HUD chief, did well from fee-splitting arrangement with top Texas tort lawyer [Byron York; earlier on Mikal Watts]
  • 10th Circuit: maybe Colorado allows too much plebiscitary democracy to qualify as a state with a “republican form of government” [Garrett Epps on a case one suspects will rest on a "this day and trip only" theory pertaining to tax limitations, as opposed to other referendum topics]
  • “Mostyn, other trial lawyers spending big on Crist’s campaign in Florida” [Chamber-backed Legal NewsLine; background on Crist and Litigation Lobby] “Texas trial lawyers open checkbooks for Braley’s Senate run” [Legal NewsLine; on Braley's IRS intervention, Watchdog]
  • Contributions from plaintiff’s bar, especially Orange County’s Robinson Calcagnie, enable California AG Kamala Harris to crush rivals [Washington Examiner]
  • Trial lawyers suing State Farm for $7 billion aim subpoena at member of Illinois Supreme Court [Madison-St. Clair Record, more, yet more]
  • Plaintiff-friendly California voting rights bill could mulct municipalities [Steven Greenhut]
  • John Edwards: he’s baaaaack… [on the law side; Byron York]
  • Also, I’ve started a blog (representing just myself, no institutional affiliation) on Maryland local matters including policy and politics: Free State Notes.

{ 1 comment }

Eleventh Circuit federal judge Gerald Bard Tjoflat has long been a critic of “shotgun pleadings,” which have been defined as pleadings that make it “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief,” as when every succeeding count indiscriminately incorporates the allegations of all previous counts. He’s back at it in a decision last month [Paylor v. Hartford Fire Insurance, PDF; South Florida Lawyers]:

We add, as a final note, that the attorneys in this case could have saved themselves, their clients, and the courts considerable time, expense, and heartache had they only paused to better identify the issues before diving into discovery. . . .

That such a straightforward dispute metastasized into the years-long discovery sinkhole before us on appeal is just the latest instantiation of the “shotgun pleading” problem.

After describing a vague complaint brought under the Family and Medical Leave Act (FMLA):

Defense attorneys, of course, are not helpless in the face of shotgun pleadings—even though, inexplicably, they often behave as though they are. A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule 12(e)4 on the ground that the complaint provides it with insufficient notice to enable it to file an answer.

That not having happened, and the judge not having sua sponte instructed the plaintiff’s lawyer to file a more definite statement of claim,

the District Court tossed the case overboard to a Magistrate Judge for discovery.

At that point it was too late: the discovery goat rodeo had begun.

Result: a voluminous and contentious discovery record much of which bore on points irrelevant to the actual resolution of the case.

The persistence of the shotgun pleading problem is particularly frustrating because the relevant actors all have it within their power to avoid it. Nothing is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly nothing is stopping defense lawyers from asking for a more definite statement; indeed, their clients would be well-served by efforts to resolve, upfront, the specific contours of the dispute, thereby lessening or even eliminating the need for costly discovery. And nothing should stop District Courts from demanding, on their own initiative, that the parties replead the case.

{ 1 comment }

Last month I wrote about a strangely aggressive FBI raid on the rural Indiana home of a retiree locally famous for collecting artifacts and curios from around the world. In a piece written then but overlooked by me at the time, Radley Balko puts this in the context of equally aggressive armed enforcement raids on Indian artifact collectors in Florida and Utah, resulting in ruin for many defendants and, according to the reporting, at least four suicides of persons under investigation. Balko:

I remember collecting arrowheads as a kid. Depending on the state and the land on which you’re finding them, that in itself may or may not be legal today. Some states began banning the practice decades ago. But the laws were rarely enforced, and when they were, authorities targeted people stealing from preserved sites or tribal lands, or selling high-dollar artifacts.

No more. Under the phalanx of state, federal, and tribal laws, it may be a felony not only to buy and sell some manmade artifacts, but also to remove them from the bottoms of creek beds or dig them from the dirt. Most of the people busted in the Florida raids were hobbyists. And it’s conceivable that some of them had no idea they were breaking the law — though it also seems likely that some probably did.

{ 5 comments }

  • Mayor de Blasio settles firefighter bias suit on terms sympathetic to plaintiffs [City Journal: Dennis Saffran and Seth Barron]
  • One way to dodge some Culture War fights: roll meaning of “public accommodation” back to travel, lodgings, places of public amusement, etc. [Andrew Kloster, Heritage] As original/creative expression goes, florists and cake-bakers sometimes outdo NYT’s Greenhouse [Ann Althouse] From Dixie Chicks to Hobby Lobby, few escape hypocrisy when commerce collides with convictions [Barton Hinkle]
  • Department of Education’s Office of Civil Rights investigating Florida’s popular Bright Futures college scholarship program [Orlando Sentinel]
  • Do EEOC mediators overstate risk of legal action to extract big settlements from employers? [Bloomberg BNA, Merrily Archer on survey] New Colorado expansion of employment liability bad news for large and small employers alike [Archer]
  • “Religious exemptions — a guide for the confused” [Eugene Volokh]
  • Washington Post columnist repeats myth that Lilly Ledbetter “did not know she was being paid less than male counterparts” until after statute of limitations had run; Hans Bader corrects [letter to editor]
  • If helping out local people was one reason your town decided to back public housing, you might have been played for suckers [AP on DoJ suit against Long Island town over local preference]

Politics roundup

by Walter Olson on April 11, 2014

{ 1 comment }