1 FOWLER RODRIGUEZ VALDES-FAULI Counselors at Law EXPERTISE ADVOCACY REACH SUCCESS Former Assistant U.S. Attorney Joins Fowler Rodriguez Valdés-Fauli Former Assistant United States Attorney Peter Thomson has joined the firm as a partner and leads the firm s government investigations and criminal defense practice. Mr. Thomson has an impeccable record spanning twenty-three years of service with the U.S. Department of Justice. Mr. Thomson will help navigate and defend businesses against a broad spectrum of regulatory, environmental, and criminal enforcement actions related to maritime and environmental offenses, health care fraud, the Foreign Corrupt Practices Act, money laundering, financial fraud, and corporate corruption, together with many other regulatory and criminal statutes. Mr. Thomson, who has previous civil experience, will be available for select civil litigation as well. Between 1987 and 2011, Mr. Thomson served as a federal prosecutor in the Eastern District of Louisiana where he handled hundreds of federal investigations and argued appeals before the U.S. Fifth Circuit. He supervised and conducted numerous complex investigations and prosecutions involving the RICO Act, white collar crime, crimes on the high seas, money laundering, murder, narcotics trafficking, and public corruption. Mr. Thomson s trial and litigation experience is extensive. In 1986, as an Assistant District Attorney, he successfully tried approximately two-dozen cases in state criminal district court. As a federal prosecutor, he tried nearly thirty criminal jury trials in federal court. Impressively, in all cases, the U.S. Government prevailed and the defendants were convicted. Serralles Seals Aviation Deal Juan E. Serralles, IV represented a group of Venezuelan investors in the purchase of a majority interest in a multi-jurisdictional Argentinean aeronautical company. He also represents the company in negotiating contracts relating to the modification, co-production, and logistical maintenance support of freighter, passenger and multi-purpose aircraft throughout the Latin American region. Laviasa is a privately owned aircraft factory in Argentina. Recently Laviasa s president, Manuel Prieto, presented the newest version of the only aircraft (Biplaza-Puelche) designed and manufactured in the Argentinean province of Mendoza. The aircraft is multipurpose ~ suitable to constitute a basic trainer to train civilian pilots (including those engaged in the fumigation, glider towing, advertising, first actions against forest fires, monitoring of pipelines, power lines, and photography, among other benefits). The two-seater aircraft received certification from the National Administration of Civil Aviation and the Federal Aviation Administration (FAA) as the only training airplane to be commercialized in worldwide markets. Argentinean authorities proudly gathered at the IV Brigada Aérea for a reception in Mendoza, Argentina attended by high ranking government officials including representatives from the Department of Defense and Juan Serralles. Aviation authorities concur that the certification is the most important in Argentina and all of Latin America s aviation industry.
2 In The News: Successful Defense of Farm Stores Grocery Chain Luis A. Espino, Esq. successfully represented the Farm Stores grocery store chain in its defense of a multi-million dollar lawsuit brought against it by The H.T. Hackney Company. Mr. Espino also obtained a default against Hackney in connection with the affirmative claims brought by Farm Stores. Farm Stores is a convenience store chain that has operated in the State of Florida since In the late 1990 s, it entered into 3 exclusive distributorship agreements with the H.T. Hackney Co. Several years into the relationship, Farm Stores discovered Hackney was overcharging for its products. Farm Stores brought suit against Hackney in Hackney brought a separate claim against Farm Stores in 2003 seeking damages in excess of $5 Million. During the course of the litigation, Mr. Espino discovered that Hackney had destroyed certain critical documents necessary to calculate the damages Farm Stores suffered. Mr. Espino brought a motion to strike Hackney s pleadings as a sanction for the intentional spoliation of evidence. The court granted the motion and entered a default against Hackney on all counts. Shortly after the court s ruling, Hackney claimed to have discovered certain documents that could serve as a suitable replacement for the evidence it had destroyed. Hackney moved for a rehearing on the basis of the newly discovered evidence. The court denied the motion for rehearing, noting that Hackney did not use reasonable diligence in attempting to locate the substitute evidence. The trial on damages will be limited to the losses Farm Stores is able to prove despite the absence of the evidence Hackney destroyed. Ownership of Disputed Property Affirmed In a case argued by Edward Bret LeBreton, James C. Rollings prevailed in the United States Fifth Circuit Court of Appeals, establishing ownership of disputed property, including a valuable drum shaft. The dispute began when Rex- Tech International, LLC sought to sell various items of oilfield equipment on its lot. Mr. Rollings, a former employee, claimed ownership of the disputed equipment. Rex- Tech sought a declaration that, in fact, it owned the property. The bankruptcy court and the district court ruled in favor of Mr. Rollings, and Rex-Tech appealed. The Fifth Circuit held that the presumption that the possessor owned the disputed equipment did not apply because ownership had been disputed from the beginning. It further held that Mr. Rollings initial bankruptcy schedules that did not include the disputed equipment were not binding admissions because they were superseded by subsequent filings. Finally, the court held that there was sufficient evidence for the bankruptcy court to credit the testimony of Mr. Rollings over evidence presented by Rex-Tech, particularly that Mr. Rollings had paid for the drum shaft with a personal check. 2 Recent Interpretation of Florida s Constitution Affirms a Foreigner Can Claim Homestead Exemption Earlier this year, Miami partner Guillermo Luis Dominguez took up the cause of a widow and her son who were about to lose their home to the creditors of her deceased husband. Guillermo appealed the trial court s denial of homestead protection. The ruling was based on the generally accepted interpretation of the Florida Constitution that an alien in the U.S. under a temporary visa is not entitled to the homestead exemption from creditors. On November 23, 2011 the court of appeals reversed, and the decision potentially affects every foreigner who owns residence in Florida and whose family, wife or children, are U.S. citizens or permanent residents. According to the appellate decision, all that the property owner needs to show to qualify for homestead protection is that a member of his family lives on the property and that he intended that the property be that family member s permanent residence. Once this is established, the property is exempt from execution by the owner s personal creditors.
3 In The News... (cont.) Insurance Company Sanctioned After Firm Discovered Rapper Mystikal Had Usufruct of Home FRVF partners Daniel Lichtl and Wade Webster obtained a court judgment holding a national title insurance company liable for statutory penalties and attorney s fees under the Louisiana bad faith insurance statutes after it failed to promptly remit payment under a $350,000 title insurance policy for the client s home in the Country Club of Louisiana. After purchasing the home, the Firm s client discovered that the nationally known rapper Michael Tyler, aka Mystikal, had an undisclosed usufruct on the home, and it was also subject to $1.1 million in IRS liens and other judgments. These title defects thwarted a sale of the client s home, so the Firm submitted a claim under the title insurance policy that was not promptly paid. The title insurance company delayed payment for seven months, claiming that it would cure the title rather than remit payment. The failure to pay forced the firm to file a lawsuit for our client. The court found that the seven month delay of worthless efforts to cure the title was unjustified under the Louisiana statutes that require an insurance company to remit payment within thirty days of receiving a proof of loss and rendered a judgment in favor of the client. The title insurance company appealed the judgment, but our attorneys were successful on appeal. The Firm s client recovered the full amount of his $350,000 title insurance policy, plus $80,000 in attorney s fees and penalties. Four Million Dollars Worth of Assets Returned to Client Peter Thomson won a substantial victory for a firm client, the surviving spouse of a nationally recognized Restauranteur, when the St. Tammany Parish District Attorney and Sheriff s Office returned millions of dollars in seized assets to the client s rightful possession. The Sheriff s Office sought forfeiture of approximately four million dollars in tangible assets held by the client as investments together with $217,000 in cash. Before the District Attorney could file a formal forfeiture claim against the non-cash assets, Mr. Thomson intervened and secured the return of ninety-percent of the cash together with all of the client s seized assets. The nightmare scenario began when detectives served a search warrant on a residence owned by the client s son. When detectives found a letter indicating that the son might have safe-deposit boxes at Hancock bank, they obtained additional search warrants. Upon opening the boxes the bank linked to the son, detectives found and seized about four million dollars worth of assets, including precious metals, jewelry, and $217,000 in cash. Although the bank boxes and assets actually belonged to the son s mother, the State produced evidence that the son had accessed the boxes on occasions when he allegedly obtained shipments of marijuana. The Sheriff s Office vigorously attempted to retain all of the assets under Louisiana s repressive forfeiture laws, arguing the valuables and cash were related to the sale and purchase of illegal drugs. Mr. Thomson contested the State s forfeiture claim in court, and then negotiated with the District Attorney and Sheriff s Office, both of which initially maintained that the assets could be lawfully forfeited. However, Mr. Thomson presented evidence and legal arguments which ultimately persuaded the Sheriff s Office and District Attorney to return all of the seized assets together with $197,000 of the cash to the client. 3
4 In The News... (cont.) Limitation of Liability Successful for Delta Towing, Inc. Larry DeMarcay Speaks at Tulane Larry DeMarcay Spoke at Tulane University Law School s 22nd Annual CLE by the Hour on December 29, The title of his presentation was The Effect of Medicare Set Asides on Settling Jones Act Personal Injury Cases. Anthony D Alto II Edward LeBreton On January 12, 2011, Judge Rebecca Doherty of the Western District of Louisiana granted limitation of liability in favor of Delta Towing, Inc. The ruling was obtained by Edward "Bret" LeBreton, Anthony D'Alto II, and Delos Dee Flint and substantially reduced the amount awarded against Delta. The Limitation Act provides that the liability of a vessel owner for a property damage claim shall not exceed the value of the vessel and pending freight if the negligent act causing the incident occurred without the vessel owner's privity or knowledge. Delta Towing's tugs, the Delta Owl and Delta Mallard, were towing a barge rig owned by Basic Energy Services. The flotilla struck the underside of a bridge, causing damage to the barge. There was obvious operational negligence on the part of Delta Towing's captain. Mr. LeBreton and Mr. D'Alto successfully proved at trial that the captain's failure to execute a pre-tow questionnaire prior to undertaking the voyage at issue was the cause of the allision and not within the privity and knowledge of Delta Towing's management. Key to the ruling was that Delta Towing had an adequate safety system in place, and that Delta management had consistently enforced the procedures required by the safety management system. Accordingly, the failure of the captain to execute the pre-tow questionnaire was not within privity and/or knowledge of Delta Towing. Further, the court found that both the Pennsylvania Rule and the Oregon rule created only presumptions of fault and that Delta has successfully shown that any other faults for which it was responsible did not contribute to causing the allision. 4 Plaintiff Seeking $3Mil Awarded Nothing; Flint s Successful Defense Upheld for ENSCO We previously reported on the significant defense verdict obtained by Delos Dee Flint on behalf of ENSCO Offshore Company, sending a personal injury plaintiff seeking $3 million home to Pensacola, Florida empty-handed. That verdict was recently upheld by the United States Court of Appeals for Fifth Circuit. The Fifth Circuit affirmed the District Court s decision on both counts. Significantly, the Fifth Circuit found that ENSCO adduced ample evidence at trial to support a finding that any negligence was solely attributable to plaintiff, citing to testimony elicited from plaintiff s co-workers and well as Flint s crossexamination of plaintiff. The Fifth Circuit also affirmed the trial court s evidentiary ruling on the post accident root-cause investigation report, noting that appellant did not contravene the Court s ruling that the report was inadmissible hearsay and since the author of the report testified at trial, plaintiff could not show he suffered any prejudice as a result of the exclusion of the report. Flint was assisted at trial and with the appellate briefing by associate Jacob Gardner and paralegal Pat Bridges.
5 FRVF Attorneys Speak Out: Jacob Gardner Speaks at Admiralty Law Institute Jacob Gardner Spoke at the 2011 annual seminar of the Southeastern Admiralty Law Institute ( SEALI ) held in St. Simon s Island, Georgia. Mr. Gardner s paper and presentation examined significant admiralty cases pending in the Fifth, Ninth, and Tenth Circuits during the past year. The presentation covered the LHWCA, COGSA, seaman s status, the causation standard in Jones Act claims, and limitation of liability. Raúl J. Valdés-Fauli Speaks at the Spain-Florida Law Firms Forum Raúl J. Valdés-Fauli was the featured Speaker in the SPAIN-FLORIDA LAW FIRMS FORUM held in Miami on November 2nd. The Forum was sponsored by the Consejo Nacional de la Abogacía in Spain, the National Spanish Official Bar Association, which includes the 99 local bar associations of Spain. The Spanish Trade Commissioner in Miami co-sponsored the event. Fifteen of the most prestigious law firms from Spain participated in the presentations. Mr. Valdés- Fauli s presentation focused on the Relationship and Collaboration between North American and European Law Firms. Skipper Chenault Speaks at Tulane Admiralty Law Institute Alanson Skipper Chenault was a Speaker at thetulane Admiralty Law Institute and Maritime Law Conferences. Every other year in March, hundreds of lawyers, converge on the Tulane campus for the Admiralty Law Institute, the oldest (since 1966) and largest continuing legal education program devoted to maritime law. The Institute lasts for three days, and the papers and presentations that it produces are published in the Tulane Law Review. 5 Dee Flint Speaks at 18th Annual Admiralty Symposium On September 30, 2011, Dee Flint Spoke at the Louisiana State Bar Association s 18th Annual Admiralty Symposium. His topic was Maritime Legislative Developments, Proposed Changes, Congressional Hearings and DOSHA Overview arising from the Deepwater Horizon casualty. Mr. Flint presented a paper which he co-authored with Lauren McCulloch, a new associate at the firm. He put together a PowerPoint presentation with the aid of Patricia Bridges, his paralegal, which was well received by the audience. Highlights of the presentation included a review of the laws that were in effect on April 20, 2010 when the Deepwater Horizon casualty occurred, a review of the legislation that was initiated, the legislation still outstanding and a discussion of why a vast majority of the proposals have vanished. The speech then turned to a recent decision of Judge Barbier in the Deepwater Horizon litigation and the effect it will have going forth prospectively. Finally, Mr. Flint concluded his presentation by discussing Secretary of the Interior Salazar s dismantling MMS and the formation of the Bureau of Ocean Energy Management, the Bureau of Safety and Environmental Enforcement and the Office of Natural Resources Revenue. Copies of the paper are available upon request.
6 New Hires: Michael B. Smith joined the Houston office of Fowler Rodriguez Valdés- Fauli as counsel in Mr. Smith practices in the areas of oil and gas law, general litigation, and environmental issues associated with exploration, production, and pipeline operations. His experience includes representing oil and gas operators in property disputes, facility audits, and HSE compliance matters. Mr. Smith also defends claims by the U.S. Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) regarding spills and permitted discharges from vessels, fixed facilities and Department of Transportation (DOT) regulated pipelines. Mr. Smith has represented complex property damage claims as well as regulatory and enforcement cases. Mr. Smith has resolved property contamination lawsuits at former refinery and marketing terminal sites totaling more than $135 million in cleanup liabilities. In the oil and gas domain, Mr. Smith has drafted and negotiated gas transportation and storage agreements on behalf of mineral owners and counseled gas processing plants on compliance with air quality, preconstruction requirements and emission rules. He participated in a successful FERC application to build an interstate pipeline to supply CO 2 gas to Chevron s largest gas field in the Rocky Mountains. Mr. Smith served as Chair of the Environmental Law Committee of the Texas Oil and Gas Association (TXOGA) from He was also Chair of the American Petroleum Industry (API) Environmental Litigation Committee for Offshore Oil and Gas Exploration and Production from 1994 to Mr. Smith received his Bachelor of Arts from University of Texas at Austin in 1975 with honors. He then obtained his Master s degree in City Planning and Land Use and Industrial Siting from University of California at Berkeley and his Juris Doctor from University of California, Hastings College of the Law, where he was an editor of the Constitutional Law Quarterly. Mr. Smith was admittted to the Texas bar in Sabrina G. Stone Kadas joined the Houston office of Fowler Rodriguez Valdés- Fauli as an associate in Ms. Kadas specializes in litigation. Ms. Kadas graduated cum laude from Baylor University in December 2007 with a Bachelor of Arts in Sociology. She was also a member of Phi Beta Kappa honors fraternity. Ms. Kadas then attended South Texas College of Law, where she graduated magna cum laude in December She was admitted into the Texas Bar in While at South Texas College of Law, Ms. Kadas was a member of the South Texas Law Review, where she served as an Assistant Articles Editor, and was a member of Phi Delta Phi honors fraternity. Ms. Kadas was also a Varsity Moot Court Advocate and Brief Writer, where she won numerous awards, including First Place at the 19th Annual National Health Law Moot Court Competition and the 2010 American Society of Writers on Legal Subjects Scribes National Brief-Writing Award. Christopher L. Schmidt is an associate at the Gulfport office of Fowler Rodriguez Valdés-Fauli. Mr. Schmidt began his legal career in 1995 after graduating from The University of Mississippi School of Law. Mr Schmidt was admitted in 1995 to practice in Misssissippi, shortly thereafter, he was appointed Assistant District Attorney in the Second Circuit of Mississippi and began his practice as a prosecutor in one of the busiest criminal courts in the state. His trial experience includes approximately one-hundred jury trials to verdict, as well as dozens more jury trials which settled prior to verdict. Of all the convictions he obtained, only one case has been reversed on appeal. His experience also includes complex forensic evidence and expert witness preparation.
7 New Hires: Michael J. Thompson joined the Firm as an associate in the Gulfport office in Mr. Thompson earned his B.S. in Marine Transportation from Texas AandM University at Galveston in 1999, where he also served as an officer in the Corps of Cadets. After graduation, he began his career in the marine industry, serving as a deckhand, a mate and a captain. Mr. Thompson owned and operated a successful inshore fishing guide service. Mr. Thompson earned his J.D. from Loyola University of New Orleans College of Law. Mr. Thompson was admitted to practice in Mississippi in 2010 and in Louisiana in Mr. Thompson s practice focuses on admiralty and maritime law, including: personal injury defense, collision cases, property damage and loss of use claims, as well as charter parties, ship construction and repair contracts. Lauren Ann McCulloch joined Fowler Rodriguez Valdés-Fauli as an associate specializing in areas of Maritime and Energy. Ms. McCulloch was born in Houston, Texas. She attended Davidson College, where she graduated with a B.S. degree in Biology. Ms. McCulloch obtained her J.D. from Tulane University, graduating magna cum laude with a maritime law certificate. She was Senior Managing Editor of the Tulane Maritime Law Journal and on the Moot Court Board. Ms. McCulloch received the Ray Forrester Award for excellence in Constitutional Law. In 2011, Ms. McCulloch was admitted to practice law in Louisiana. Prior to joining the firm, she was a summer law clerk with Judge Lance Africk. Lewie G. Skip Negrotto, IV joined the Gulfport office in September He attended Louisiana State University, where he graduated in 1986 with a Bachelor of General Studies - Pre-medicine. Mr. Negrotto obtained his Juris Doctor from the University of Mississippi in He was the winner of the annual University of Mississippi Law School Steen- Reynolds Trial Competition, member of the Ole Miss National Trial Competition Team, and a Moot Court Board member. In 1995, Mr. Negrotto was admitted to practice in the state of Mississippi. He was a successful sole practitioner for sixteen years prior to joining the firm. He concentrates in the areas of contract, real estate, family, personal injury, business and criminal defense law. Caitlin R. Byars joined Fowler Rodriguez Valdés-Fauli as an associate specializing in areas of admiralty and maritime law. Ms. Byars was born in New Orleans, Louisiana. She attended Louisiana State University, where she graduated with a B.A. degree in Business Marketing, with a Minor in Italian. Ms. Byars obtained her J.D. from Loyola University where she was a member of the Moot Court Board and obtained a Common Law Certificate and an International Law Certificate. She also was selected to membership in the Order of Barrister Honor Society. Ms. Byars was admitted in 2011 to practice law in all district courts in Louisiana and in the 5th Circuit Court of Appeal in Ms. Byars is also a member of the YLC, the YLSBA, the NOBA, and the ABA. Prior to joining the firm she clerked with the Louisiana Department of Economic Development and Fowler Rodriguez Valdés-Fauli. 7
8 FRVF Community Outreach : FRVF s Gulfport Office Gave Back During Thanksgiving The FRVF Gulfport office fried 150 turkeys to raise money for Hope Haven Children s Services in Hancock County. The fryer that was used holds 300 gallons of cooking oil. Attorneys from the firm worked on an assembly line to prepare the turkeys for the over-sized cooking vat. This allows us to take a moment and just be thankful that we have an opportunity to work in a community like Hancock County to help a charity, explained Garner. The turkeys were sold for $25 each. This is going to put some money in our coffers that we will spend every cent giving out to needy families and helping kids in Hancock County, said Terry Latham, Director of Hope Haven. The attorneys said it s their chance to give back. I think it s important for us to step away from a difficult job, be respective of the fact that other people are in need and do something for them, explained Garner. The fundraiser raised more than $3,000. Harowski Spearheads YLC s Where Ya Rack Program Amid all of the city's new developments, you may have seen the new green bike racks popping up around the Greater New Orleans area with a fleur-de-lis emblem. Our own Michael Harowski spearheaded the effort to provide these racks for local bikers after noticing there were not enough places for bikers to secure their bikes when visiting numerous locations throughout the city. Mr. Harowski is part of a special Leaders Development Series for the Young Leadership Council, which created the Where Ya Rack program in an effort to create alternative forms of sustainable public transportation. There are already over 100 racks installed, and soon that number will double. Many local and community invested businesses, including FRVF, have sponsored the racks at $300 each, and more continue to join in the effort. Sponsored racks feature a dedication decal on the bottom of the bike lock cut-out that honors the donation. Mr. Harowski states that the program is "an excellent way to recognize individuals, organizations or businesses in the community, and he hopes more will continue to do so. To learn more about the program or to make a contribution go to Cuban Study Group for the New Orleans Bar Association Co-Chaired by Fowler & Cot by Rolando Alberto Anillo-Badia (Cuban Law Expert) George Fowler (FRVF) and Jose Cot are co-chairing a steering committee composed of members of the New Orleans Bar Association to study the constitutions, laws and regulations of Cuba. The group will study Louisiana and Cuban legal systems, recognizing their early roots in Civil law tradition. They plan to host programs to stimulate thinking about current and future regulations regarding the island. FRVF has in-house legal expertise on Cuba including: How to best position clients should government regulations over Cuba change; Business practices related to the U.S. Cuba embargo; Transactions covered by the Helms-Burton law and to other applicable U.S. laws and regulations; Advice on OFAC and BIS compliance issues and mitigating risks on complex multinational transactions; Acts before the U.S. Department of the Treasury s Office of Foreign Assets Control (OFAC) and the U.S. Department of Commerce s Bureau of Industry and Security (BIS) as required by the Cuban Assets Control Regulations (CACRs); Positioning our clients in a new Cuba to obtain compensation for expropriated properties. 8
9 FRVF Community Outreach: Breast Cancer Awareness - House of Pink Pink Pigeons Project FRVF partner Philip Brickman and Mullady Voelker Alford (Gifted Nurses) at the House of Pink, which was held at the House of Blues, to raise funds for Breast Cancer awareness. Casa Argentina s Tango Event Timothy W. Strickland (FRVF), John Tschirhart (ATP), James Wells (ATP), Neil Crawford (Blue Ocean Subsea), and Jeff Boettiger (Schlumberger) participated in the The Pink Pigeons Sporting Clay Tournament in Texas. Young Leadership Council Todd Crawford (FRVF) and Candice Reagle put on their dancing shoes for Casa Argentina s Tango Celebration, a fundraiser sponsored by FRVF. Casa Argentina is a nonprofit organization providing local, national, and international philanthropic aid. Offshore Marine Service Association Fishing Rodeo Michael Harowski(FRVF), Christy Harowski, and Philip Brickman(FRVF) attended the YLC s Role Model Awards Gala. United Maritime Group s Annual Cookout FRVF attorney Eve S. Reardon attended the 2011 OMSA fishing rodeo at the Bridge Side Marina in Grand Isle, Louisiana. 9 FRVF attorneys Todd G. Crawford and John A. Scialdone at the United Maritime Group s annual cookout in Tampa, Florida.
10 FRVF Proudly Supports: New Orleans Chamber of Commerce FRVF attorney Cristi F. Chauvin (Chamber Board Member) hosted New Orleans Chamber of Commerce s Young Professional Night; pictured here with co-hosts: Serina Phoenix (left-chamber staff) Cristi Chauvin (FRVF attorney), Mullady Voelker Alford (owner of Gifted Nurses), and Melissa Gibbs (far right-gibbs Construction). Propeller Club Golf Tournament FRVF sponsored New Orleans Chamber of Commerce s Annual Meeting. Susan Tranchina, Cristi Chauvin, Eve Reardon, Jennifer L. Dippel, Sofia P. Bellini, Mark N. Stich, Peter Thomson, Michael Harowski, and Andrew R. Brown attended for FRVF. Loyola Moot Court Golf Tournament Christian Sauce, Philip Brickman, and Michael Harowski played in the FRVF sponsored Propeller Club Golf Tournament. Louisiana Oil and Gas Association Christian Sauce and Philip Brickman attended the Loyola Moot Court Golf Tournament sponsored by FRVF. Christian Sauce won the longest drive price in the competition. Loyola Law School Alumni Lunch The New Orleans Chamber hosted LOGA s President Don Briggs to speak on the state of the industry. Pictured here: Ben Johnson (NOCC), Don Briggs (LOGA President), Cristi Chauvin (FRVF), Bob Nolan (Adams and Reese), Chris N. Wilson, and Christian Chauvin (Bowen, Miclette and Britt). 10 FRVF sponsored the Loyola Law School Alumni Lunch. Pictured here are attendees Christian Sauce, Stuart Ponder, Antonio J. Rodriguez, Mark N. Stich and Caitlin Byars.
11 FRVF Proudly Supports: GNO Inc. Hispanic Chamber of Commerce Edward F. LeBreton, III, Stuart Ponder, Andrew Brown, Caitlin Byars, Peter Thomson, and Lauren McCulloch attended the GNO annual meeting which FRVF sponsored. Pan American Life Christian Sauce, Luis Llamas and BedeMoore Udechukwu attended the Hispanic Chamber of Commerce meeting where FRVF was a Table Sponsor. ENSCO Frank Purvis, Jose Suquet, and John Kelly Celebrate Pan American s 100th Anniversary. Ellis Henican and the Bureau of Governmental Research Fowler Rodriguez will travel anywhere for its clients as Delos Flint did in Dubai. Bryan A. Garner and Antonin Scalia Ellis Henican(top center), a Pulitzer prize winning columnist at New York s Newsday and the co-author with Saint s coach Sean Payton of the NYT s best seller Home Team, is pictured here with Susan Keller-Garcia, Lauren McCulloch, Jennifer Dippel, Eve Reardon (seated), Stuart Ponder, LeMoyne Joseph, Wade Webster, Gene Preaus, and Peter M. Thompson (standing) at BGR s annual meeting. 11 FRVF attorneys A. T. Chenault, Caitlin Byars, Andrew Brown, Christian Sauce, and Lauren McCulloch attended Bryan A. Garner s seminar(pictured in white). Garner co authored Making your Case: The Art of Persuading Judges, with Justice Antonin Scalia.
12 FRVF Findings: Satisfying Physical Damage Requirements of Economic Loss Rule by Philip C. Brickman In Luera v. M/V Alberta, 635 F.3d 181 (5th Cir. 2011), the United States Court of Appeals for the Fifth Circuit examined whether in rem claims (claims against vessels themselves) asserted under admiralty jurisdiction in the same complaint as in personam claims (claims asserted against vessel owners or other parties) asserted under diversity jurisdiction must be tried together before a jury when the plaintiff clearly expressed that the in personam claims are premised on diversity rather than in admiralty under Rule 9(h) of the Federal Rules of Civil Procedure. While a worker was performing activities onboard a vessel moored at a dock in the Port of Houston, his leg was severely injured when a mooring line ruptured after another vessel passed in close proximity at an excessive rate of speed. The longshoreman brought in rem claims against two vessels under admiralty jurisdiction. He also asserted in personam claims against the owners and managers of the vessels under diversity jurisdiction and demanded a jury trial on those claims. The defendants moved to strike the plaintiff s jury demand on the in personam claims on the grounds that a plaintiff who asserts admiralty and some other basis of jurisdiction automatically makes a Rule 9(h) election to proceed in admiralty for the entire case. The district court held that the plaintiff was entitled to a jury trial on all claims, reasoning that the plaintiff preserved his Seventh Amendment right to a jury trial by pleading diversity over the in personam claims as the sole basis for the court s subject matter jurisdiction, rather than as dual or alternate bases. On appeal, the Fifth Circuit appealed the ruling, holding that the plaintiff clearly expressed his intent to assert the in personam claims under diversity jurisdiction and, thus, all claims in the complaint had to be tried together before a jury. The Court distinguished the case from previous cases in which plaintiffs pleaded both admiralty and diversity jurisdiction as dual or alternate bases for jurisdiction. The Court cited Fitzgerald v. U.S. Lines Co., 374 U.S. 16 (1963) as controlling authority for its holding that neither the Constitution nor any statute or procedural rule forbids a jury trial in an admiralty case. Because the plaintiff in Luera s admiralty claims arose out of the same factual circumstances as the diversity-based claims, the Fifth Circuit held that the mere presence of the plaintiff s admiralty claims in the same complaint as claims premised on diversity jurisdiction did not defeat his properly preserved right to a jury trial. This case provides that a plaintiff s failure to clearly choose diversity jurisdiction for in personam claims may constitute a waiver of the Seventh Amendment right to a jury trial. In order to preserve that right for all claims, including in rem claims, the plaintiff must file a complaint clearly expressing the intent that the in personam claims be premised solely on diversity jurisdiction, rather than a dual or alternate basis. If the injury is based on one event causing one set of injuries to one victim, the court likely will grant a jury trial for the entire case. 12
13 FRVF Findings: An Overview of Salvage Law; Avoiding Salvor Exposure by Lawrence R. DeMarcay, III United States-based salvage laws can be confusing. Add a crisis to the mix and you have a recipe for a potential problems. Salvage is the process of rescuing a vessel, its cargo, or other property from peril. Salvage under the general maritime law is a legal concept that tries to be fair to both the distressed property owners and the salvors. There are two types of salvage. Pure salvage occurs when the salvor is a volunteer. Contract salvage occurs when the salvor and the distressed vessel enter into an agreement concerning the salvage effort. For a salvor to bring a pure salvage claim, three elements must be satisfied. One, there must be a marine peril placing the property at risk of loss, destruction or deterioration. Two, the salvage service must be voluntarily rendered and not required by an existing duty or by contract. A contract or other obligation between the salvor and the distressed vessel precludes voluntariness. Additionally, the salvor must have the express or implied consent of the vessel in distress before it renders aid. A vessel that is abandoned by her master and crew does not require consent.three, the salvage efforts must be successful. This element is called the no cure, no pay rule. With Contract Salvage, the parties often make an agreement for contract salvage via a wireless conversation between the master of the salvage vessel and the master of the distressed vessel. It is important that each vessel operator has a plan in place to deal with these unplanned events. As vessel operators crave certainty and prefer to avoid litigation, they should try to avoid a pure salvage situation, where the salvage award is beyond the company s control, at all costs. The negotiation of contractual terms prior to the salvage operation beginning will save the company, and its underwriters, a potential headache in the end. Vessel Owners and charterers should also consider using the Lloyd s Open Forum (LOF) standard salvage contract. The Comings and Goings of Illegal Drugs and Chemical Precursors by José E. Cruz The illegal trade in drugs and chemical precursors, as well as their production, distribution, use, and money laundering, are present in one form or another throughout the world. However, Latin America and South America are highrisk zones due to the enormous production and proximity to the largest consumers. In recent years, events have been developing in Latin America that require proactive attention on the part of those involved in the shipping industry. Under the banner of better control, Latin American countries, particularly Venezuela and Ecuador, have been introducing new regulations that place the burden of proof on the accused. Precursor chemicals are produced and shipped from first world and developed countries. The United States, Chile, Argentina, Europe, and Asia are generally the source of precursor chemicals for South American cocaine. In addition, a growing trend in the use of synthetic drugs is creating a market for the sale and shipment of medicines and chemicals. Crew, officers, and staff must be drug-free. Preventive measures such as drug-detecting PEME-tactics should be used. When possible, periodic drug testing systems should be applied. Drug users are a primary target of traffickers who entice or blackmail them into the trade. Crew on board and staff ashore should be well educated and briefed on this subject, so that they may help to detect, identify, and prevent contamination with unending vigilance. Once an incident occurs, experience and knowhow must be applied. Every member should have a protocol for the captain and crew to follow. The local correspondent should vet these protocols and must have one for the local actions that need to be implemented, as these will prove to be crucial to the outcome. 13
14 Spotlight on: Jordan Amador General Services Coordinator Miami Do you have a nickname? Depends In the office some call me El Niño others El Nene How long have you been with the Miami office? I have been with this group for about 17 years now. What is your favorite memory at Fowler Rodriguez Valdés-Fauli? I would say two of my favorites are my last birthday celebration and my son s baby shower in the office. What is your most embarrassing moment? I traveled to Guatemala to deliver brochures for a presentation, and had to tell Raul at 10pm that I had brought the wrong brochures. I think this tops it! If you could meet anyone from any era who would it be and why? I would say John F. Kennedy. He was a great leader and a great humanitarian. Do you have anything else to add? A funny story? Last year, the Christmas Tree in the office was decorated with pictures of me wearing a reindeer hat... Visitors asked who it was. Stacey T. Norstrud Associate Houston Where did you grow up? Highland Village, Texas What do you enjoy doing in your spare time? I enjoy traveling, riding in bike races, and kickboxing What is something most people don t know about you? I trained with Bela Karolyi. Do you have any interesting plans for your future? I am going to the next two Olympics in London and Sochi (as a spectator, unless I can find a sport that I am really good at). Recent cases, awards and publications? I received an Order of Integrity from a Federal Court Judge. What did you dress as for the FRVF Halloween Costume party this year? What did you wear? I was one half of The Judds. I wore a big red wig and a ridiculous outfit I bought at Macy s. What is your favorite memory at Fowler Rodriguez Valdés-Fauli? My favorite memory is playing basketball in the storage room. Cheryl Schilling Paralegal/Admin. Assistant New Orleans What do you enjoy doing in your spare time? Reading books on history and being with my granddaughters. What is something most people don t know about you? Secretly, I really can cook! Do you have favorite quote or saying? There is always something you can learn from anyone you meet. What did you dress as for the FRVF Halloween Costume party this year? Tweedle Dee from Alice in Wonderland, my husband L.J. (the Firm s administrator), was Tweedle Dum. What is your favorite office activity and why? What is your favorite memory at Fowler Rodriguez The annual Baseball Party, because everyone brings Valdés-Fauli? their families. The closeness and support everyone gave each other after Hurricane Katrina. 14
15 Spotlight On: Governor of New Mexico at FRVF Governor of Mississippi at Fundraiser Carlos Mican (Pan American Life) and Cristi Chauvin (FRVF) welcomed New Mexico s Governor Susana Martinez (center) to FRVF, where she spoke on behalf of the Republican State Leadership Committee. The meeting also included Ed Gillespie, Mary Matalin, Boysie Bollinger, Michael Gray, and George Fowler. Chris Schmidt (FRVF), Steve Simpson (the Republican candidate for Attorney General of Mississippi in the November 2011 Mississippi election/former Commissioner of the Mississippi Department of Public Safety), Mississippi Governor Haley Barbour, and Todd Crawford (FRVF) at a fundraiser in September U.S. Attorney Jim Letten at the Metropolitan Crime Commission FRVF sponsored the Metropolitan Crime Commission Annual Meeting. The United States Attorney for the Eastern District of Louisiana, Jim Letten, was the keynote speaker. He is pictured here with Delos E. Flint, Jr., BedeMoore Udechukwu, George J. Fowler, III, Peter Thomson, and Patricia Bridges of FRVF. Tim Strickland-Rating Upgraded Martindale-Hubble has upgraded Tim Strickland s rating to the highest possible AV Preeminent based on peer reviews. Tim has been practicing maritime law and general civil litigation along the Texas coast for over 20 years. Mike Harowski-Featured Young Lawyer in LA Bar Journal FRVF Attorney Michael Harowski was recently featured in the Young Lawyer s Spotlight Section in the latest issue of the Louisiana Bar Journal. Mr. Harowski was selected by his peers because of his excellent work serving the legal field and his community. 15
16 Spotlight on: George J. Fowler, III Recognized by Hispanic Executive Magazine as a Generational Great in the Legal Field below are some highlights from the story published in the Nov/Dec 2011 Issue of Hispanic Executive Looking Ahead: Where do you see yourself in the next decade? I am optimistic that within the next five years, Cuba will be free. I expect to be a participant to ensure that the people of Cuba enjoy a legal system that functions fairly and efficiently. Because a number of our clients have moved their offshore oil operations to Latin America as a result of the oil moratorium, I am working on establishing permanent offices in Rio de Janeiro, Buenos Aires, and in other cities of Latin America. [We have just opened a second Colombia office in thriving Cartagena under the leadership of my partner, John Scialdone.] Orgullo Latino in The Big Easy relations with Latin America. Interestingly, Fowler s family traces back several generations to New Orleans. His ancestors immigrated to Cuba in the 1700s as consuls from England. Fowler is a pillar of New Orleans Cuban and Latino networks. He advises state officials, such as Louisiana Governor Bobby Jindal and New Orleans Mayor Mitch Landrieu, on how to increase commercial In his pro bono work, he is a founder of the New Orleans Hispanic Heritage Foundation, which has awarded more than 360 merit scholarships to Latin American high school students and produced the Azucar Ball, a black-tie fundraiser featuring Latin music, that is widely supported by Louisiana s corporations. The city, despite the tragedy [of Hurricane Katrina], is a very resilient society, he says. New Orleanians have come back full force. This year Fowler fought against federal regulations to stop offshore drilling. We recently were involved in obtaining a decision ordering the government to issue the oil permits, he says. Fowler says, it s a long battle, and the end is nowhere in sight. Many oil companies are moving overseas to evade drilling restrictions. But Fowler has turned the corporation exodus into an advantage. The latest mission of FRVF is to ramp up business with new Latin American offices and deepen long-held relationships with his law partners abroad. Like a true man of the sea, whatever the tide may bring, Fowler will find his way to the shore. Best Year Ever Fowler says, The firm did exceptionally well in We were retained by a number of important offshore oil interests to handle matters related to the Deepwater Horizon and the offshore oil moratorium. Personally, I was involved in several high-profile trials in Miami for Carnival Corporation and Royal Caribbean. 16
17 Spotlight On: FRVF s Houston Office Our Houston Office had an outstanding year in The lawyers and staff were able to focus on large and complex claims after successfully switching gears from oil spill response in Some highlights from last year include: Mike McCoy and his team continue their work on Hurricane Ike claims. Included therein were the efforts by Mike and his team to represent a long-standing insurance agency in Houston who was sued with respect to claims involving flood losses in a commercial property in Galveston, Texas. Despite the long term insurance relationship between the insurance agency and the insureds, disputes arose because of uncovered losses after Hurricane Ike, which led to the eventual lawsuit. Despite attempts to recover millions of dollars from the agency by a well-known plaintiff s counsel, Mike and his team were successful in negotiating a reduced settlement after and dispositive motions battles in the courthouse. Jon Wise successfully culminated a multi-party well blowout subrogation litigation in the fall of 2011 with a mediated settlement. This case involved novel issues of well control and equipment malfunction in a deep gas well. Jon s handling of this case illustrates the Houston office s experience and ability to assist insurers with their subrogation needs on shore and off shore. Tim Strickland and Mat Gray were instrumental in resolving a complex marine insurance coverage dispute with an amount in controversy approaching $60 million. We take pride in our ability to offer to our clients a true team approach with seamless representation across state line s. Jon Wise and Tim Strickland joined forces to successfully defend a well-known maritime salvage company in a personal injury defense case involving a traumatic amputation. The case, pending in Galveston County, involved complex legal issues between the Longshore Harbor Workers Act and Jones Act. We added some new faces bringing additional depth to our Houston team, including Michael Smith acting as Of Counsel. Our Houston Office very much looks forward to helping our clients in Marine Insurance Seminar Party Luis Cuervo (FRVF), Jon Wise (FRVF), and Kirby Barry (Burleson Cooke) Luis Cuervo (FRVF) and Mary Shaddock (Mary Shaddock Jones LLC) L.J. Schilling, the Firms administrator (FRVF) and Timothy W. Strickland (FRVF) 17 Axel Ufermann (Hannover), Julie Slocum (ENSCO), Eddie Cave (Lloyds)
18 Recognitions: Raul J. Valdés-Fauli Joined Boards and Advisory Council Raul J. Valdés-Fauli has been appointed to the board of directors of the Transplant Foundation, Inc. The Foundation is dedicated to providing services for transplant patients, increasing donation through community education, and funding transplant research. The goal is to provide optimal transplantation, the Gift of Life, to all in need. Mr. Valdés-Fauli has been appointed Chairman of the Miller School of Medicine s Miami Transplant Institute fundraising effort. The Miami Transplant Institute (MTI), a center of excellence at the University of Miami Miller School of Medicine, is one of the world's premier transplant institutes providing a setting for the brightest minds, most advanced research, and finest patient care. For the countless individuals affected by a life-threatening disease and looking for a life saving-organ transplant, the Miami Transplant Institute is their best hope. The University of Miami has a rich history in the field of organ transplantation and over the last four decades has developed into a preeminent, international transplant institute. Under the guidance of three superbly talented division chiefs, Drs. Andreas Tzakis, George Burke, and Si Pham, the transplant faculty performs more than 500 transplant procedures each year, placing the Miller School of Medicine's Miami Transplant Institute as one of the elite high-volume transplant centers in the nation. In addition to liver, kidney, pancreas, heart, and lung transplants, their surgeons are uniquely skilled to perform the most complex procedures such as intestinal and multi-visceral transplants, making MTI one of the few places in the world where such extraordinary surgeries are undertaken. Mr. Valdés-Fauli was also invited to join the Dean s Advisory Council at Florida International University College of Law to assist Dean Acosta in turning his vision for the law school into a reality. Miami-Dade Committee Appointed Lourdes Cuzan Lourdes M. Cuzan was appointed to the Miami-Dade County Sister Cities International and Consular Corps Committee for a two-year term. The Sister Cities Program of Miami-Dade County is administered by the Miami- Dade County Office of Economic Development and International Trade (OEDIT). The program promotes citizen diplomacy, international cultural understanding and trade and commerce by receiving foreign missions, leading missions to partner communities abroad, and developing projects that foster interest in world affairs. Eve Reardon Received Exemplary Service Award Eve Reardon received an award for Exemplary Service as a Member of the Louisiana State Bar Association Young Lawyers Section Council at the June 2011 Annual Meeting in Los Angeles, CA. Eve is finishing her second two-year term as the Orleans Representative of the Young Lawyers Section Council and the Chair of the Barristers for Boards program. Award Named After Former Partner James K. Carroll The memory of the late James K. Carroll (former FRVF Partner) was honored by The American Bar Association Tort Trial and Insurance Practice Section (TIPS) who named a prestigious award after him. The annual award is presented to members who have shown exceptional service and leadership, in remembrance of Carroll s great contributions to the community. This year, Peter J. Neeson received the award as FRVF partners Delos Flint and Norman Sullivan participated in the TIPS meeting to show their continued support of the legacy 18 of an outstanding man.
19 Recognitions: Captain A.J. Gibbs Received the World Trade Center s Bertel Award Dominik Knoll, Bobby C. Brannon, Captain Allen J. Gibbs, Mrs. Shirley Gibbs, and Gary P. LaGrange. FRVF purchased a table for the presentation of the award. Preaus Named Botanical Gardens Board President FRVF attorney Eugene R. Preaus was elected President of the Board of Trustees of the New Orleans Botanical Garden Foundation for a two-year term. Originally known as the City Park Rose Garden, the garden opened in 1936 as New Orleans first public classical garden. It is one of the few remaining examples of public garden design from the Works Progress Administration (WPA) and Art Deco Period. FRVF Sponsored Magic in the Moonlight, an event benefiting the Botanical Gardens. Jennifer Dippel, Maria Elisa Cordero, Todd Crawford, Eve Reardon, Christian Sauce, and BedeMoore Udechukwu attended from FRVF. Rafael C. Goyenche Received Galvez Cup at the 2011 Hispanic Heritage Foundation s Azucar Ball George Fowler, Elena Countess, Rafael C. Goyeneche III(President of the Metroplitan Crime Commission), Carmen Duncan, Rene Guas(President of NOHHF). Goyeneche was awarded the Galvez Cup at this event, which FRVF sponsored. 19 John Bellini (Bell Foods), Christian Chauvin (Bowen Miclette and Britt), Norman Sullivan (FRVF), George Fowler (FRVF), and Jose Suquet (Pan American Life) attended Azucar Ball, which provides scholarships to Latin children.
20 FRVF Comes Together: FRVF New Orleans Christmas Party FRVF Christmas Luncheon FRVF Associate Welcome Party Jacob Gardner, Sofia Bellini, Cristi Chauvin, Louis Llamas, and Michael Harowski FRVF welcomed our new associates. FRVF and the Idea Village FRVF participated in entrepreneur week in New Orleans by joining in on the 'Big Idea Pitch' sponsored by the Idea Village. The event focused on assisting local innovative start-up companies. Pictured here: Pike Barkerding (founder of Bideo), Caitlin Byars (FRVF), Alexis Wiles (TLC Rx), Cassie Preston (Javier Law Firm), and Mark Stich (FRVF).
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NEW YORK CITY FALSE CLAIMS ACT Administrative Code 7-801 through 7-810 * 7-801. Short title. This chapter shall be known as the "New York city false claims act." 7-802. Definitions. For purposes of this