Thursday, October 29, 2009

Federal Judge Concludes There Is No Right To Privacy In Emails - Government Does Not Have To Notify Suspect Of Search

A couple of blogs have written about the June 19, 2009 order below relating to the search of a GMAIL account.  The order was entered in the United States District Court for the District of Oregon by Judge Michael W. Mosman.  You can read about it here and here.  The Judge concludes that the government must give notice to an internet service provider when a warrant is issued to search an email account, however, the government does not have to give notice to the account hoder.  The Judge summed it up as follows:

Much of the reluctance to apply traditional notions of third party disclosure to the e-mail context seems to stem from a fundamental misunderstanding of the lack of privacy we all have in our e-mails. Some people seem to think that they are as private as letters, phone calls, or journal entries. The blunt fact is, they are not.
In this third party context, the Fourth Amendment notice requirement is satisfied when a valid warrant is obtained and served on the holder of the property to be seized, the ISP. In this case, the ISPs were served with the warrants to obtain the relevant e-mails. The requirements of the Fourth Amendment were satisfied.

Gmail Order

Florida Supreme Court Stays Execution Of Paul Beasley Johnson

The Florida Supreme Court granted a stay of execution yesterday in the case of Paul Beasley Johnson.  Mr. Johnson was convicted for the 1981 muders "of a cab driver, a good Samaritan who gave Johnson a ride and a deputy in Lakeland." [See Post on Politics]. 

The stay order can be found here.  Prior posts relating to Mr. Johnson's exeuction, previously scheduled for November 4, 2009, can be found here and here.  The court stated "the Court hereby grants a stay of execution in order to consider tpe significant issues raised in Claim 1 of this appeal concerning prosecutodal misconduct. This stay is in effect pending further order of the Court."

The stay was entered by Justice Perry, Justice Labarga, Justice Lewis and Justice Pariente.  Justice Polston dissented.  Chief Justice Quince and Justice Canady were recused.

Articles about the stay can be found in the Miami Herald, the Ledger, the Palm Beach Post and News Chief.

I previously posted the following which will provide additional information:

You can view the docket for Mr. Johnson's 13 appeals to the Florida Supreme Court here.  The lone active appeal can be seen here

Johnson v. State, 438 So. 2D 774 (Fla. 1983): Affirming death sentence.

Johnson v. Wainright, 498 So. 2D 938 (Fla. 1986): Granting petition for habeas corpus and ordering new trial.

Johnson v. State, 608 So. 2d 4 (Fla. 1992): Affirming death sentence.

Johnson v. State, 769 So. 2d 990 (Fla. 2000): Affirming denial of postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

Johnson v. Moore (Fla. 2002): Denying habeas corpus petition.

Third District Reverses $24,170,000.00 Asbestos Judgment Against Honeywell

In Honeywell International, Inc. v. Guilder (3D08-1747), the Third District reversed "judgment awarding Stephen Guilder (“Guilder”) and his children damages in the amount of $24,170,000.00, for injuries sustained from asbestos exposure."  You can read about the decision here.  The court framed the issues as follows:
On appeal, among others errors, Honeywell asserts the trial court erred in: (1) admitting the irrelevant, highly prejudicial letter; (2) excluding Fabre defendants from the verdict form; and (3) awarding Guilder’s children loss of parental consortium. Honeywell further asserts that it is entitled to a setoff reflecting the appropriate percentage of economic damages received from Guilder’s settlement with co-defendants.
On the other hand, Guilder contends that: (1) the letter was relevant, and not unduly prejudicial, or inflammatory; (2) the Fabre defendants were properly excluded from the verdict form; and (3) the loss of parental consortium award was proper. Guilder further contends that Honeywell is not entitled to setoff from any portion of the verdict. We agree with Honeywell.

Wednesday, October 28, 2009

UM Law Professor Files False Light Suit Against

University of Miami School of Law professor Donald Jones filed a three count complaint in the Southern District of Florida against Dead Horse Media, David Lat and David Minkin.  Minkin is the Registrar and Publisher of and Lat is the Founding Editor.  The three counts to the complaint are: (I) False Light, (II) Invasion of Privacy and (III) Copyright Infringment.  The assigned judge is Judge Marcia G. Cooke and Magistrate Judge Ted E. Bandstra.  The complaint is below:

Video Posted For Event Where California Supreme Court Chief Justice "Calls California Government ‘Dysfunctional’

On October 11, 2009, I had a post titled "California Supreme Court Chief Justice "Calls California Government ‘Dysfunctional’."  The video of the speech can now be found here.  Thanks to the Election Law Blog for the link.

Third DCA Quashed Order Allowing Premature Bad Faith Discovery

In Geico General Insurance Company v. Rodriguez (3D09-2444),  granted a petition for certiorari and quashed a trial court order allowing bad faith discovery.
Because such discovery is premature in the current procedural posture of the circuit court case—coverage issues have not yet been determined—the order must be quashed. Discovery relating to the statutory bad faith claim may not be commenced until such time, if ever, as the insured’s coverage and extent of loss have been determined...Discovery relating to a generalized “common law” bad faith claim must also be quashed because of the pendency of the statutory claim and the similarity of the discovery applicable to that claim.

Tuesday, October 27, 2009

Eleventh Circuit Affirms Order Denying Qualified Immunity To Officers That Tasered A Person Not Suspected Of A Crime To Death

A couple of other blogs had posts today about the Eleventh Circuit's published decision in Oliver v. Fiorino (08-15081).  The Federal Civil Practive Bulletin states "The Eleventh Circuit has upheld a district court's denial of summary judgment based on qualified immunity in a case against two police officers alleged to have Tasered a man to death."  How Appealing also has a post about the decision and stated "Eleventh Circuit affirms denial of qualified immunity to two police officers who shocked a man, who was neither accused nor suspected of a crime, with a Taser gun at least eight times over a two minute span, ultimately leading to his death."

Ninth Circuit Grants En Banc Review To Suit Against Insurer Alleging Discrimination In

In another Ninth Circuit case, yesterday the court entered an order granting en banc review in Ojo v. Farmers Group, Inc. (06-55522) and vacating the panel's opinion.  The original panel decision was released on May 12, 2009 an can be found here.  The original panel decision was written by Judge Pregerson with a dissent by Judge Bea.  The two judge majority included Senior Eighth Circuit Judge Myron H. Bright, sitting by designation.  Judge Bright will not participate in the en banc review as Judge Bright is neither an active judge nor a judge of the Ninth Circuit.

According to this Reuters article, the en banc court "will reconsider its decision to let African-American homeowners sue Farmers Group Inc for racial discrimination based on alleged overcharges on property and casualty insurance policies."

The panel decision's majority stated:
Ojo, an African-American resident of Houston, Texas, alleges that Farmers used “a number of undisclosed factors” to compute credit scores and price homeowners’ insurance policies. As a result, “Farmers charged minorities higher premiums for homeowners’ property and casualty insurance than the premiums charged to similarly situated Caucasians.”  Farmers moved to dismiss the Complaint under 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim. The district court granted Farmers’ 12(b)(1) claim on the grounds that it was reverse-preempted by the McCarran-Ferguson Act, 15 U.S.C. §§ 1011 et seq.

In dismissing Ojo’s claim, the district court erred in two respects. First, the district court erroneously read Ojo’s claim as challenging the practice of credit scoring per se. Second, the district court erroneously interpreted Texas state insurance law as permitting disparate impact race discrimination that results from credit scoring, thereby triggering McCarran-Ferguson reverse-preemption.

Ninth Circuit Grants En Banc Review Of CIA Torture Opinion

In Mohamed v. Jeppesen Dataplan, Inc. and United States of America (08-15693), the Ninth Circuit voted to hear the case en banc and vacate the panels decision.  The now vacated opinion was filed on April 28, 2009 and amended on August 31, 2009.  The original opinion can be found here and the vacated opinion can be found here.

CBS 5 has an article here about the order granting en banc review.

Ninth Circuit Affirms Holding That Class Action Waiver Is Unconscionable Under California Law

In Laster v. AT&T Mobility LLC (08-56394), the Ninth Circuit affirmed the District Court's holding that the provision in AT&T's contracts waiving the right to bring a class action unconscionable under California law and that the Federal Arbitration Act does not preempt California's unconscionability law.

Ninth Circuit Issues Published Opinion On ERISA Preemption Of State Laws Preventing Discretionary Clauses In Insurance Policies

In Standard Insurance Co. v. Morrison (08-35246), the Ninth Circuit affirmed the district court's decision that the decision by the Montana Commissioner of Insurance to forbid so called "discretionary clauses" in insurance contracts was not preempted by the Employee Retirement Income Security Act of 1974.  The court stated:
Under the Employee Retirement Income Security Act of 1974 (“ERISA”), insureds who believe they have been wrongfully denied benefits may sue in federal court. The court determines the standard of review by checking for the presence of a discretionary clause. Such a clause might read: “Insurer has full discretion and authority to determine the benefits and amounts payable [as well as] to construe and interpret all terms and provisions of the plan.” If an insurance contract has a discretionary clause, the decisions of the insurance company are reviewed under an abuse of discretion standard. Absent a discretionary clause, review is de novo. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 111 (1989).
The Montana Commissioner of Insurance made it his practice to refuse to approve any form submitted by an insurance company that contained such a discretionary clause.  When he rejected a form submitted by Standard Insurance, the carrier filed suit claiming his decision was preempted by ERISA.
With certain exceptions, ERISA preempts “any and all State laws insofar as they may now or hereafter relate to any [covered] employee benefit plan.” 29 U.S.C. § 1144(a). Relevant here, the so-called savings clause saves from preemption “any law of any State which regulates insurance, banking, or securities.” Id. § 1144(b)(2)(A). Thus, while ERISA has broad preemptive force, its “saving clause then reclaims a substantial amount of ground.” Rush Prudential HMO, Inc. v. Moran, 536 U.S. 355, 364 (2002).
The court then provided the test to be applied:

Here, no one disputes that Commissioner Morrison’s practice “relate[s] to any [covered] employee benefit plan.” 29 U.S.C. § 1144(a). It is thus preempted unless preserved by the savings clause. To fall under the savings clause, a regulation must satisfy a two-part test laid out in Kentucky Ass’n of Health Plans, Inc. v. Miller, 538 U.S. 329, 342 (2003). “First, the state law must be specifically directed toward entities engaged in insurance.” Id. Also, it “must substantially affect the risk pooling arrangement between the insurer and the insured.” Id. We now turn to those two prongs.
The court held:
Accordingly, the Commissioner’s practice is “specifically directed toward entities engaged in insurance,” Kentucky Ass’n, 538 U.S. at 342, and it “substantially affect[s] the risk pooling arrangement between the insurer and the insured,” more so than other laws which have been upheld by theSupreme Court. The practice of disapproving discretionary clauses is thus saved from preemption under 29 U.S.C. § 1144(a) by the savings clause in section 1144(b).
The court then held that the Commissioner's practice is not preempted by ERISA's "exclusive remedial scheme for insureds who have been denied benefits. 29 U.S.C. § 1132(a)."

Finally, the court rejected Standard Insurance's argument "that a state’s forbidding discretionary clauses is inconsistent with the purpose and policy of the ERISA remedial system, which emphasizes a balance between protecting employees’ right to benefits and incentivizing employers to offer benefit plans." 
It relies on the Supreme Court’s decision in Metropolitan Life Insurance Co. v. Glenn, 128 S. Ct. 2343 (2008). There, the Court noted that a conflict of interest exists when the entity determining eligibility for benefits also bears the financial burden of paying for them. Id. at 2348. However, the Court rejected a call to repudiate Firestone Tire and instead retained the abuse-ofdiscretion standard (albeit tempered by consideration of the conflict), saying that it “would [not] overturn Firestone by adopting a rule that in practice could bring about near universal review by judges de novo—i.e., without deference—of the lion’s share of ERISA plan claims denials.” Id. at 2350. “Had Congress intended such system,” the Court continued, “it would not have left to the courts the development of review standards but would have said more on the subject.”
Glenn involved an exercise of the Court’s power to make federal common law, as evidenced by its frequent reference to trust law and the absence of any applicable state insurance regulation. The Court’s refusal to create a system of universal de novo review does not necessarily mean that states are categorically forbidden from issuing insurance regulations with such effect. After all, the states have retained power to institute quite a number of rules affecting ERISA plans pursuant to their savings clause powers. See, e.g., Kentucky Ass’n, 538 U.S. at 329; Rush Prudential, 536 U.S. at 355; UNUM Life, 526 U.S. at 358; Metro. Life, 471 U.S. at 724.
We decline to create an additional exception from the savings clause here. Like the regulatory scheme in Rush Prudential, the Commissioner’s practice “provides no new cause of action under state law and authorizes no new form of ultimate relief.” Id. at 379. The Rush Prudential court emphasized that the scheme in that case “does not enlarge the claim beyond the benefits available” and does not grant relief other than “what ERISA authorizes in a suit for benefits under § 1132(a).” Id. Neither does the Commissioner’s practice.
I am sure a petition for rehearing en banc is forthcoming. 

The first point I noticed, which may be addressed if I looked further into it, is as follows: Page five of the opinion states "the so-called savings clause saves from preemption 'any law of any State which regulates insurance, banking, or securities'.” The issue here was not a law of the state but a practice of the insurance commissioner. The court stated "We will call this his 'practice,' as there is no specific Montana law forbidding discretionary clauses."  The savings clause relates to any law of any state but the court indicates this is not a law.

Supreme Court Denies Stay Of Execution Filed By Reginald Blanton - Texas Executes Blanton Two Hours Later

The United States Supreme Court denied last minute attempts by Reginald Blanton to stay his execution which was scheduled for tonight.  The orders entred by the Court today can be found here and here.  An article in the Dallas Morning News about the Court's denial can be found here.  KVUE has an article here.

CBS 11 has an article here confirming that the execution took place less than two hours after the Supreme Court's orders.

Application For Stay Of Execution Filed By Paul Beasley Johnson In Florida Supreme Court

Paul Beasley Johnson, scheduled to be executed on November 4, 2009, filed an Application for Stay of Execution in the Florida Supreme Court today.  The filing can be found here.

Johnson was convicted for the 1981 muders "of a cab driver, a good Samaritan who gave Johnson a ride and a deputy in Lakeland." [See Post on Politics].

A prior post on this case can be found here.

Eleventh Circuit Affirms Summary Judgment To Plan In ERISA Long Term Disability Case

In Trina Gipson v. Administrative Committee of Delta Airlines, Inc., et al (09-11748), the Eleventh Circuit affirmed the district court's grant of summary judgment to Delta's administrative plan in an ERISA long term disability dispute.

The court outlined the facts as follows:
Gipson worked for Delta as a reservation agent until April 1995, when she requested and received short-term disability benefits due to fibromyalgia, depression, and headaches. In October 1995, she began to receive long-term disability benefits.  In 2001, the Plan transferred review of Gipson’s case to Aetna, which initiated a reassessment and traced Gipson’s medical history. Aetna continued to gather medical information over the next few years until it denied long-term disability benefits in 2004.
The district court granted the Committee’s summary judgment motion. The district court first determined that it would not consider materials not presented to the Committee. The court then concluded that the Committee’s decision was not “wrong,” as Gipson had not shown she was entitled to benefits. The court reviewed the medical records and agreed that Singh’s reports were conclusory and lacked any objective findings to support the conclusion that Gipson was unable to work. The court also concluded that the fact that Gipson received Social Security benefits was not dispositive because the rules applicable to such determinations did not apply to ERISA claims.
In the opinion, the court provided an extensive review of the factual backgroud in the opinion which is not copied here.

The first issue the court addressed was the standard of review:
Where, as here, an ERISA plan endows the plan administrator with discretion to determine eligibility for plan benefits, we review the administrator’s decision under a deferential standard. Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 111, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). We will reverse the plan administrator’s decision only if it was arbitrary and capricious.
The court then affirmed the district court's refusal to consider evidence not presented to the plan administrator:
We agree with the district court that the additional evidence was not properly before it. Our law is clear; even under the first step of the analysis, where the court determines whether the administrator was wrong under a “de novo” standard, “[w]e are limited to the record that was before [the administrator] when it made its decision.” Glazer v. Reliance Standard Life Ins., 524 F.3d 1241, 1247 (11th Cir. 2008). Thus, the district court properly rejected the additional evidence Gipson submitted.
Objective Medical Evidence:
The Committee, faced with conflicting medical evidence, determined that Gipson was able to engage in some level of employment. Gipson has not shown that this determination was arbitrary and capricious. “Under the arbitrary and capricious standard of review, the plan administrator’s decision to deny benefits must be upheld so long as there is a ‘reasonable basis’ for the decision.” Oliver v. Coca Cola Co., 497 F.3d 1181, vacated in part on petition for reh’g, 506 F.3d 1316 (11th Cir. 2007). Here, Selvey and Friedman gave thorough and detailed reasons for their medical opinions. In contrast, Singh’s opinion was conclusory, with no rationale. In light of these conflicting opinions, the Committee’s decision was not arbitrary and capricious.
As to the weight to be given to the treating physician's opinion:
A plan administrator has no obligation to give a treating physician’s opinion more weight. See Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003). Here, the treating physician’s opinion was conclusory and failed to provide any basis for the decision that Gipson was unable to work. In contrast, the opinions of Selvey and Friedman contradicted Singh’s opinion and explained why Gipson was capable of some level of work. Moreover, the other physicians who treated Gipson opined that she required other medication and psychotherapy, all of which Gipson refused. This non-compliance further supports the Committee’s conclusion that benefits were not warranted.
Finally, with regard to a prior payment for the long term disability:
First, Levinson does not stand for the proposition that one payment of benefits forever binds the company. In any event, we find the facts of Levinson distinguishable for the simple reason that, unlike Levinson, the medical evidence in this case was not one-sided; there was ample evidence from which the Committee could conclude Gipson was not disabled. Under the terms of the Plan, Gipson was required to show an ongoing disability. We agree with the Committee and the district court that Gipson failed to meet this burden.

Florida Supreme Court Denies Stay In NCAA Records Appeal

Today, the Florida Supreme Court denied the NCAA's Emergency Motion to Stay.  The order can be found here.  Chief Justice Quince, Justice Pariente, Justice Lewis, Justice Canady and Justice Labarga concurred in the order and there were no dissents.  An article in the Associated Press about the stay denial can be found here [I amended the post to add the AP article].  The AP article begins: "The NCAA's bid to delay a court order to release its records on academic cheating at Florida State has been rejected by the Florida Supreme Court."

You can also view the NCAA's jurisdictional brief here and the appendix here.

This case was previously discussed on this blog herehereherehere, here and here.

*Disclaimer: GrayRobinson is involved in this matter.

Eleventh Circuit Dismisses Discrimination Case Against The University of Florida As Moot

In Beta Upsilon Chi Upsilon v. J. Bernard Machen,  in his official capacity as President of the University of Florida, et al. (08-13332), the Eleventh Circuit dismissed an appeal as moot and ordered the trial court to dismiss the case. 
BYX is a national fraternity founded in 1985. It has twenty-two chapters in nine states. According to its constitution, it “exists for the purpose of establishing brotherhood and unity among college men based on the common bond of Jesus Christ.” BYX espouses a strict approach to the Christian faith, and membership in the fraternity is contingent upon what the fraternity deems “a credible profession of faith in Jesus Christ.” This requires agreement not only with the traditional core Christian beliefs and values contained in such ancient expressions as the Nicene Creed, but adherence to a demanding view of the faith. In its doctrinal statement, BYX explains that members must “believe that the Bible is God’s written revelation to man, that it is inspired, authoritative, and without error in the original manuscripts.” Accordingly, BYX bars from membership non-Christians, Roman Catholics, and adherents to the traditional Christian orthodoxy taught by the mainline Protestant denominations.


The University of Florida permits and encourages student organizations to undergo its registration process and become Registered Student Organizations (“RSOs”)....UF requires that RSOs abide by the University’s nondiscrimination policy, as derived from UF Regulation 6C1-1.006(1) available at (the “Policy” or “Handbook Policy”). The Policy states that UF “is committed to non-discrimination with respect to race, creed, color, religion, age, disability, sex, sexual orientation, marital status,  national origin, political opinions or affiliations, and veteran status” and states that “[t]his commitment applies in all areas,” including “to students.”


BYX filed a motion for preliminary injunction. In its motion, BYX claimed that because UF had denied its chapter RSO status during Fall Rush, it was unable to advertise or host any of its rush meetings or activities on campus. As a result, the chapter was only able to recruit three new pledges, whereas other Christian fraternities were able to recruit substantially greater numbers.


On May 29, 2008, over seven months after BYX filed its motion for a preliminary injunction, the district court entered an order denying the motion. In its order, the court rejected BYX’s expressive association and viewpoint discrimination claims. The court found no evidence that the Handbook Policy would “significantly affect BYX’s ability to express itself—publicly or privately.” Machen, 559 F. Supp. 2d at 1278.


On June 6, 2008, BYX filed a notice of appeal challenging the district court’s May 29 order, and moved this court for an injunction pending appeal. On July 30, a panel of this court entered an order granting BYX’s motion and an injunction issued...The panel issued the injunction after considering four factors: (1) whether the movant was likely to prevail on the merits of its appeal; (2) whether, if the injunction did not issue, the movant would suffer irreparable harm; (3) whether, if the injunction issued, any other party would suffer substantial harm; and (4) whether an injunction would serve the public interest.


On January 15, 2009, after we heard oral argument, the University announced that it had modified the Handbook Policy...[and] moved this court to dismiss this appeal for mootness.


The Constitution confines the jurisdiction of the federal courts to actual “Cases” or “Controversies.” U.S. Const. art. III, § 2, cl. 1. This prerequisite must be satisfied at each stage of the litigation...The law is clear that if, pending an appeal, events transpire that make it impossible for this court to provide meaningful relief, the matter is no longer justiciable...This is so even if, as here, the court has heard oral argument and has taken the case under advisement.


BYX grounds its argument in the “voluntary cessation” doctrine, which provides that the “[m]ere voluntary cessation of allegedly illegal conduct does not moot a case.”...The University has modified the Policy in the CSAI Handbook, registered BYX’s chapter, and stated its intention to adhere to its modified policies. BYX speculates that UF amended the Policy as a ploy to avoid an adverse ruling, and UF may reinstate its former policy and strip BYX of its RSO status if the court dismisses the appeal. BYX has failed to present any affirmative evidence to support this position, and we are not persuaded by such speculation. We hold that BYX cannot overcome the presumption that the “objectionable behavior will not recur.” Troiano, 382 F.3d at 1283.


In cases where government policies have been challenged, the Supreme Court has held almost uniformly that voluntary cessation of the challenged behavior moots the claim.


Our consideration of this case is at an end. Because the relief BYX sought has now been obtained, we lack a live controversy. The University’s motion to dismiss this appeal for mootness is accordingly granted. The order of the district court denying BYX’s motion for a preliminary injunction is vacated, the case is remanded, and the district court, on receipt of our mandate, shall dismiss the case as moot. See United States v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950).

Judgment Against Acutane Manufacturer Relating To Label Reversed For Entry Of Directed Verdict

In Hoffman-La Roche Inc. and Roche Laboratories Inc. (1D08-2032), the First District reversed the trial court's denial of a motion for directed verdict after a judgment was entered faulting the manufacturer for putting "Accutane on the market with an inadequate warning to Appellee’s physicians about the risk of developing inflammatory bowel disease."

The court stated:
As a general rule, drug companies have the duty to warn of a drug’s dangerous side effects; however, the duty to warn is directed to physicians rather than patients under the “learned intermediary” doctrine...Thus, the duty of a drug manufacturer to warn of the dangers involved in the use of a drug is satisfied if it gives an adequate warning to the physician who prescribes the drug.
While Appellee presented testimony that the warning label was inadequate to warn physicians that Accutane use could lead to IBD, Dr. Fisher, the prescribing physician, testified that he understood the warning label to mean that there was at least a possibility of a causal relationship between Accutane and IBD. He testified that he would still be willing to prescribe Accutane to his patients even if there was evidence showing that it could cause IBD in rare cases. He also testified that even if the warning label contained all of the information suggested by Appellee’s expert, he would still have prescribed the medication for Appellee. Thus, any inadequacies in Accutane’s warning label could not have been the proximate cause of Appellee’s injury because Dr. Fisher understood that there was a possibility that use of the drug could lead to Appellee developing IBD and he made an informed decision to prescribe the drug for Appellee despite this risk. Because Appellee presented no evidence to establish proximate cause, the trial court erred in denying Appellants’ motion for a directed verdict.
The emphasis is mine.

Monday, October 26, 2009

Appeal Dismissed Because The Notice Of Appeal Was Filed One Date Late

In Michael Van Vliet v. Nurse Andrea Garrett (08-2035), the Eighth Circuit dismissed an appeal because the notice was filed one day late.  The court stated:
The District Court entered the order denying Van Vliet’s motion for reconsideration on March 17, 2008. Van Vliet filed his notice of appeal on April 17, 2008, thirty-one days later. We dismiss the appeal for lack of jurisdiction. See Fed. R. App. P. 4(a)(1)(A) (requiring parties to file notice of appeal within 30 days in most civil cases)

Florida Supreme Court Strikes Jurisdictional Brief For Failing To Comply With Florida Rule of Appellate Procedure 9.210

Today, the Florida Supreme Court entered an order striking a jurisdictional brief for failing to comply with Florida Rule of Appellate Procedure 9.210.  Based upon the language of the order, it appears the brief was filed today, however, it exceeded ten pages in length.  The order is below:

Order - Brief Stricken

Notably, the Court's docket entry for the case does not reflect the entry of an order relating to a jurisdictional brief and indicates a pro hac motion was denied.  The docket states:
Linda J. Salfrank's motion for leave to appear pro hac vice, which was filed with this Court on October 22, 2009, does not comply with Florida Rule of Judicial Administration 2.510 and is hereby denied without prejudice to re-file in compliance with said rule. The required contents of the verified motion and the verified form for the motion are contained in rule 2.510. Counsel is expected to include all components in the amended motion and is further expected to answer all questions as set forth in said rule (with the exception of the social security number).
The basis for denying the pro hac motion also appears on the docket and states:
The Florida Supreme Court's docket for this case can be found here.  This case was previously discussed on this blog hereherehere, here and here.

*Disclaimer: GrayRobinson is involved in this matter.

Eleventh Circuit Affirms Dismissal Of § 1957(a) Prosecution Against Kuehne - Payment Was For Constitutionally Protected Legal Fees

In U.S. v. Gloria Flores Velez (09-10199), the Eleventh Circuit affirmed the district court's opinion and held "The district court was eminently correct in holding that Defendants are not subject to criminal prosecution under § 1957(a), because the plain language of § 1957(f)(1) clearly exempts criminally derived proceeds used to secure legal representation to which an accused is entitled under the Sixth Amendment."
The Government charged Defendants with money laundering in violation of 18 U.S.C. §§ 1956(h) and 1957. The district court dismissed Count One on the ground 1 that Defendants are exempt from criminal prosecution under § 1957(a) because the plain language of § 1957(f)(1) excludes from the statute’s scope “any transaction necessary to preserve a person’s right to representation as guaranteed by the sixth amendment to the Constitution.” The parties do not dispute that the money allegedly laundered was used for the payment of legal fees. This appeal presents an issue of first impression in this circuit regarding the meaning of the exemption in § 1957(f)(1).
Kuehne, a Miami attorney, was hired by the Miami-based criminal defense team of Fabio Ochoa, an accused Colombian drug leader, to review the source of funds to be used to pay Ochoa’s legal defense fees in the United States. The purpose of the review was to determine whether the funds to be used for Ochoa’s defense were derived from criminal proceeds. Kuehne hired Colombian attorney Saldarriaga and Colombian accountant Velez to assist him.  After conducting his investigation, Kuehne issued “opinion letters” in which he concluded that several monetary transfers from Ochoa to him, as an intermediary, were not comprised of proceeds of criminally derived property. Kuehne then transferred the fees, totaling approximately $5.3 million, to Ochoa’s defense team. The Government alleged that Kuehne and his co-defendants supported their conclusion that the funds were untainted with false documents and statements, knowing that the funds were criminally derived and intending to conceal their true source.
The court then cited to a brief filed in the United States Supreme Court in 1989 by the United States Solicitor General which stated:
The United States Solicitor General explained the distinction between civil forfeiture and criminal penalties in his 1989 brief to the Supreme Court in United States v. Monsanto, 491 U.S. 600 (1989), a companion case to Caplin & Drysdale.  The brief states explicitly that, although the criminal defense bar had urged Congress “to exclude from [civil] forfeiture those assets that the defendant wants to use to pay an attorney, Congress ha[d] declined to do so.” United States v. Monsanto, Gov’t Br., 1989 WL 1115135, at *33-34.
In this statute, Congress included a provision exempting from forfeiture money used to pay criminal defense fees and, therefore, the district court properly dismissed the count.

Motion For Expedited Review Denied In NCAA Public Records Case

The Florida Supreme Court entered an order today denying a motion for expedited review filed by the NCAA.  The order can be found at this link.  This case was previously discussed on this blog herehere, here and here

*Disclaimer: GrayRobinson is involved in this matter.

Saturday, October 24, 2009

Judge Gives Florida Supreme Court Until Wednesday To Decide On Stay In NCAA Case

The Circuit Court Judge handling the NCAA public records case previously discussed here, here and here has given the Florida Supreme Court until Wednesday to determine whether they will stay the case or he will order the records released effectively mooting the stay issue.  On Friday, Leon County Circuit Court Judge John Cooper said "The Florida Supreme Court should at least be put on notice, for a reasonable portion of time, we either grant this stay or deny it" according to an article on the Florida Capital News website that can be found here.  Based upon the quote, it seems clear the Judge was not trying to impose a deadline upon the supreme court but allowing a delay in the trial court proceeding to give the Florida Supreme Court notice and time to consider the stay issue.  Of course, the Florida Supreme Court could extend the "deadline" by temporarily staying the release of the names pending further order.  You can view the NCAA's notice of the deadline filed in the Florida Supreme Court here.

The United States Supreme Court, first Justice Kennedy [see here] and then the entire Supreme Court [see here], granted a stay in a public records dispute arising out of the Ninth Circuit this week.  The presumed basis for the stay in that case is the same as one would be here, once the names are out the stay is irrelevant.  The Supreme Court acted in that case even prior to the Ninth Circuit's ruling [see here].  It will be interesting to see if that decision has any impact here, which we will likely never know.

*Disclaimer: GrayRobinson is involved in this matter.

Friday, October 23, 2009

"Motion For A Honest And Honorable Court System"

The interesting motion below was filed "pursuant to the law of, what goes around comes around.  Judge Bolton, I just read your Order and I am very disappointed in the fact that a brainless coward like you is a federal judge." 

S.D. Ariz.

Third District Denies Certiorari In PIP Case Relating To 627.736(4)(b)

In Partners in Health Chiropractic, a/a/o Neocles Lebrun v. United Automobile Insurance Company (3D09-1418), the Third District denied a petition for certiorari and summarized as follows:
To summarize:
• a claim may be rejected more than thirty days after submission to the insurer notwithstanding being “overdue”;

• where no payment whatsoever has been made and the insurer rejects all claims or bills from a particular provider or treating physician as being unreasonable, unrelated or, unnecessary, section 627.736(4)(b) applies;

• where some but not all claims or bills from a particular provider or treating physician are being rejected or reduced as unreasonable, unrelated, or unnecessary, section 627.736(4)(b) likewise applies;

• Section 627.736(4)(b) requires only that an insurer have reasonable proof that a rejected claim or claims (or bill or bills) are unreasonable, unrelated, or unnecessary; while a section 627.736(7)(a) report may be utilized for this purpose, such a report is not required for this purpose;

• where an insurer withdraws (that is, terminates) payments being made to a treating physician or withdraws or terminates authorization for further treatment by a treating physician, a section 627.736(7)(a) report must first be obtained;

• such a section 627.736(7)(a) report does not have to be predicated on either a physical examination by the reporting physician or on a physical examination conducted on behalf of the insurer (an IME) but may be premised on review of the records of the insured’s treating physician.

In this case, the insurer made no payments, claiming that no treatment was reasonable, related or necessary. The Appellate Division therefore correctly concluded that this action was governed by section 627.736(4)(b) and that the trial court erred in refusing to consider either the affidavit or the report submitted by United Auto in support of its denial of Partners in Health’s claim. Although United Auto was not obligated to provide a section 627.736 (7)(a) report to support its rejection of Partners in Health’s claim, the Appellate Division was correct in determining that the report was valid even though not based on a physical examination conducted by the reporting physician.

For these reasons, and those stated in this opinion, the petition is denied.

Examination Under Oath (EUO) Is A Condition Precedent To Assignee's Recovery - Question Certified To Florida Supreme Court

[UPDATE: The Court withdrew this opinion in an en banc opinion which was discussed HERE.]

In Shaw v. State Farm Fire and Casualty Company (5D07-3136), a divided panel of the Fifth District certified a question to the Florida Supreme Court and resolved "whether an Examination Under Oath (EUO) clause in an insurance policy is binding on an assignee of the No-Fault benefits and the cause of action to recover those benefits, thereby prohibiting a noncompliant assignee from making a claim or seeking payment under the policy. The clause provides in pertinent part that 'any person or organization making claim or seeking payment . . . must, at our option, submit to an examination under oath, provide a statement under oath, or do both, as reasonably often as we require.' (Emphasis omitted). The trial court held that this EUO provision is a condition precedent with which the assignee must comply in order to make a claim and file suit. Because the assignee refused to comply, the trial court rendered summary judgment in favor of the insurer. We affirm."

The court continued:
The courts have consistently held that an EUO provision in an insurance policy is a condition precedent that must be complied with in order to maintain an action to recover policy benefits...Courts in other jurisdictions also interpret EUO provisions to be conditions precedent to making a claim and filing suit to recover the claim under the policy.
The dissent contends that because the EUO provision is included in a section of the policy captioned “Reporting A Claim - Insured’s Duties,” only the insured is required to attend an EUO. We note that is an argument that the Appellants did not assert. In any event, the dissent further contends that, therefore, the assignees must specifically agree to be bound by that duty or take an assignment of the entire policy. We disagree. The plain language of the EUO provision states that “any person or organization making claim or seeking payment” may be required to attend the examination. “An assignment is a transfer of all the interests and rights to the thing assigned.”
The majority certified the following to the Florida Supreme Court:
We certify to the Florida Supreme Court the following question of great public importance:

The dissent begins:
The majority is wrong for two reasons. First, under the law of assignments, State Farm, as obligor, does not have the power to create conditions with which an assignee of the obligee's right to payment must comply. Second, even if such were possible, the language of the policy does not accomplish what State Farm claims.

My principal view of this case is based on my understanding of the law of assignments. If my understanding is wrong, then perhaps my conclusion is wrong, but to borrow from Gertrude Stein, "If not, not."

Wisconsin Supreme Court Involved In Heated Post-Caperton Recusal Dispute

The Justices on the Wisconsin Supreme Court are involved in an interesting post-Caperton recusal challenge.  An article can be found in the Milwaukee Journal Sentinel.  Prior Caperton posts can be found here and here.  The article starts "Justices on the deeply divided state Supreme Court hurled dueling statements this week, with one contingent accusing the other of delaying decisions on how to handle requests to force the newest member of the court off criminal cases."  Thanks to the Election Law Blog for the link to the Journal Sentinel article. 

The Wisconsin Supreme Court's website provides the briefs and the issue.

In re creation of rules for recusal when a party or lawyer in a case made contribution effecting a judicial campaign filed 06/20/08 by Melanie G. Ramey, President on behalf of the League of Women Voters of Wisconsin Education Fund, Inc.

Responses to petitions 08-16, 08-25 and 09-10:

10/28/09 at 9:30 a.m. in the Supreme Court Hearing Room
The court's agenda for October 28, 2009 is below:

10-28-2009 Agenda

Indiana Supreme Court Affirms Use Of MySpace Page As Evidence In Murder Conviction

In Ian Clark v. State of Indiana (No. 43S00-0810-CR-575), the Indiana Supreme Court affirmed a murder conviction and reviewed whether the defendant's MySpace page was admissible evidence.  The court stated:
A jury found appellant Ian J. Clark guilty of murdering a two-year-old left in his care, and it recommended life in prison without parole, which the trial court imposed. Many of the grounds he urges as reasons for reversal were not preserved at trial. One of his trial objections does pose a novel question: should the trial court have permitted the State to offer into evidence Clark’s entry from the social networking website MySpace? We hold that this electronic evidence was admissible, and we affirm Clark’s conviction and sentence.

Florida Supreme Court Agrees To Hear Case Re: Whether The Court Or Arbitrator Resolve Public Policy Challenges

The Florida Supreme Court entered an order this week agreeing to review the Second District's decision in Gessa v. Manor Care of Florida, Inc. (2D07-1928).  The Florida Supreme Court's order accepting the case can be found here and the Florida Supreme Court case is styled Angela I. Gessa, etc. v. Manor Care of Florida, Inc., et al. (SC09-768).   Chief Justice Quince, Justice Pariente, Justice Lewis and Justice Canady concurred.  Justice Perry concurred in accepting the case but would do so without oral argument.  The Petitioner's Jurisdictional Brief can be found here and the Respondent's Brief on Jurisdiction can be found here.  Both the Petitioner and the Respondent agreed the court should accept the case.

The Responsent's Brief on Jurisdiction states:
Consistent with these federal decisions, the Second District refused to address Gessa’s remedial limitations challenge and instead left the issue for the arbitrator. While the court did not explain why it was sending the case to arbitration without resolving Gessa’s public policy challenge, and though the court stated in a footnote it was not deciding whether the arbitrator or court should address this issue in the first instance, the result left the public policy challenge for the arbitrator to resolve, contrary to Bryant, SA-PG-Ocala, and Linton.

Given the result below, the Second District’s decision in Gessa conflicts with the decisions in Bryant, SA-PG-Ocala, and Linton. A trial court in the Second District sends a case to arbitration without addressing the enforceability of an agreement’s remedial limitations, while trial courts in the First, Fourth, and Fifth District’s resolve the enforceability issue themselves. Manor Care thus agrees the Court should accept jurisdiction to resolve the important issue of whether a public policy challenge to an arbitration agreement’s remedial limitations is for the court or the arbitrator to decide.
The Petitioner's Jurisdictional Brief states:
The Florida Constitution grants this Court discretionary jurisdiction to review a district court decision that expressly and directly conflicts with a decision of another district court. Art. V, §3(b)(3), Fla. Const. (1980). Ms. Gessa seeks further review of the decision based on the Second District’s express and direct conflict with the Fourth District’s decision in Alterra Healthcare Corporation v. Bryant, 937 So.2d 263 (Fla. 4th DCA 2006), with the First District’s opinion in Alterra v. Linton, 953 So.2d 574, 576 (Fla. 1st DCA 2007) and with the Fifth District’s decision in SA-PG-Ocala, LLC v. Stokes, 935 So.2d 1242 (Fla. 5th DCA 2006), and numerous other decisions cited throughout this brief.
The Gessa decision is in direct and express conflict with decisions from the First, Fourth and Fifth Districts on the issue of whether a Court should decide enforceability issues of an arbitration agreement under the first prong of Seifert v. v. U.S. Home Corp., 750 So.2d 633 (Fla. 1999), or whether the arbitrator should decide that issue, where only the arbitration provisions (rather than the entire admissions agreement)is challenged as being void as violative of public policy. The Gessa decision is also in conflict with decisions from the other districts on the substantive issue of whether limitations of liability provisions which are, in fact, violative of public policy are severable, and if so, by whom? —the court, or the arbitrator. These multiple conflicts justify resolution by this Court by its exercise of discretionary conflicts jurisdiction. Further, an opinion from this Court explaining the applicability of this Court’s opinion in Cardegna v. Buckeye Check Cashing, Inc., 930 So.2d 610 (Fla. 2006) to the instant case would be instructive, where, as here, the arbitration agreement was a stand-alone document, but part of a packet of numerous forms which accompanied Ms. Gessa’s admissions agreement, and Ms. Gessa sought only to avoid the arbitration agreement, not the admissions contract.

"Ninth Circuit Creates Split Re Meaning of 'Actual Damages' in 11 U.S.C. s. 362(k)(1)"

Split Circuits has a post about a recent Ninth Circuit decision creating a circuit split regarding the meaning of actual damages in  11 U.S.C. s. 362(k)(1).  The post is below:

Ninth Circuit Creates Split Re Meaning of "Actual Damages" in 11 U.S.C. s. 362(k)(1)

Per Sternberg v. Johnston, --- F.3d ----, 2009 WL 3381162 (9th Cir. Oct. 22, 2009):

Sternberg also argues that the bankruptcy court erred in calculating Johnston's damages because it awarded attorney fees not only for the work associated with remedying the stay violation but also for the subsequent adversary proceeding in which Johnston sought to collect damages for the stay violation. We agree. . . . The relevant statute, 11 U.S.C. § 362(k)(1), states that “an individual injured by any willful violation of a stay ... shall recover actual damages, including costs and attorneys' fees, and, in appropriate circumstances, may recover punitive damages.” . . .

[W]e conclude that the plain meaning of “actual damages” points to a different result. The dictionary defines “actual damages” as “[a]n amount awarded ... to compensate for a proven injury or loss; damages that repay actual losses.” BLACK'S LAW DICTIONARY 416 (8th ed.2004). Following this definition, the proven injury is the injury resulting from the stay violation itself. Once the violation has ended, any fees the debtor incurs after that point in pursuit of a damage award would not be to compensate for “actual damages” under § 362(k)(1).
We recognize that the Fifth Circuit appears to have held to the contrary: “The lower courts in our Circuit have concluded that it is proper to award attorney's fees that were incurred prosecuting a section 362(k) claim [,]” and “[w]e adopt the same reading of section 362(k) and therefore agree.” Young v. Repine (In re Repine), 536 F.3d 512, 522 (5th Cir.2008). We do not create a circuit split lightly. But the above-quoted language is all the court said on the issue. Without more, we are hard-pressed to find this decision persuasive.

Thursday, October 22, 2009

Fourth District Concludes Developer Failed To Comply With The Interstate Land Sales Full Disclosure Act

In Home Devco/Tivoli Isles, LLC v. Silver (4D08-3500), the Fourth District affirmed the trial court's conclusion that the developer failed to comply with the disclosure requirements of the Interstate Land Sales Full Disclosure Act (ILSA), 15 U.S.C. § 1701 et seq.
Congress passed ILSA in 1968 to protect purchasers against unscrupulous sales of undeveloped home sites, frequently involving out of state sales of land purportedly suitable for development but actually under water or useful only for grazing...Among other things, ILSA makes it unlawful to sell or lease non-exempt lots without furnishing the purchaser or lessee with a printed property report meeting statutory standards in advance of the signing of the contract to purchase or lease the property. 15 U.S.C. § 1703 (a)(1)(B). Failure to provide the report as required permits the buyer or lessee to revoke the contract at any time within two years of the date of signing the contract. 15 U.S.C. § 1703 (c). In the event of revocation, the buyer or lessee is entitled to refund of any deposits paid. 15 U.S.C. § 1703(e). ILSA provides an exemption for “the sale or lease of land under a contract obligating the seller or lessor to erect such a building thereon within a period of two years.” 15 U.S.C. § 1702(a)(2). Entitlement to this “two-year” exemption is the crux of this appeal.
The developer relies on the above emphasized clause of the guidelines to argue that it based its contractual exceptions to the two-year completion requirement only on reasons which were beyond its control. However, the contract contained overbroad, catch-all language which sought an exception for any matters beyond its control, many of which would not necessarily rise to contract defenses under Florida law. The majority view appears to be that by seeking such a broad exception to the “two-year rule” the developer loses its exemption.
We follow the reasoning in Stein that broad clauses of this type go well beyond recognized defenses. We conclude that the developer’s sales contract in this case did not contain an unconditional commitment to complete construction within two years. The developer thus was not exempt from the provisions of ILSA.

Ninth Circuit Denies En Banc Review of Arizona Private School Scholarship Case

How Appealing has a post about the Ninth Circuit's decision not to hear en banc the case relating to Arizona's private school tax credit.  The post is below:
Eight active judges on the Ninth Circuit note their dissent from today's order denying rehearing en banc of a decision reinstating a lawsuit alleging that Arizona's private school scholarship tax credit program, as applied, violates the Establishment Clause: You can access today's order denying rehearing en banc, the concurrences in that order, and the dissent from that order at this link. It is interesting to note that one of the judges who jointly authored the main concurrence is a senior Circuit Judge who served on the original three-judge panel but, due to her senior status, does not have the ability to vote for or against rehearing en banc.
My earlier coverage of the three-judge panel's ruling, from April 2009, can be accessed here.
In coverage of today's order, The East Valley Tribune has a news update headlined "Private school tax credits dealt setback."
 And The Associated Press reports that "Court challenge to state tax credit stands."

More On The Supreme Court Stay In Gay Rights Case

Earlier this week I had a post about Justice Kennedy granting a stay in DOE #1, JOHN, ET AL. V. REED, WA SEC. OF STATE, ET AL.  You can see the post titled "Justice Kennedy Grants Stay In Gay Rights Case" and Justice Kennedy's October 19, 2009 order here.  On October 20, 2009, the Court entered an orde staying the case, which Justice Stevens would have denied.  The October 20, 2009 order is below:

On October 22, 2009, a panel of the Ninth Circuit issued an opinion reversing the district court's decision.  That panel decision can be found here.  Of course, the panel's decision is stayed.

Order Requiring NCAA To Produce Records Under Florida's Public Disclosure Laws Appealed To Florida Supreme Court

The NCAA has appealed the First District's decision in National Collegiate Athletic Association v. The Associated Press; Cape etc., et al. (1D09-4385) to the Florida Supreme Court.  The First District's decision affirmed  the trial court's order requiring the NCAA to disclose documents relating to the academic scandal at FSU.  Prior posts about this case can be found here and here.  The Florida Supreme Court entered a high profile order and the documents filed in the case can be found at the links below.


*Disclaimer: GrayRobinson is involved in this matter.

Statutory Changes To Deadlines In Federal Courts

Below are the statutory changes to deadlines in the Federal courts.  The rules are effective December 1, 2009.  Thanks to the South Florida Lawyers blog.

Wednesday, October 21, 2009

Lead Anti-Obama "Birther Movement" Attorney Sanctioned And, Apparently A Fan Of Pain, Has Not Given Up - Appeals Order To Eleventh Circuit

A Rancho Santa Margarita-based attorney leading the so- called "birther movement," which seeks to prove President Barack Obama was not born in the United States, was sanctioned Tuesday by a federal judge who ordered her to pay a $20,000 fine for "frivolous" legal attempts to keep her case alive in his Georgia courtroom....“The Court finds that counsel’s conduct was willful and not merely negligent. It demonstrates bad faith on her part. As an attorney, she is deemed to have known better. She owed a duty to follow the rules and to respect the Court. Counsel’s pattern of conduct conclusively establishes that she did not mistakenly violate a provision of law. She knowingly violated Rule 11. Her response to the Court’s show cause order is breathtaking in its arrogance and borders on delusional.”
See the Los Angeles Wave article quoted above here.  See other articles hereherehereherehereherehere and  here.   Below, is the Court's order.

The attorney has now filed an extensive notice of appeal stating "Judge Land’s actions that amounted to misstating or misrepresenting ninety percent of what was presented in the pleadings and argument, completely ignoring ninety percent of the argument and facts, making extremely rude and demeaning remarks, showing bias; taken together, appear to be designed to silence her and, intimidate her and above all, punish her for what the Court perceived as political rather than “core” constitutional questions. It appears to be a thinly veiled threat to other attorneys not to pursue similar Constitutional issues, which will have a chilling effect on the ability of the public to use Federal Court system to uphold their constitutional rights. Judge Land’s remarks amounted to nothing short of political lynching, which turned into feast and celebration by the media mob."  See articles herehere  and here.  The notice of appeal is below:

Notice of Appeal