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