Tuesday, November 10, 2015

DOJ reveals in new indictment that hacking schemes were 'breathtaking in size and scope' targeted 12 companies, obtained data on 100 million

"Expanding charges in a case against two Israeli men and a U.S. citizen, a federal prosecutor on Tuesday unsealed a superseding indictment (PDF) and accused them of playing a role in a sprawling years-long series of hacking schemes that stole personal data for 100 million people and targeted as many as a dozen companies"  More.

Originally posted in ABA Journal News, Nov. 10, 2015 by Martha Neil.

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Saturday, October 24, 2015

Easley appointed President of the Rosemary Barkett Appellate Inn of Court

Congratulations to Dorothy F. Easley on her recent appointment as President of the Rosemary Barkett Appellate Inn of Court, 2015-16. The RBIC, named in honor of former Florida Supreme Court Justice and Eleventh Circuit Judge Rosemary Barkett, was established by Florida Third District Court of Appeal Judge Vance Salter in 2011. It serves to advance current appellate issues, professionalism, ethics, and mentoring.

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Friday, October 9, 2015

Consumer rights, constitutional law, and grilled salmon topped with freshly grated wasabi-ginger-honey paste

Third Circuit:
Witasick v. Minn. Mut. Life Ins, Co.
Court: U.S. Court of Appeals for the Third Circuit Docket: 14-1150 Opinion Date: October 1, 2015
Areas of Law: Contracts, Insurance Law, White Collar Crime
Witasick was covered by a disability policy and a business overhead expense policy. His claims against both policies were honored. A dispute arose concerning coverage of some claimed business expenses. After years of negotiation, the parties settled: the insurer agreed to pay more than $4 million and Witasick agreed to release known, unknown, and future claims. The settlement contained a covenant not to sue, based on “any conduct prior to the date the Parties sign this document, or which is related to, or arises out of” the policies. During negotiations, the U.S. Government notified Witasick that he was the target of a grand jury investigation related to fraud and business expense claims on his income tax returns. Witasick was indicted in 2007. To support its charge of mail fraud, the government relied on information and documents Witasick had submitted to the insurer. An employee of the insurer testified before the Grand Jury and at Witasick’s trial. Witasick was convicted on most counts, but acquitted of mail fraud, and was sentenced to 15 months’ imprisonment. In 2011, Witasick sued the insurer based on the policies and cooperation with the prosecution. The Third Circuit affirmed dismissal, finding the claims prohibited by the settlement agreement.

Fifth Circuit:
Ferguson v. Bank of New York Mellon
Docket: 14-20585             Opinion Date: October 1, 2015
Areas of Law: Banking, Real Estate & Property Law
 After plaintiffs defaulted on their residential mortgage loan, they sought to enjoin BNY from foreclosing by claiming that the assignment of the deed of trust (DOT) to BNY was void. Plaintiffs also filed a false-lien claim under Texas Civil Practice and Remedies Code 12.002 against BNY and MERS. The district court granted BNY's motion to dismiss. The court concluded that plaintiffs lack standing to challenge BNY’s efforts to foreclose on the ground that MERS’s assignment to BNY was void for violating the PSA. Because plaintiffs have failed to plead facts showing BNY’s lien was in fact fraudulent, plaintiffs have failed to state a false lien claim under Texas Civil Practice and Remedies Code 12.002. Accordingly, the court affirmed the district court's judgment.

Fifth Circuit:
Cole v. Hunter
Court: U.S. Court of Appeals for the Fifth Circuit Docket: 14-10228, Docket: 15-10045           Opinion Date: September 25, 2015
Areas of Law: Civil Rights, Constitutional Law
After Ryan Cole, a seventeen-year-old, was severely injured in an armed encounter with police, he and his parents filed suit against the officers for, among other things, use of excessive force in violation of Ryan's Fourth Amendment rights. The district court denied Defendant Carson’s motion to dismiss and Defendants Hunter and Cassidy’s motion for summary judgment, rejecting the officers’ immunity defense at the motion stage of the case. Under plaintiffs’ version of the facts, the court concluded that it was objectively unreasonable under clearly established law to shoot Ryan. Consequently, the fact disputes identified by the district court - including the central issue of whether Ryan pointed his gun at an officer - are material, and the court dismissed the appeal for lack of jurisdiction. However, the court affirmed the district court’s refusal to dismiss the due process claim relating to fabrication of evidence. Finally, the court concluded that the district court erred in allowing all other claims to proceed.

Seventh Circuit:
Defender Sec. Co. v. First Mercury Ins. Co.
Court: U.S. Court of Appeals for the Seventh Circuit Docket: 14-1805            Opinion Date: September 29, 2015
Areas of Law: Communications Law, Consumer Law, Contracts, Insurance Law
Brown filed a class action complaint, alleging that she contacted Defender by telephone in response to its advertisement for a home security system; that, during several calls, she provided Defender with personal information; and that Defender recorded those calls without her permission and without notifying her of the recording. Brown claimed violations of California Penal Code 632, which prohibits the recording of confidential telephone communications without the consent of all parties. Defender owned a commercial general liability insurance policy issued by First Mercury, covering “personal injury” and “advertising injury.” In a separate definitions section, the policy defined both “advertising injuries” and “personal injuries” as those “arising out of … [o]ral or written publication of material that violates a person’s right of privacy.” The parties eventually reached a settlement. Defender provided First Mercury with timely notice of the Brown suit. First Mercury denied coverage and refused to defend. The Seventh Circuit affirmed dismissal of Defender’s suit against First Mercury. Defender’s Policy requires “publication,” which was neither alleged nor proven.

Ninth Circuit:
Bradford v. Scherschligt
Court: U.S. Court of Appeals for the Ninth Circuit Docket: 14-35651              Opinion Date: September 25, 2015
Areas of Law: Civil Rights, Constitutional Law
After plaintiff served his full ten-year sentence, the State of Washington vacated his residential burglary and rape conviction based largely on newly-available DNA testing. Plaintiff subsequently filed suit under 42 U.S.C. 1983 against defendant, a police detective, alleging the deliberate fabrication of evidence. The district court found that plaintiff's claim was time-barred and granted summary judgment for defendant. The court held that plaintiff’s claim did not accrue until he was acquitted of all charges on February 10, 2010. Therefore, the court concluded that plaintiff filed the underlying action within the three-year statute of limitations period, and it was error to dismiss his deliberate fabrication of evidence claim as time-barred. The court declined to address defendant’s qualified immunity defense, and remanded for the district court to consider it in the first instance.

11th Circuit:
Bankruptcy -- Confirmation -- Chapter 13 plan -- Modification -- Modified plan which proposes plan payments to creditors that escalate over time, with two step-up payments to a fixed payment in months 10-59 and a balloon payment in month 60 of plan, is not confirmable -- Even if, because of the failed mortgage modification mediation, the two step-ups do not violate requirements of 11 U.S.C. section 1325(a)(5), modified plan is not confirmable because debtors have failed to prove the plan is feasible by providing any evidence that would support their ability to make the balloon payment in month 60 of plan -- Because the modified plan is not confirmable and debtors have not been paying the real estate taxes on property, creditor is entitled to complete relief from stay
In re GENE C. LENTZ and MARIA LENTZ, Debtors. U.S. Bankruptcy Court, Southern District of Florida. Case No. 14-15585-BKC-LMI, Chapter 13. January 16, 2015. Laurel M. Isicoff, Judge.

11th Circuit:
Bankruptcy -- Exempt property -- Homestead -- Chapter 7 debtor, who believed he had conveyed his interest in a home by quit-claim deed prior to bankruptcy filing, cannot claim the homestead exemption on property he did not believe he owned at time of his original bankruptcy filing -- To qualify for homestead protection under Florida law, an individual must occupy the property and have actual intent to permanently live in that property, and based on undisputed facts debtor could not have legally intended to permanently reside in the home at time he filed for bankruptcy when he unequivocally stated that he did not believe that he had an ownership interest in home at that time after either conveying or attempting to convey his interest to his son and daughter-in-law
Reopening of proceeding -- Notice -- Debtor failed to properly provide notice to creditor of reopening of case and his intent not only to schedule previously undisclosed property, but also to avoid creditor's properly perfected judgment on that property by claiming a homestead exemption -- Because of debtor's failure to properly serve the Motion to Reopen on creditor in accordance with local rules and bankruptcy rules, creditor's objection to debtor's new homestead exemption claim and creditor's objection to the Motion to Avoid Lien are deemed timely
In re: PYARALI R. CHARANIA, Debtor. U.S. Bankruptcy Court, Southern District of Florida. Case No. 07-14000-RAM, Chapter 7. December 8, 2014. Robert A. Mark, Judge.

11th Circuit:
Bankruptcy -- Judges -- Recusal -- Where Chapter 11 debtor appealed both fee order granting in part fee applications submitted by debtor's counsel and directing counsel to account for all trust account transactions involving debtor as well as order denying counsel's motion for reconsideration, and debtor subsequently filed motion for recusal of bankruptcy judge, the appropriate action for the bankruptcy court, under the circumstances, was to defer ruling on the recusal motion until such time as it was clear that the court had jurisdiction over the singular issue remaining to be determined in the case -- Under the controlling “flexible finality” standard, the bankruptcy court's fee order, reconsideration order, and order setting evidentiary hearing on accounting matter did not appear to be “final,” but if those orders were properly before the district court, the bankruptcy court was at least arguably divested of jurisdiction to proceed further on any matters fairly within ambit of appeal, and it would be inappropriate for bankruptcy court to proceed on any substantive matter until recusal motion had been ruled upon
In re: ANNA MARIA SANDERS, Debtor. U.S. Bankruptcy Court, Southern District of Florida, Ft. Lauderdale Division. Case No. 13-11065-JKO, Chapter 11. February 26, 2015. John K. Olson, Judge.

11th Circuit:
Civil rights -- Public employees -- Speech -- Retaliation -- Political affiliation -- Gender discrimination -- Deputy sheriff appeals grant of summary judgment to city-county government and its sheriff on claims under 42 U.S.C. §1983 alleging that, upon taking office after winning his election, sheriff transferred her to less prestigious position in sheriff's office with less responsibility and authority because she supported his opponent in the election -- District court properly granted summary judgment to consolidated government on First Amendment claim alleging transfer violated plaintiff's rights against employer retaliation based on political affiliation on ground that claim was foreclosed as matter of law by Eleventh Circuit precedent, despite fact that consolidated government's civil service system prohibits employment decisions based on political patronage -- Under Eleventh Circuit precedent, a deputy sheriff fails as a matter of law to plead a First Amendment Claim for an adverse employment decision based on patronage wherever the duties and powers of deputy sheriff and sheriff are the same -- Political loyalty is appropriate requirement for job of deputy sheriff in Georgia -- District court properly granted summary judgment to defendants on plaintiff's Fourteenth Amendment gender discrimination claim where no genuine dispute existed over whether sheriff's proffered reason for plaintiff's transfer were a pretext for discrimination -- Plaintiff failed to create a genuine issue for trial with regard to pretext by failing to cast sufficient doubt on reasoning behind sheriff's reorganization plan for part of sheriff's officer over which plaintiff formerly had control, such that a reasonable juror could find that sheriff's explanation was not believable
TERRI EZELL, Plaintiff-Appellant, v. JOAN B. WYNN, et al., Defendants, JOHN DARR, Individually and in his Capacity as Sheriff of Muscogee County, COLUMBUS CONSOLIDATED GOVERNMENT, Defendants-Appellees. 11th Circuit.

11th Circuit:
Civil rights -- Prisoners -- Prison conditions -- Exhaustion of administrative remedies -- District court reversibly erred in dismissing prisoner's 42 U.S.C. §1983 prison-conditions suit for failure to exhaust administrative remedies established by prison -- In holding that prisoner's informal grievance did not exhaust administrative remedies, district court erred by not following two-step process created by Eleventh Circuit precedent for deciding exhaustion challenges -- District court neither took the first step of accepting plaintiff's facts as true and asking whether, given those facts, plaintiff's grievance exhausted his administrative remedies nor proceeded to second step of identifying particular factual disputes and then making specific findings to resolve those disputes and decide whether the grievance exhausted administrative remedies -- In holding that plaintiff's grievance did not exhaust administrative remedies, district court erred by enforcing a procedural bar that prison itself may have waived -- District courts may not enforce a prison's procedural rule to find a lack of exhaustion after prison itself declined to enforce the rule -- A prisoner has exhausted his administrative remedies when prison officials decide a procedurally flawed grievance on the merits
SHAWN WAYNE WHATLEY, Plaintiff-Appellant, v. WARDEN, WARE STATE PRISON, RODNEY SMITH, Corrections Officer (C.E.R.T. Team) Telfair State Prison, EXAM NURSE, Ware State Prison, MICHAEL GRIFFIN, Supervisor of Lock Down Unit & Tactical Squad Commander, Ware State Prison, Defendants-Appellees. 11th Circuit.

11th Circuit:
Wrongful death -- Medical malpractice -- Federal Tort Claims Act -- Action alleging negligent conduct of medical providers and failure to adequately credential, train, and supervise medical providers arising from allegedly negligent treatment decedent received from medical providers at Veteran's Affairs Medical Center -- Damages -- Statutory cap -- Waiver -- 24 L.P.R.A. § 10035 imposes a cap on medical malpractice liability for regional academic medical centers and “the students, physicians in postgraduate training and the faculty members thereof, for the medical procedures practiced in said Centers in the exercise of their teaching duties” -- This cap on damages is an affirmative defense -- United States waived its defense that facility at issue in this case was an RAMC, making statutory cap on damages applicable, where it failed to raise damages cap as an affirmative defense in its pleadings and engaged in discovery tactics which resulted in unfair prejudice to plaintiffs which could not be cured -- Motion for summary judgment premised on application of 24 L.P.R.A. section 10035 denied
JOSEFA QUINONES, JESSICA MARTINEZ, JUAN QUINONES and ALEXA QUINONES, Plaintiffs, v. USA, Defendant. U.S. District Court, Middle District of Florida, Tampa Division. Case No. 8:14-cv-164-T-36MAP. June 29, 2015. Charlene Edwards Honeywell, Judge.

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Sunday, October 4, 2015

One of America’s best-known sheriffs has admittedly violated a federal judge’s order to stop racially profiling Latinos

"One of America’s best-known sheriffs has admittedly violated a federal judge’s order to stop racially profiling Latinos.  But did Sheriff Joe Arpaio of Maricopa County, Arizona, do so inadvertently or intentionally? That is the question to be answered by a contempt hearing at which he testified on Thursday, the Los Angeles Times (sub. req.) reports."  More

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Monday, September 21, 2015

Dissolution of marriage, writ of mandamus, and lamb roasted on a bed of rosemary and mint-infused olive oil, with heirloom tomatoes

Attorney's fees -- Costs -- Trial court properly awarded attorney's fees to city for successfully defending an action under Bert J. Harris Private Property Rights Protection Act -- Trial court erred by denying award of costs to prevailing city in inverse condemnation action in which court found that no taking had occurred -- A prevailing governmental entity in an inverse condemnation action is entitled to recover costs
CARIBBEAN CONDOMINIUM, ETC., ET AL., Appellants/Cross-Appellees, v. THE CITY OF FLAGLER BEACH, Appellee/Cross-Appellant. 5th District.

Dissolution of marriage -- Appeals -- Appeal from final summary judgment on breach of contract claim was untimely where notice of appeal was not filed within 30 days of rendition, and circuit court docket does not reflect that any motions for rehearing had been filed -- Attorney's fees -- Appeal of order awarding attorney's fees was timely -- Error to award attorney's fees under section 57.105 without setting forth basis for finding of entitlement and facts supporting amount awarded
MARK JACKSON, Appellant, v. MICHELLE JACKSON, Appellee. 2nd District.

Dissolution of marriage -- Equitable distribution -- Error to include in equitable distribution one of husband's pensions, which parties dissipated during pendency of action -- Error to divide furniture and furnishings where parties had stipulated that such property would not be equitably divided -- Error to fail to value or divide husband's second pension
DENISE M. TERRY, Appellant, v. DOUGLAS J. TERRY, Appellee. 4th District.

Guardianship -- Attorney's fees -- Amount -- Limitation -- Claims bill -- Appeal from refusal of guardianship court to authorize payment of attorney's fees in amount exceeding $100,000 limit placed on legal fees and costs by the legislature -- Question certified: After the enactment of section 768.28 and the adoption of Florida Senate Rule 4.81(6), is it constitutionally permissible for the Florida Legislature to limit the amount of attorneys' fees paid from a guardianship trust established by a legislative claims bill?
SEARCY DENNEY SCAROLA BARNHART & SHIPLEY, P.A.; MARK EDWARDS and MITZI DEE RODEN, as parents and natural guardians of AARON EDWARDS, a minor; WILLIAM S. FRATES, II, P.A.; EDNA L. CARUSO, P.A.; VAKA LAW GROUP, P.L.; and GROSSMAN & ROTH, P.A., Appellants, v. STATE OF FLORIDA, Appellee. 4th District.

Insurance -- Automobile liability -- Uninsured motorist -- Excess coverage -- Priority of coverage -- Accident involving permissive driver of car owned by another, following which owner's liability insurer tendered its $100,000 policy limits to injured party and injured party sought coverage from its UM carrier after injured party had unsuccessfully sought payment from owner's excess liability carrier, which required that owner maintain underlying limits of $250,000 per person -- Trial court erred in granting summary judgment in favor of UM carrier on its third-party claim against excess carrier where UM carrier asserted throughout litigation that excess carrier's umbrella policy came first after owner's liability policy, and that UM policy was last in priority, but trial court actually held that UM carrier was responsible for $150,000 gap between limit of owner's automobile liability policy and the $250,000 threshold at which excess coverage was triggered -- UM carrier could not claim victory on ground that it requested a generic priority of coverage determination and received what it requested where the priority determination was, in fact, the opposite of what UM carrier sought

Insurance -- Homeowners -- Attorney's fees -- Award to insureds who prevailed in action against insurer which had denied request for appraisal -- Trial court did not abuse discretion in finding that $400 was a reasonable blended hourly rate for various attorneys who were involved in case -- 200 hours was an excessive number of hours billed, and trial court abused discretion in finding that 200 hours was reasonable -- Trial court abused discretion in awarding a multiplier where there was no showing that insureds had difficulty in obtaining competent counsel, the result obtained was not remarkable, and there were no novel or difficult factual or legal issues in case

Insurance -- Uninsured motorist -- Torts -- Automobile accident -- Damages -- Noneconomic -- Past and future pain and suffering -- Remittitur -- Trial court abused its discretion when it reduced jury awards for past and future pain and suffering against UM insurer by nearly $1 million without explaining what in the record demonstrated the need for remittitur and the reason for the amount chosen -- Comparison of pain and suffering awards in other cases does not show basis for affirming trial court in instant case -- Remand for entry of order which contains necessary findings and conclusions to support remittitur

Licensing -- Driver's license suspension -- Refusal to submit to breath test -- Circuit court, in its appellate capacity, applied wrong law and improperly substituted its judgment for that of hearing officer when it reweighed evidence before hearing officer and reversed suspension of driver's license on basis that licensee's refusal to take breath test was not voluntary
STATE OF FLORIDA, DEPARTMENT OF HIGHWAY SAFETY, etc., Petitioner, vs. JOSEPH S. BAIRD, Respondent. 3rd District.

Mandamus -- Denial -- Appeals -- Belated -- Appellate court has no authority to grant belated appeal in civil proceeding or to grant belated certiorari review
WILSON PEREZ, Petitioner, v. JULIE L. JONES, Secretary, Department of Corrections, Respondent. 1st District.

Torts -- Discovery -- Work product privilege -- Trial court improperly entered order compelling defendant to disclose to plaintiff post-accident photographs of area where plaintiff was injured where plaintiff failed to exercise due diligence to obtain substantially equivalent materials to the privileged photographs
SEABOARD MARINE LTD., Petitioner, vs. FARCONELLY CLARK, Repondent. 3rd District.

Torts -- Hospitals -- Medical malpractice -- Action arising out of incident in which nurse allegedly quickly and forcefully removed post-operative drainage tube from patient, unknowingly leaving section of drainage tube inside patient -- Jury instructions -- No error in refusing to give requested instruction on presumption of negligence arising from discovery of presence of foreign body -- Instruction was not appropriate where plaintiffs were able to present direct evidence of negligence -- At time of alleged negligence, patient was medicated, but was not unconscious, and patient's wife was in hospital room, and there were no genuine doubts surrounding identity of the allegedly culpable party or the events that led to tube being left inside patient by time case went to trial -- Foreign body instruction was not necessary to allow jury to resolve issues in case or supported by facts of case -- Whether foreign body instruction may have been properly applied to claim that nurse negligently failed to inspect tubing, although not applicable to claim of negligent removal, not considered by appellate court where parties did not submit proposed instructions differentiating claims despite trial court's request
SIMON DOCKSWELL and SANDRA DOCKSWELL, Appellants, v. BETHESDA MEMORIAL HOSPITAL, INC., a Florida corporation, Appellee. 4th District.

Torts -- Product liability -- Statute of repose -- Action by plaintiff who was injured when the filter of his swimming pool exploded, against the manufacturer of the filter, the installer of the pool and intermediate distributor of the filter, and the party who acted as the certified pool contractor -- Action was barred by twelve-year statute of repose -- Pool filter, a component part of the swimming pool, did not constitute an improvement to real property, and was not excepted from statute of repose

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