Wednesday, December 30, 2009

Health care fraud, medicaid, chestnuts roasting on an open fire

Fosamax: N.Y. FEDERAL JUDGE DISMISSES BELLWETHER FOSAMAX SUIT, In re Fosamax Prods. Liab. Litig., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 1, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Merck & Co. has won dismissal of the second of three bellwether Fosamax suits scheduled for trial as part of a New York-based multidistrict litigation proceeding. U.S. District Judge John F. Keenan of the Southern District of New York granted the company's summary judgment motion in a product liability suit filed by a Mississippi woman who says she developed osteonecrosis, or jaw bone death, from using the osteoporosis drug Fosamax (alendronate).The ruling follows a mistrial recently declared.

(Reglan) Generic Drugs: FEDERAL LAW DOESN'T PREEMPT FAILURE-TO-WARN CLAIMS, Mensing v. Wyeth Inc., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 2, Andrews Pharmaceutical Litigation Reporter December 28, 2009
A Minnesota woman's claims that generic-drug manufacturers violated state law by failing to warn consumers of a possible neurological disorder from prolonged use of their products are not federally preempted, the 8th U.S. Circuit Court of Appeals has ruled. The appeals court also held that plaintiff Gladys Mensing cannot sue name- brand manufacturers because she never took their products.According to the opinion, Mensing's doctor prescribed Reglan to treat a digestive disorder in 2001.

Navagil (Patent Infringement): TEVA FACES LAWSUIT OVER GENERIC VERSION OF SLEEP DISORDER DRUG, Cephalon Inc. v. Teva Pharms., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 3, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Biopharmaceutical company Cephalon Inc. has filed a federal patent infringement lawsuit against Teva Pharmaceuticals USA Inc. for trying to sell a generic version of its sleep disorder drug Nuvigil. Teva is infringing three patents supporting Nuvigil in its application to market a generic equivalent of the drug in the United States, according to the complaint filed in the U.S. District Court for the District of Delaware.

Health Care Fraud: OMNICARE, IVAX SETTLE KICKBACK CHARGES FOR $112 MILLION, United States v. Omnicare, 25 No. 11 Andrews Pharmaceutical Litig. Rep. 4, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Nursing home pharmacy Omnicare Inc. has agreed to pay $98 million to settle federal allegations that it participated in Medicaid kickback schemes with drug manufacturers. Drug maker IVAX Pharmaceuticals, an alleged participant in the Omnicare scheme, agreed to pay $14 million to settle the suit, according to the Justice Department. The agency said Nov. 3 it is suing two major nursing home chains for allegedly accepting Omnicare's kickbacks in return for pharmacy services contracts.

Reglan (Generic Drugs): REGLAN MAKERS ESCAPE TEXAS GENERIC-DRUG SUIT, Burke v. Wyeth, 25 No. 11 Andrews Pharmaceutical Litig. Rep. 5, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Two major pharmaceutical companies have won dismissal from a Texas woman's negligence and strict liability suit alleging she was injured by a generic version of Reglan, used to treat gastric reflux. A federal judge in Galveston, Texas, granted motions filed by Wyeth and Schwarz Pharmaceuticals, dismissing them from Virginia Burke's suit alleging they are liable for her severe neurological disorder even though they did not make the medication she took.

Medicaid Reimbursement: CALIF. DRUG GROUPS FIGHT MEDICAID CUTS, Nat'l Ass'n of Chain Drug Stores v. Schwarzenegger, 25 No. 11 Andrews Pharmaceutical Litig. Rep. 6, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Two drugstore trade associations have asked a Los Angeles federal judge to temporarily enjoin the state government from reducing Medicaid reimbursements to individual pharmacies for the disbursement of prescription drugs. The National Association of Chain Drug Stores and the National Community Pharmacists Association sued Republican Gov. Arnold Schwarzenegger and other state officials in September when the state reduced by slightly more than 4 percent its Medicaid reimbursements to pharmacies.

Billing Fraud: DRUG COMPANIES TO PAY $124 MILLION TO SETTLE MEDICAID REBATE CLAIMS, United States v. AstraZeneca Pharms., 25 No. 11 Andrews Pharmaceutical Litig. Rep. 7, Andrews Pharmaceutical Litigation Reporter December 28, 2009
Four pharmaceutical companies have agreed to pay state and federal agencies $124 million to resolve claims they underpaid drug rebates to the government under the Medicaid program. The settlements end a False Claims Act suit filed in the U.S. District Court for the District of New Hampshire by Ven-A-Care of the Florida Keys Inc., one of several such qui tam suits the home health care company has filed around the country.

Long Term Care: KENNEDY'S CLASS ACT SURVIVES TIGHT SENATE VOTE, 12 No. 13 Andrews Nursing Home Litig. Rep. 1, Andrews Nursing Home Litigation Reporter December 18, 2009
The U.S. Senate has narrowly voted in favor of a bill that would create a government-run plan for long-term-care insurance in its health care reform legislation. The Community Living Assistance Services and Supports Act, which aims to help seniors and disabled people remain living independently, survived a Republican- driven effort to strike the voluntary insurance plan from the Senate's health care legislation. In a 51-47 vote Dec. 4, Democrats won enough votes to retain the measure.

Long Term Care Insurance: 'MISLEADING' POLICY NETS FLA. CARE FIRM $20K AWARD, Bell Care Nurses Registry v. Cont'l Cas. Co., 12 No. 13 Andrews Nursing Home Litig. Rep. 2, Andrews Nursing Home Litigation Reporter December 18, 2009
A Florida home health care insurer must pay $20,000 to a nursing services company for care it should have covered under a woman's "misleading" policy, a state appeals court has held. The Court of Appeal's 3rd District reversed a lower court's award of summary judgment to Continental Casualty Co.The three-judge panel said the insurer cannot get away with inserting illegal provisions in its home health care insurance policies requiring that the insured receive "primary" health care services.

Arbitration Dispute: PROXY CAN'T SIGN ARBITRATION AGREEMENT, APPEALS COURT SAYS, Lujan v. Life Care Ctrs. of Am., 12 No. 13 Andrews Nursing Home Litig. Rep. 3, Andrews Nursing Home Litigation Reporter December 18, 2009
Nursing home chain Life Care Centers of America cannot enforce an arbitration agreement that a former resident's son signed as his mother's health care proxy, a Colorado appeals court has ruled. The Court of Appeals said Alvin Lujan did not have the authority to sign the agreement when his mother, Estella, entered Evergreen Nursing Home.Because Estella was incapacitated and did not select her son as a health care proxy, his decision-making abilities were limited to issues that directly.

Discovery: NURSING HOME BLOCKED MED-MAL DISCOVERY, ESTATE SAYS, Arbour v. Alterra Wynwood of Meridian, 12 No. 13 Andrews Nursing Home Litig. Rep. 4, Andrews Nursing Home Litigation Reporter December 18, 2009
The estate of a woman who suffocated at a Michigan nursing home says the facility is "stonewalling" the estate's attempts to conduct discovery and depositions in its negligence and medical malpractice actions. Plaintiff Jeffrey J. Arbour as representative of his late mother's estate asked the U.S. District Court for the Western District of Michigan to deny the facility's request for a protective order prohibiting the deposition of managers at the nursing home.

Urinary Sling: URINARY SLING DEFECT SUIT MOVES TO ARIZ. FEDERAL COURT, Hirt v. Bard Peripheral Vascular, 12 No. 13 Andrews Nursing Home Litig. Rep. 5, Andrews Nursing Home Litigation Reporter December 18, 2009
A lawsuit accusing various companies of manufacturing and selling a defective urinary sling that allegedly injured a Canadian woman will play out in a federal court in Arizona. C.R. Bard Inc. removed the case to the U.S. District Court for the District of Arizona on the ground that defendants Bard Peripheral Vascular Inc. and Davol Inc. were fraudulently joined because they did not design, manufacture or sell the sling. Plaintiff Susan Hirt lives in Ontario. C.R. Bard is a New Jersey corporation.

Medical Malpractice: DOCTORS DIAGNOSED STROKE AS THYROID DISORDER, SUIT SAYS, Talavera v. Sw. Med. Ctr., 12 No. 13 Andrews Nursing Home Litig. Rep. 6, Andrews Nursing Home Litigation Reporter December 18, 2009
A Kansas emergency room failed to diagnose or treat a Mexican woman's stroke symptoms for five days, and she was driven to Mexico by taxi and left in a public park after suffering a massive stroke, according to a federal court lawsuit. Despite numerous opportunities to identify Carmen Talavera's signs of impending stroke, five doctors at Southwest Medical Center in Liberty, Kan., failed to include stroke in her differential diagnosis.

Medicare Billing: ORE. HOSPICE SETTLES FALSE-CLAIMS CASE FOR $1.8 MILLION, 12 No. 13 Andrews Nursing Home Litig. Rep. 7, Andrews Nursing Home Litigation Reporter December 18, 2009
Kaiser Foundation Hospitals will pay $1.83 million to settle allegations that its Oregon hospice facility's failure to comply with Medicare billing regulations violated the False Claims Act. The Nov. 12 pre-suit settlement followed Kaiser's voluntary disclosure to the Department of Health and Human Services that its Portland hospice did not get written certifications of terminal illness for patients from October 2000 through March 2004, the Justice Department said.

Medicare Fraud: FEDS, N.J. HOSPITAL SETTLE FRAUD CASE FOR $3 MILLION, United States v. Besler Consulting, 12 No. 13 Andrews Nursing Home Litig. Rep. 8, Andrews Nursing Home Litigation Reporter December 18, 2009
A New Jersey hospital will pay the federal government $3 million to settle a whistle-blower suit alleging Medicare billing fraud. Concurrently with settling its case against Trinitas Regional Medical Center in Elizabeth, N.J., the Justice Department said it was intervening in the same whistle-blower case against another defendant, Brookhaven Memorial Hospital Medical Center in East Patchogue, N.Y.

News Brief: FEDS RELEASES LIST OF NATION'S WORST NURSING HOMES, 12 No. 13 Andrews Nursing Home Litig. Rep. 9, Andrews Nursing Home Litigation Reporter December 18, 2009
The Centers for Medicare and Medicaid Services has released its annual report on the performance of nursing homes with a history of serious care quality issues. The report, released Nov. 25, details the ongoing status of nursing homes enrolled in CMS' "special focus facility" initiative. The program requires nursing homes with a greater number of documented deficiencies and problems, such as frequent resident injuries, to undergo additional inspections by CMS and state representatives.

News Brief: OBAMA LAUNCHES NEW BIOETHICS COMMISSION, 12 No. 13 Andrews Nursing Home Litig. Rep. 10, Andrews Nursing Home Litigation Reporter December 18, 2009
President Obama has created a new commission to advise him on issues that may arise as a result of advances in biomedicine and related areas of science and technology. The Presidential Commission for the Study of Bioethical Issues, created by executive order Nov. 30, replaces former President George W. Bush's Council on Bioethics. Obama abolished the council in June. The White House said in a statement that the new commission will identify and promote policies and practices.

Wrongful Termination: NURSING ASSISTANT SUES FACILITY, UNION FOR WRONGFUL TERMINATION, Dischinger v. Extendicare Homes, 12 No. 13 Andrews Nursing Home Litig. Rep. 11, Andrews Nursing Home Litigation Reporter December 18, 2009
A former nursing assistant accused of sexual abuse at a Minnesota long term care facility has filed a lawsuit in Minnesota federal court, alleging his union intentionally failed to pursue his wrongful-termination grievance within the required time period. In his complaint filed in the U.S. District Court for the District of Minnesota, Mark Dischinger says the Service Employees Healthcare Minnesota, Local 113 of the Service Employees International Union, engaged in "back- channel discussions".

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Tuesday, December 15, 2009

An Honest Debate

An Honest Debate
Posted Dec 1, 2009 9:09 PM CST
By David G. Savage

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Saturday, December 12, 2009

Parsley, rosemary, sage, thyme sprinkled over some new decisions

Counties -- School boards -- Termination of teacher's employment -- Teacher had right to counsel at investigatory interview conducted by investigator for school board's office of professional standards -- By its adopted policy, school board elected not to conduct investigations into allegations of teacher misconduct, but instead delegated its investigatory authority over these types of complaints to office of professional standards, and office of professional standards investigator's investigation constitutes an “agency in investigation” as that phrase is used in section 120.62(2), Florida Statutes
Reported at 34 Fla. L. Weekly D2488b

Condominiums -- Where condominium association filed petition for temporary injunction against unit owner, and court denied petition and returned matter to arbitration, award of attorney's fees to unit owner as prevailing party was premature -- Award of fees was error because the non-final order denying the petition for injunction did not end the litigation between the parties, and no final determination on the merits had been made
Reported at 34 Fla. L. Weekly D2501a

Non-named parties -- Defendant was entitled to award of attorney's fees against parties who were not named as plaintiffs, but who financed and had control over litigation -- Non-named parties' involvement in litigation was such that their status rose to level of a “party” -- Defendant was entitled to award of attorney's fees under civil theft statute where plaintiff's civil theft claim was without substantial legal support -- Defendant was not entitled to award of attorney's fees against non-named parties under offer of judgment statute where offer was not served on non-named parties
Reported at 34 Fla. L. Weekly D2496a

Contracts -- Action alleging that defendant breached contract for sale and purchase of LP gas by charging plaintiff for tank rental where contract only allowed defendant to change its charges for gas or gas service, and that tank is neither gas nor a service -- Error to enter summary judgment for defendant -- Breach of contract claim was not barred on ground that contract was terminable at will, where plaintiff alleged that defendant breached contract while it was in effect -- Summary judgment was improper where there was factual issue as to whether tank rental was a “service”
Reported at 34 Fla. L. Weekly D2485a

Contracts -- Specific performance -- Limitation of actions -- Equitable estoppel -- Doctrine of equitable estoppel acts as bar to statute of limitations defense, and its application is wholly independent of statute of limitations and its tolling provisions -- Trial court erred in relying on tolling statute to determine whether plaintiff's claims for specific performance were barred by statute of limitations where plaintiff asserted that defendant was equitably estopped from asserting statute of limitations defense -- Record will not permit appellate court to affirm on alternate basis that plaintiff did not allege sufficient facts to raise defense of equitable estoppel where adequacy of allegations was not at issue in trial court and, accordingly, plaintiff had no opportunity to address issue or proffer additional facts -- Trial court correctly dismissed count seeking to plead equitable estoppel as a separate cause of action -- Plaintiff entitled to new trial on breach of contract claim where jury found defendant had breached contract, but awarded zero damages despite uncontradicted evidence establishing more than nominal damages
Reported at 34 Fla. L. Weekly D2490a

Creditors' rights -- Garnishment -- Priorities -- Trial court properly determined that judgment lien controlled distribution of cash bond that had been deposited with clerk of court in an unrelated case and returned to debtor's attorney upon close of case -- Intervenor which claimed security interest in cash bond based on Uniform Commercial Code financing statement failed to establish that cash bond fell under any of the categories of collateral described in security agreement -- Cash bond was not an account, general intangible, deposit account, or financial asset within the meaning of UCC -- Assuming cash bond could be categorized as “money,” a security interest in money may be perfected only by secured party's taking possession under section 679.3131, a circumstance which did not occur in this case -- Jury trial -- Intervenor waived its right to jury trial by participating in non-jury trial
Reported at 34 Fla. L. Weekly D2495a

Employment discrimination -- Handicapped employees -- Plaintiff alleging employer discriminated against her when it terminated her from her cashier position because she had HIV, in violation of Florida Omnibus AIDS Act and Florida Civil Rights Act -- Evidence -- Trial court abused its discretion in admitting into evidence the “no reasonable cause” determination letter issued by county agency authorized to conduct investigations for Equal Employment Opportunity Commission because the conclusory nature of the agency's determination letter left it with little probative value compared to the substantial prejudicial effect it may have had on jury's ultimate assessment of plaintiff's credibility and the pivotal determination as to whether plaintiff had provided a doctor's note to her employer following her HIV-related absence -- Appellate court cannot say that erroneous admission of this evidence was harmless -- Discussion of admissibility of administrative findings and conclusions of EEOC or similar enforcement agency in a subsequent jury trial de novo under Florida Civil Rights Act or similar statutes
Reported at 34 Fla. L. Weekly D2477a

Commercial property damage -- Insolvent insurers -- Where insolvent insurance company which was Florida Insurance Guaranty Association's predecessor failed to comply with notice requirements of statute, insured was not required to submit to loss appraisal process -- FIGA is not exempt from notice requirement -- Line of cases refusing to hold FIGA liable for misdeeds of defunct insurer, beyond those arising out of an insurance policy, does not provide basis for avoiding application of statute -- FIGA's contention that appraisal process here is not a “precondition to legal action” within meaning of statute rejected in view of fact that FIGA requested stay in circuit court until contractual loss appraisal process was completed
Reported at 34 Fla. L. Weekly D2481a

Insurance -- Personal injury protection -- Defendant insurer's claim that it was not required to pay medical provider's bills because provider did not provide insurer with proper written notice of a covered loss where initial set of bills did not include a disclosure and acknowledgment form, and box 31 of CMS-1500 form did not contain physician's license number -- Where bills furnished to insurer contained physician's name, bills were substantially complete, and provided proper notice to insurer -- Even if physician's license number were deemed a material provision of statements or bills, absence of license number was cured by later submission of number to insurer -- Failure of medical provider to provide disclosure and acknowledgment form with initial set of bills was cured by submitting form prior to litigation -- Circuit court appellate division did not depart from essential requirements of law in affirming county court's entry of summary judgment for medical provider in action seeking unpaid benefits
Reported at 34 Fla. L. Weekly D2500a

Mortgage foreclosure -- Condominium unit -- Trial court erred in entering order requiring mortgagee to diligently proceed with pending foreclosure action within thirty days, or pay monthly maintenance fees on condominium unit in foreclosure
Reported at 34 Fla. L. Weekly D2505b

Torts -- Action by employee of window subcontractor and his wife against another subcontractor who installed safety railings at construction site, alleging that safety railings were negligently installed -- No error in entering summary judgment in favor of defendant on negligence issues where uncontested evidence established that defendant did not negligently install guardrail system -- Affidavit of plaintiff's human factors and industrial safety expert that “Safety Boot guardrail system was not properly installed” was based upon expert's reference to manufacturer's installation instructions depicting required railings, not upon expert's personal knowledge
Reported at 34 Fla. L. Weekly D2484a

Torts -- Automobile accident -- New trial -- Action by driver of motorcycle which collided with SUV driven by defendant when defendant's vehicle exited a parking lot and made a left-hand turn across lane in which plaintiff was traveling -- Plaintiff's motion for new trial on ground that jury verdict for defendant was against manifest weight of evidence -- Trial court did not abuse discretion in denying motion for new trial where there was conflicting evidence as to whether plaintiff ran red light before colliding with defendant's vehicle -- In denying motion for new trial, court was not required to articulate specifically that jury's finding was not contrary to manifest weight of evidence
Reported at 34 Fla. L. Weekly D2498a

Venue -- State agencies -- Home venue privilege -- Action filed in Pinellas County against state agencies and former employees of reform school, alleging causes of action against state agencies and individual defendants for violations of Declaration of Rights of Florida Constitution, and against individual defendants for assault and battery and intentional infliction of emotional distress -- Error to deny motion to transfer venue to Leon County, where state agencies have their headquarters -- State agencies did not waive home venue privilege by agreeing that venue was proper in either Leon County or Jackson County -- Joint tortfeasor exception to home venue privilege was not applicable where plaintiffs did not establish a statutory basis for venue against any defendants in Pinellas County -- Where state agencies and individual defendants are willing to submit to venue in either Leon County or Jackson County, and plaintiffs have indicated that they would prefer to try the case in Leon County, transfer of venue to Leon County is proper -- Appeals -- Order denying defendants' motion to transfer venue without prejudice is an appealable non-final order that concerns venue
Reported at 34 Fla. L. Weekly D2486b

Bankruptcy -- Adversary proceedings -- Contracts -- Chapter 11 trustee brought adversary proceeding against customer to recover amounts owed under fulfillment warehouse contract, and customer filed counterclaim seeking to recoup or setoff costs incurred to remove its property from debtor's warehouse -- Summary judgment affidavits of customer's employee were based on personal knowledge, and thus were admissible, where employee based statements in affidavits on her review of customer's business records -- Amendment of trustee's answer to counterclaim by changing two admissions to denials is in interest of justice, good cause exists for amendments, neither substantial nor undue prejudice will be incurred by allowance, and underlying motivation is neither rooted in bad faith nor generally dilatory in nature -- Recoupment -- Debtor's claim against customer for compensation due under fulfillment warehouse contract and customer's claim against debtor for damages arising from debtor's post-petition non-performance under contract did not arise from same transaction, and thus customer could not assert recoupment claim -- Setoff -- Damages sustained by customer as result of trustee's rejection of fulfillment warehouse contract are deemed to have arisen prepetition, and thus customer could setoff damages arising from removal of property from debtor's warehouse against funds owed debtor in form of outstanding invoices arising under contract
Reported at 22 Fla. L. Weekly Fed. B144a

Bankruptcy -- Confirmation -- Chapter 11 plan -- Liquidating plan pursuant to which debtor proposes to transfer substantially all of its assets free and clear of junior liens and encumbrances to mortgagee, who held perfected first mortgage lien and security interest in all of debtor's assets as of petition date, should be confirmed -- Debtor's revised joint plan of reorganization satisfies requirements for confirmation set forth in Section 1129 of Bankruptcy Code where debtor has been and will continue to be affected by decline in property values and unfavorable real estate market that has been experienced nationwide and plan will result in benefits to creditors that may not be available if case were dismissed or converted -- Objections to confirmation by claimants who had entered into prepetition agreements to purchase condominium units or related property from debtor on ground that plan impermissibly strips purchase contract claimants' equitable vendees' liens from debtor's real properties and improperly permits debtor to assign their deposits to mortgagee should be overruled, because claimants' claims, to extent they assert an interest in real property, have been disallowed, and because claimant's rights to deposits are preserved in plan
Reported at 22 Fla. L. Weekly Fed. B139a

Bankruptcy -- Discharge -- Denial -- Transfer or concealment of assets with intent to hinder, delay, or defraud creditor -- Bankruptcy court did not err in denying discharge based on finding that debtor had, with intent to shield assets from his creditors, diverted the fruits of his labor to increase the value of his wife's business and then used business assets to support his personal lifestyle -- Continuing concealment doctrine precludes debtor's contention that he could not have “concealed” assets from creditor within the one-year look-back period of section 727(a)(2)(A) because creditor had learned about debtor's alleged equitable interests more than a year before bankruptcy petition was filed
Reported at 22 Fla. L. Weekly Fed. C292a

Bankruptcy -- Discharge -- Complaint -- Amendment of pleadings to add various factual allegations is not required where evidence outside pleadings that was admitted and considered by trial court does not present a basis for relief -- False oath or account -- Omissions from Statement of Financial Affairs of transfers of debtor's interests outside ordinary course of business constitute false oaths and are cause for denial of discharge under section 727(a)(4)(A) because failure to disclose these transfers in debtor's schedules and statements was material and willful -- With fraudulent intent, debtor made deliberate omissions from his schedules and statements, and cannot shield this intent behind plea that he was merely following advice of counsel -- Prepetition fraudulent transfers -- Denial of discharge under Section 727(a)(2)(A) for fraudulent transfer of property within year prior to filing of petition is not warranted because evidence was insufficient to establish fraudulent transfer -- Under section 727(a)(2), transfer of funds from debtor's home equity line to IRA was not fraudulent where result of transaction was to make more assets available to creditors -- Conversion of exempt assets into non-exempt assets by inadvertence, with negative consequences to debtor, cannot be a fraudulent transfer -- Prepetition transfer or concealment of estate property of insider -- Denial of discharge based on allegations that debtor concealed or destroyed property of estate of insider of debtor is not warranted where plaintiff presented evidence regarding concealment or destruction of cabinet doors in facilities used by insider, but failed to establish that cabinet doors were, at that time, property of insider's bankruptcy estate -- Failure to satisfactorily explain loss of assets -- Issues of whether debtor satisfactorily explained whereabouts of his Rolex watch or alleged disposition of that watch and whether debtor satisfactorily explained disposition of $7,000 in cash obtained within six months of filing of bankruptcy are questions of fact -- Failure to maintain adequate books and records -- Denial of discharge pursuant to section 727(a)(3) for failure to keep or preserve recorded information is not warranted where failure to keep and maintain records documenting sale of debtor's Rolex watch is justified given that sale of 20 year old watch was cash transaction between acquaintances while on vacation
Reported at 22 Fla. L. Weekly Fed. B131a

Bankruptcy -- Liens -- Validity, extent, and priority -- Chapter 7 trustee holds superior right, claim, title, lien and interest in property referenced in lien claimed by defendants pursuant to financing statement filed in Pennsylvania, including, but not limited to, account receivable allegedly owed to debtor -- Because defendants' security interest was never perfected, trustee can avoid the lien under Section 544(a), and preserve it under Section 551 for benefit of estate and thus for benefit of all creditors -- Defendants' lien is unperfected, rendering it unsecured, where financing statement with respect to Florida debtor should have been filed in Florida, not Pennsylvania -- Trustee is free to administer such assets of bankruptcy estate, free and clear of any claim of right , title, lien, or interest by defendants -- Defendants permanently enjoined from collecting, in any manner whatsoever, on any receivables of debtor, including, but not limited to account receivable owed to debtor under contract; such property detailed in financing statement; or any other assets of estate -- Issuance of injunction is necessary and appropriate where immediate and irreparable injury will result to trustee if defendants are free to collect on receivables of debtor, property detailed in financing statement, and any other assets of estate, issuance of injunction does not substantially affect public interest and will benefit public interest by maintaining status quo, and trustee has no adequate remedy at law, as best legal remedy would relegate trustee to filing separate claim for damages each time it is injured anew -- Damages -- Defendants committed willful violations of automatic stay by manifesting the intent to violate stay in demand letter -- As sanctions, trustee is entitled to award of attorney's fees and costs associated with defendants' conduct in attempting to collect on assets which are property of bankruptcy estate -- Trustee is not entitled to additional sanctions because no showing of actual damages other than attorney's fees and costs has been made -- Punitive damages may not be awarded
Reported at 22 Fla. L. Weekly Fed. B148a

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Friday, December 4, 2009

Judge Cancels $525K in Mortgage Debt, Blasts Bank’s ‘Shocking and Repulsive’ Acts

Posted Nov 30, 2009 9:21 AM CST on ABA JOURNAL LAW NEWS By Debra Cassens Weiss
A New York judge has wiped out $525,000 in mortgage debt for a couple, saying the bank misled him about the amount at stake and refused to work with the homeowners to modify the loan.

The judge, Jeffrey Spinner, canceled the mortgage, interest and penalties after finding that the actions of the bank and its mortgage servicer were "harsh, repugnant, shocking and repulsive,” according to the New York Post, Newsday (sub. req.) and CNN. The couple had represented themselves.

The judge’s ruling leaves Diane Yano-Horoski and her husband, Greg Horoski, without any debt on their interest-only mortgage. Spinner’s “scathing” ruling blasted IndyMac Mortgage Services, a division of OneWest Bank F.S.B., according to the stories.

Skinner called OneWest Bank’s conduct "inequitable, unconscionable, vexatious and opprobrious."

Greg Horoski was surprised by the ruling. "We never asked for this," Horoski told the Newsday. "I was shocked, honestly. It's not like we said, 'Judge, please throw the loan away.' We just wanted them [the bank] to be reasonable."

Horoski told Newsday he and his wife were overwhelmed by the media attention and distraught over the death of their dog, who was hit by a neighbor's car last week. "Maybe God is telling us not to be too happy about the decision," he said.

OneWest Bank plans an appeal. “We believe the Yano-Horoski ruling, if allowed to stand, has sweeping and dangerous implications for the entire mortgage lending industry,” the bank told Newsday.

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Wednesday, December 2, 2009

Hospitals, wrongful death, declaratory judgments and business over fresh salad greens

Declaratory judgment -- Insurance -- Liability -- Coverage -- Liability policy at issue was claims made and reported policy, not an occurrence policy -- Defendant whose consumption of dietary supplement formulated by insured caused liver problems which necessitated a liver transplant and subsequent medical treatment suffered an ongoing bodily injury that spanned both periods in Retroactive Date Endorsement of liability policy at issue, entitling her to $1 million policy limits in effect during first claims period and $4 million policy limits in effect during subsequent claims period
Reported at 22 Fla. L. Weekly Fed. D110a

Torts -- Negligence -- Action by stunt driver who was injured during performance when dip in dirt right in front of ramp caused his car to lose speed and to fall short of catch cars, alleging that the event producer's crew was grossly negligent in failing to ensure that the ramp approach was properly smoothed and that person in charge of agenda was negligent for refusing to adjust time schedule to allow enough time to prepare ramp approach before plaintiff's stunt -- Release -- Although contract between the parties contained provision releasing defendant from liability for any claim arising out of stunt show, whether caused by negligence “or otherwise, and this language has been interpreted as including gross negligence, the release barring recovery for gross negligence is unenforceable under circumstances because of Florida statute prohibiting the operator of a closed-course motorsports facility to disclaim liability for gross negligence -- Football stadium at which stunt was performed was equivalent of closed-course motorsports facility under facts of case -- Whether defendants' conduct amounted to gross negligence is question for jury in this case
Reported at 22 Fla. L. Weekly Fed. D109a

Venue -- Torts -- Interference with business relationship -- Venue is improper in Southern District of Florida where plaintiff failed to allege that defendants' tortious conduct, or any acts with a close nexus to tortious conduct, occurred within Southern District -- Proper focus of venue inquiry is on relevant activities of defendants, not plaintiff's conduct -- Case transferred to Northern District of Georgia. the judicial district in which all defendants reside
Reported at 22 Fla. L. Weekly Fed. D113a

Criminal law -- Search and seizure -- Prescription records -- Error to grant motion to suppress records obtained from a pharmacy by an investigating law enforcement officer -- Section 893.07(4) requires pharmacies to make controlled substance records available to law enforcement officers and does not require pharmacies to notify the patient or withhold such records until a warrant is presented -- Federal Health Insurance Portability and Accountability Act does not constitute legal basis for suppression of records at issue -- Privacy provision of Florida Constitution does not support suppression of records in this case
Reported at 34 Fla. L. Weekly D2466a

Administrative law -- Florida Housing Finance Corporation -- Rejection of application for funding to build affordable housing -- Florida Housing Finance Corporation impaired the fairness of the proceedings before hearing officer by failing to index an order in a previous case and post it to the public where the previous decision was relevant and could have changed the outcome of the case had applicant and the hearing officer had benefit of the decision
Reported at 34 Fla. L. Weekly D2469a

Contracts -- Damages -- Defendant's breach of contract by failing to have plaintiff named as additional insured on policies obtained by defendant, with result that plaintiff had to settle personal injury action against it after defendant's insurer refused to defend -- Where plaintiff had filed unsuccessful declaratory judgment action seeking declaration that defendant's insurer had duty to defend and provide coverage to plaintiff, trial court did not err in allowing jury in breach of contract action to award attorney's fees and costs incurred by plaintiff in declaratory judgment action -- Prejudgment interest -- Trial court erred in failing to award prejudgment interest on entire jury verdict, including portions attributable to attorney's fees and costs incurred in personal injury action against plaintiff and declaratory judgment action
Reported at 34 Fla. L. Weekly D2467b

Workers' compensation -- Contribution -- Limitation of actions -- Carrier which was at risk at time of claimant's second accident was not entitled to contribution from carrier at risk at time of first accident for benefits second carrier voluntarily paid for care and treatment which was ultimately found to be wholly related to first accident where statute of limitations expired on first accident by the time of the occurrence of second accident -- Second carrier could not revive statute of limitations by merely providing benefits
Reported at 34 Fla. L. Weekly D2465a

Wrongful death -- Hospitals -- Action against hospital alleging that hospital had legal duty to decedent that was breached by its negligent hiring and supervision of surgical nurse employed by hospital who murdered decedent with an injection of hazardous controlled drugs -- Error to dismiss complaint for failure to allege a legal duty owed to decedent by defendant -- Allegations that defendant knew or should have known of the risk of unsupervised release of hazardous controlled drugs under its control, that a reasonable medical care provider like defendant would understand that the public would be exposed to risk of harm unless procedures and actions were undertaken to guard against the risk of unauthorized removal of hazardous drugs from its control without a doctor's prescription, and that the death of decedent was a foreseeable consequence of defendant's failure to use reasonable care in the hiring and supervision of nurse, were sufficient to establish a duty of care
Reported at 34 Fla. L. Weekly D2470b

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Saturday, November 14, 2009

Internet law

Judge Rules Web Commenter Will Be Unmasked to Mom of Criticized Teen
From ABA Journal Weekly, Posted Nov 9, 2009, 04:00 pm CST By Martha Neil

An Illinois judge has decided that an anonymous commenter on a newspaper website will be unmasked, even though the mother of a teen about whom "Hipcheck16" allegedly made "deeply disturbing" comments hasn't yet decided whether to sue over the posting.

The mother, Lisa Stone, is a trustee of Buffalo Grove in suburban Chicago. The comments on the Daily Herald's website were made just before an April 7 election in which she won a seat, reports the Chicago Tribune.

Stone calls the posted comments about her 15-year-old son "deeply disturbing," but they aren't specifically described in the article.

Attorney Michael Furling, who represents Hipcheck16, says he will talk to his client about whether to appeal today's ruling by Cook County Circuit Judge Jeffrey Lawrence.

Although Lawrence ruled that Hipcheck16's identity must be revealed to Stone—and to a process server, should she decide to sue—he said it should remain confidential to others, according to the newspaper.

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Tuesday, November 10, 2009

Home Court Showdown at the Supreme Court

Battle over wage-and-hour action against Hertz is all about location, location, location

a post by Marcia Coyle in The National Law Journal
November 10, 2009

"The auto rental giant Hertz is incorporated in Delaware, has its headquarters in New Jersey and does its biggest volume of business in California. So where is Hertz's "principal place of business?"

The answer depends on which federal appellate court is asking the question. During the past 51 years, federal courts have used a hodgepodge of tests to determine a corporation's principal place of business. The U.S. Supreme Court today, for the first time, will consider what is the correct test in Hertz Corp. v. Friend, a case involving Hertz employees who claim the company violated California's wage-and-hour laws.

What the Supreme Court decides, in effect, will determine the battlefields on which class action and other litigation involving multistate corporations will be fought. Will it be what corporations perceive to be the friendlier forum of the federal courts or the plaintiff-sympathetic state courts?

Hertz, backed by such national business organizations as the U.S. Chamber of Commerce, is urging the justices to decide that a corporation's principal place of business for determining federal court jurisdiction is the corporation's headquarters. The "headquarters" approach offers a bright-line, certain and efficient way of determining a corporation's citizenship, according to Hertz high court counsel, Sri Srinivasan, a partner in the Washington office of O'Melveny & Myers. Under that approach, Hertz's principal place of business would be New Jersey and it could fight the wage-and-hour claims in federal court because, under the federal diversity jurisdiction statute, its New Jersey citizenship is different from the citizenship of the California employees suing it.

But that test ignores the realities of how multistate corporations do business, countered Robert Stein III, a partner in the Santa Ana, Calif., office of Adorno & Yoss, whose co-counsel, Todd Schneider of San Francisco's Schneider Wallace Cottrell Brayton Konecky, will argue for the Hertz employees.

Stein and his supporters argue that it makes more sense to look at whether any single state contains a substantial predominance of the corporation's business activity -- including facilities, employees and revenues. The 9th U.S. Circuit Court of Appeals took that approach in October 2008, decided Hertz's principal place of business was California, and sent the wage-and-hour lawsuit back to state court.

"It's very, very important for the Supreme Court to resolve this," said A. Benjamin Spencer of Washington and Lee University School of Law. "Today you can have a district court in New Jersey, knowing Hertz is headquartered there, that would be inclined to say New Jersey is Hertz's principal place of business. And, you have a district court in California saying it's California. Analytically, you can't have that. It can't be both."


Before 1958, the federal diversity statute said a corporation was only a citizen of its state of incorporation. But Congress found that some corporations engaging in local business were able to circumvent their local courts and get into federal court by getting out-of-state charters. Its evidence: more cases involving state-law claims and parties having the same citizenship were burdening the federal courts.

Congress amended the diversity statute to state that a corporation was a citizen of its state of incorporation and of the state where it had its "principal place of business." Congress wanted to reduce the federal courts' caseload and to preserve the original purpose of diversity jurisdiction, which was to protect true foreign corporations from the biases of local courts and juries. Congress believed a corporation was unlikely to face prejudice in a state where it had its principal place of business.

Congress, however, did not define principal place of business, and so the federal courts filled that void with varying and conflicting approaches.

The 5th, 6th, 8th, 10th and 11th circuits use a "total activity" test that examines the company's purposes, type of business and legal site of its operations. The 1st, 2nd and 4th circuits apply a variation of that test, and the 3rd Circuit looks for the "center of corporate activity." The 9th Circuit compares the states in which the corporation operates to determine where it has a "substantial predominance" of its operations.

The 7th Circuit is the only circuit that uses the "nerve center" test, explaining in one decision, "[W]e look for the corporation's brain, and ordinarily find it where the corporation has its headquarters." This circuit finds the location from which the company's chief executives control and direct activities at all other corporate sites."


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Monday, November 9, 2009

Explanation of benefits, valid medical reports and spicey cornbread

Insurance -- Personal injury protection -- Explanation of benefits -- Circuit court appellate division departed from essential requirements of law in affirming county court judgment finding that an insured has a private cause of action against a PIP insurer who fails to provide its insured an itemized specification of each item the insurer has reduced, omitted, or declined to pay within 30 days after the insurer is furnished written notice of the fact of a covered loss and the amount -- There is neither a requirement nor a deadline for a PIP insurer to respond to a request for payment -- A response is required from the insurer only when insurer either pays a portion of a claim or rejects a claim -- Insured has no private right of action against insurer for insurer's failure to provide an explanation of benefits to insured or insured's assignee in timely manner -- Appeals -- Case falls within limited category of cases in which district court is authorized to exercise discretion to review a circuit court appellate division per curiam affirmance of county court order or judgment
Reported at 34 Fla. L. Weekly D2268a

United Auto. Ins. Co. v. Santa Fe Medical Center ,(Fla.App. 3 Dist.)
Insurance - Insurer was not required to obtain valid medical report before denying a PIP claim.
The Florida District Court of Appeal has held that the subsection of the personal injury protection (PIP) statute providing that an insurer may not withdraw payment without the consent of the injured person, unless the insurer first obtains a valid report by another physician that the treatment was not reasonable, related, or necessary, does not require the insurer to obtain a valid medical report to deny payment of a PIP claim. Rather, this statute only requires that a valid report be obtained when further PIP benefits are withdrawn without the consent of the injured person. In so holding, the District Court of Appeal receded from United Auto. Ins. Co. v. Bermudez, to the extent that decision suggested that the medical report requirement applied to the denial of PIP benefits.

This decision may not yet be released for publication.

Insurance -- Coverage -- Waiver and estoppel -- Questions certified to Georgia Supreme Court: 1) Does an insurer effectively reserve its right to deny coverage if it informs the insured that it does “not see coverage,” after the insured had received a written reservation of rights from the insurer's sister company in a similar lawsuit in another jurisdiction, or is a written or more unequivocal reservation of rights required? 2) When an insurer assumes and conducts an initial defense without notifying the insured that it is doing so with a reservation of rights, is the insurer estopped from asserting the defense of noncoverage only if the insured can show prejudice, or is prejudice conclusively presumed? 3) If the insured must show prejudice, do the facts and circumstances of this case show it?
Reported at 22 Fla. L. Weekly Fed. C233a

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Thursday, October 29, 2009

Dad’s Dumpster Dive Led to $1.8M Win in Phone Records ‘Pretexting’ Case

From the ABA Journal Law News Now

Posted Oct 19, 2009, 07:26 pm CDT
By Martha Neil

"Saleswoman Kathy Lawlor got into a dispute with her employer four years ago over a big incoming commission, and she said the company fired her when she wouldn't agree to sign a document changing her compensation schedule.

The pay dispute soon wound up in court, and her ex-employer, North American Corp. of Illinois, called a Chicago lawyer to arrange an investigation into Lawlor's activities, reports the Chicago Tribune.

The lawyer called a private investigation company, Probe International. And the then-president of PI, according to court testimony arranged for a third-party vendor to obtain Lawlor's personal phone records by "pretexting"—i.e., pretending to be Lawlor herself, the newspaper recounts.

The lawyer says he knew nothing about the pretexting, which wasn't then illegal. (It is now.) But a Cook County Circuit Court jury nonetheless was sympathetic to Lawlor's invasion-of-privacy claim, awarding her a $1.8 million judgment last month against North American, which says it did nothing wrong, the Tribune recounts. Lawlor testified that discovering her phone records had been obtained by North American made her fearful about her family's safety. She stopped letting her children play in the yard and installed a new security system at her suburban Chicago home.

The pay dispute morphed into a seven-figure invasion-of-privacy claim after Lawlor and a neighbor noticed that a private eye apparently was watching her for hours from a car parked next door. The neighbor saw the driver throw some papers into the trash one day, and mentioned this to Lawlor's father. He pulled some papers out of the garbage can that identified Probe as the company that apparently had been investigating her, and Lawlor took them to her then-lawyer, the Tribune reports.

"The defining moment in the case was when Kathy Lawlor walked into my office and handed me a white envelope with a return address that said 'Probe,' " attorney William Kane tells the newspaper. He sought Lawlor-related records from Probe and, although the company and North American fought the subpoena, claiming the investigation was confidential, Kane prevailed. When the material arrived, it contained pages of Lawlor's phone records.

A Construction Law Attorney Blog post by a lawyer who served on the jury in the case notes that the verdict was comprised of $65,000 in compensatory and $1,750,000 in punitive damages. Lawlor's intrusion-on-seclusion claim contended that North American provided confidential information from her personnel file that Probe used in the pretexting, he notes.

Lawlor, who is now 41, tells the Tribune it is gratifying to have stood up for what was right and won. However, the big-bucks award is not all hers: Her current counsel, Mitchell Katten and Nancy Temple, represented her on a contingency-fee basis, and Kane billed Lawlor $600,000 for his noncontingent representation, the newspaper notes.

A lawyer for North American says the company is fighting the $1.8 million verdict, but declined further comment. The company still has an outstanding claim against Lawlor for allegedly disclosing business secrets to a competitor, which will be decided by Judge Carol Pearce McCarthy."

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Wednesday, October 7, 2009

new regs on breast cancer treatment, e-records and chocolate covered espresso beans

Florida Insurance - General - State Bill Tracking
2010 Florida Senate Bill No. 190 112th Regular Session (SUMMARY - NETSCAN)
Breast Cancer Treatment; Includes lymph node dissections under provisions prescribing the length of hospital stay relating to a mastectomy and the outpatient postsurgical followup care that specified health insurers and health maintenance organizations must cover, etc. EFFECTIVE DATE: 07/01/2010
2010 FL S.B. 190 (NS)

Florida Insurance - General - State Regulation Tracking
Proposed Rules October 02, 2009
The proposed rule amendment resolves the problem of paper document processing by requiring all material filed with the Department relating to a Section 624.155, F.S. civil remedy action be filed electronically. The civil remedy notice is already required to be filed electronically. This amendment requires the insurer's report of disposition and other communications, which parties wish to submit, to likewise be filed electronically.
2009 FL REG TEXT 185997 (NS)

Health Insurance: N.J. FEDERAL JUDGE WON'T DISMISS SUIT OVER RISING PREMIUMS, Clark v. Prudential Ins. Co., 5 No. 11 Andrews Insurance Bad Faith Litig. Rep. 1, Andrews Insurance Bad Faith Litigation Reporter October 6, 2009
A federal judge in New Jersey has refused to dismiss a bad-faith claim filed by a woman whose health insurance premiums soared to more than $50,000 a year after the insurer closed the risk pool on her policy. By "blocking" or closing the insurance product to new customers, the insurer knew it was creating a rising cost spiral that would prevent existing policyholders from maintaining their policies and reaping their benefits, U.S. District Judge Dickinson R. Debevoise said.

Health Insurance (Rescission): MULTIMILLION-DOLLAR VERDICT UPHELD FOR BAD-FAITH RESCISSION, Mitchell v. Fortis Ins. Co., 5 No. 11 Andrews Insurance Bad Faith Litig. Rep. 2, Andrews Insurance Bad Faith Litigation Reporter October 6, 2009
The South Carolina Supreme Court has upheld a multimillion-dollar bad-faith verdict against an insurance company that rescinded the medical coverage of an HIV-positive teenager. Writing for the court, Chief Justice Hoefer Toal said Fortis Insurance Co. spent only a few minutes reviewing the case file before rescinding the policy based on a date entered in error by a physician's assistant.According to the opinion, 17-year-old Jerome Mitchell applied for health insurance through Fortis.

Hurricane Katrina: KATRINA DAMAGE CLAIMS SURVIVE DISMISSAL, Ross v. Republic Fire & Cas. Ins. Co., 5 No. 11 Andrews Insurance Bad Faith Litig. Rep. 3, Andrews Insurance Bad Faith Litigation Reporter October 6, 2009
A Louisiana federal judge has refused to dismiss coverage and bad-faith claims involving damage caused by Hurricane Katrina, finding questions about causation and giving the plaintiff homeowner time to amend his complaint to cure deficiencies. U.S. District Judge Ivan L.R. Lemelle of the Eastern District of Louisiana said the insurer was asking the court to rule on causation, an improper request at this stage of the case.

Legal Malpractice: INSURER LOSES BID TO KEEP SOME DOCUMENTS SECRET, In re Prof'ls Direct Ins. Co., 5 No. 11 Andrews Insurance Bad Faith Litig. Rep. 4, Andrews Insurance Bad Faith Litigation Reporter October 6, 2009
The 6th U.S. Circuit Court of Appeals has refused to vacate an order requiring an insurance company sued for bad faith to produce documents it claims are privileged and subject to the work product doctrine. The work-product doctrine protects materials prepared in anticipation of litigation from discovery by opposing counsel.According to the opinion, Ohio law firm Wiles, Boyle, Burkholder & Bringardner specialized in insurance defense.

Long-Term-Care Insurance: NO BAD FAITH IN LTC INSURER'S PRICING SCHEME, 8TH CIRCUIT SAYS, Rakes v. Life Investors Ins. Co., 5 No. 11 Andrews Insurance Bad Faith Litig. Rep. 5, Andrews Insurance Bad Faith Litigation Reporter October 6, 2009
The 8th Circuit has affirmed summary judgment for an insurance company that was accused of underpricing the long-term-care policies it sold to young, healthy buyers, only to raise rates to unaffordable levels when those policyholders became old and frail. The 8th U.S. Circuit Court of Appeals found that the policies and marketing language warned buyers that rates could increase.According to the opinion, plaintiffs Robert Rakes and Robert Hollander purchased LTC insurance from Life Investors Ins.

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Friday, October 2, 2009

Citigroup GC Has No Sympathy for Law Firms Seeking Premium Fees

From the ABA Journal Law News Now, October 2, 2009:

"The general counsel for Citigroup says his in-house legal department has been battered by the economic downturn, leaving him with little sympathy for law firm arguments for premium fees.

General counsel Michael Helfer, a panelist at an event sponsored by Bisnow, said Citigroup’s in-house legal department has shrunk by about 300 employees over the last few years, many of them felled by layoffs, according to the Washingtonian’s Capital Comment Blog. Compensation for the lawyers who are left has been cut by up to 60 percent.

In such an environment, “The amount of sympathy I have for the argument that $1,000 an hour is a reasonable rate ... is nil,” Helfer said, according to the blog account.

Law firms aiming to please general counsel such as Helfer are agreeing to charge alternative fees. Panelists told of changes. The percentage of revenue from alternative billing is about 10 percent at Arent Fox, about 15 percent to 20 percent at Akin Gump Strauss Hauer & Feld, and about 5 percent to 10 percent at Skadden, Arps, Slate, Meagher & Flom.

Even as law firms move to alternative fees, they hope to maintain partner profits that can average more than $1 million a partner. Akin Gump chairman Bruce McLean acknowledged it won’t be easy, the blog says. “It’s a big challenge,” said McLean. “We’re not so good at that yet.” "

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Tuesday, September 29, 2009

Equal Protection, indigents and the FTC's Red Flags Rule

Lerajjareanra-o-kel-ly, v. Schow,(Idaho App.)
Prisoners - Statute generally requiring indigent prisoners to make at least partial payment of filing fees did not violate equal protection.
In a matter of first impression, the Court of Appeals of Idaho has held that the statutory scheme generally requiring indigent prisoners to make at least partial payment of filing fees, but providing for waiver of such fees in certain cases for indigent non-prisoners, had a rational basis, which was legislature's intent to reduce frivolous prisoner litigation. Thus, the statute governing indigent prisoner filing fees did not violate equal protection.

ABA sues the FTC regarding “Red Flags Rule”
The “Red Flags Rule,” mandated by the 2003 Fair and Accurate Credit Transactions Act, requires that “financial institutions” and “creditors” implement programs to detect, identify and respond to activities that signal possible identity theft. The Federal Trade Commission (FTC) has stated that the term “creditor,” as defined by the act, covers all entities—including lawyers—that regularly provide services or goods before seeking payment. On August 27, the ABA filed a complaint asking the U.S. District Court for the District of Columbia to bar the FTC from applying its “Red Flags Rule,” intended to prevent identity theft, to practicing lawyers.

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Friday, September 25, 2009

Worst of Recession is Over for Law Firms, Says PricewaterhouseCoopers Survey

ABA Journal Law News Now, 9-25-09
Worst of Recession is Over for Law Firms, Says PricewaterhouseCoopers Survey

Posted Sep 23, 2009, 06:46 pm CDT
By Martha Neil

"After the economic carnage earlier this year, financial statistics show law firms were on more solid ground by the summer.

A survey of more than 50 law firms conducted by the PricewaterhouseCoopers accounting firm found that legal work and law firm profits increased during a three-month period that ended on July 31, in part due to internal cost-cutting by the partnerships, reports the Law Society Gazette.

Although certain practice areas, such as real estate, still are struggling, others, such as corporate and mergers and acquisitions, are recovering, David Thurkettle tells the British legal publication. He is a senior director in PwC’s professional partnerships group.

"Firms have weathered the storm in the main. They have got through the cost and the financial pain, and are now reaping the rewards," he says of the survey results, which he believes are probably representative of the situation at other law firms, too. "The view here is that, if you took a basket of different law firms, most of them are over the worst in terms of activity levels." "

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Tuesday, September 22, 2009

Appeals, covenants not to compete, indemnity, loan agreements and mesclun salad with balsamic-grape seed oil mustard vinaigrette

Contracts -- Employment -- Noncompetition covenant -- Enforcement -- Attorney's fees -- Employer who had restrictive covenant with employees cannot recover its attorney's fees from a third party who knowingly aided and abetted the employees' violation of the restrictive covenant -- Conflict certified -- Attorney's fees could not be awarded as matter of equity -- To extent plaintiff sought to recover attorney's fees under section 542.335(1)(k), no such statutory authority exists against a third party who did not sign restrictive covenant -- Third party's defense of suit brought against her by employer is not an “action” challenging the enforceability of a restrictive covenant -- Section 542.16, in which the legislature declared it to be the purpose of the Florida Antitrust Act to complement the body of federal law prohibiting restraints of trade or commerce in order to foster effective competition and declared its intent that the act be liberally construed to accomplish this purpose, does not provide authority for allowing employer to recover fees from third party pursuant to section 542.335(1)(k) -- Application of statute to allow recovery of fees from third party is not dictated by public policy
Reported at 34 Fla. L. Weekly D1892b

Corporations -- Indemnity -- Contracts -- Trial court properly entered summary judgment for former vice-president and general manager of defendant corporation's agency on her claim for indemnification for attorney's fees and costs incurred in her successful defense of criminal charges of money laundering and conspiracy to launder money while acting in her capacity as vice-president -- Summary judgment for plaintiff on indemnification claim was proper because plaintiff was prosecuted “by reason of the fact” that she was an officer of the corporation and was acquitted because she was “successful on the merits or otherwise” -- Trial court properly entered summary judgment for plaintiff on breach of contract claim seeking payment for past wages when she was suspended without pay -- Where corporation's personnel manual provided for suspension of employee only until charges are clarified, once charges against plaintiff were clarified, defendant had option of paying plaintiff compensation required under employment contract or terminating her under one of justified reasons for termination under contract, and defendant did neither
Reported at 34 Fla. L. Weekly D1900a

Dependent children -- Appeals -- Non-final orders -- Post-dependency order denying father's motion for reunification -- Father's notice of appeal and amended initial brief treated, together, as petition for writ of certiorari -- Father made no showing that trial court's decision to deny immediate reunification was an abuse of discretion -- In absence of transcript, appellate court unable to determine whether father adduced evidence that could support any additional findings that would militate in favor of reunification -- Accordingly, father has not shown that trial court's findings of fact were materially inadequate or incomplete, much less that they were departure from essential requirements of law -- Petition for writ of certiorari denied
Reported at 34 Fla. L. Weekly D1881a

Interest -- Prejudgment -- Waiver -- Appeal of judgment providing that prejudgment interest would be awarded by separate order -- Questions certified: Where there has been an agreement on, or no objection to, a reservation of jurisdiction to award prejudgment interest, should the reservation be upheld in order to prevent an injustice notwithstanding the rule in McGurn v. Scott, 596 So. 2d 1042 (Fla. 1992)? -- Where a judgment contains a reservation of jurisdiction to award prejudgment interest, should the appeal of such judgment be treated as a premature appeal under Florida Rule of Appellate Procedure 9.100(l), or must the appeal be treated as accomplishing a waiver of prejudgment interest pursuant to McGurn v. Scott? -- Whether a trial court should be allowed to reserve jurisdiction to award prejudgment interest post-appeal as it can with attorneys' fees and costs?
Reported at 34 Fla. L. Weekly D1902a

Contracts -- Loan agreement -- Guaranty -- Lender's action for nonpayment of promissory note and breach of guaranty -- Discovery -- Order requiring guarantor's wife, a nonparty, to disclose personal financial information that was neither relevant to lender's claims nor reasonably calculated to lead to the discovery of admissible evidence departed from essential requirements of law -- To extent order requires wife to disclose personal financial information, it undeniably violates her right to privacy, and such disclosure may cause irreparable harm that cannot be remedied on appeal -- Lender's argument based on case law involving claim asserted under Uniform Fraudulent Transfer Act is unavailing where lender has neither alleged claim under UFTA nor added putative fraudulent transferee as defendant in pending action -- Lender's claim that inquiry into wife's finances was justified because it had relied on wife's personal assets in reaching decision to make loan is not only unsupported by sufficient record evidence and lacking in credibility, such reliance would not give lender rights it would otherwise lack to obtain discovery from nonparty concerning her personal financial information
Reported at 34 Fla. L. Weekly D1910b

Civil rights -- Torts -- Pretrial detainees -- Correction officers -- Deliberate indifference to serious medical needs -- Cruel and unusual punishment -- Negligent or wanton breach of duties -- Action arising out of pretrial detainee's death, alleging jailer was negligent in fastening detainee to D-ring in jail cell when detainee became increasingly agitated, in failing to ensure that detainee received Librium doses prescribed by medical personnel, and in failing to check on detainee for several hours although detainee was on fifteen-minute observation status; and that jailer falsified close-observation documents to indicate that fifteen-minute checks had been done -- Sovereign immunity -- Alabama law is unclear on whether jailers are entitled to absolute immunity against state law claims -- Question certified to Alabama Supreme court: Are jailers, like sheriffs and their deputies, absolutely immune from state claims for money damages based on actions taken within the scope of their employment?

Reported at 22 Fla. L. Weekly Fed. C136a
Banks -- Torts -- Breach of fiduciary duty -- Negligent misrepresentation -- Injunctions -- Plaintiffs seeking to restrain bank from paying an irrevocable standby letter of credit, which was issued for purpose of paying for the purchase of a luxury motor yacht to be built in China and which named codefendant/contractor's Chinese bank as beneficiary, based on alleged oral misstatements and omissions by bank's employee -- Claim for breach of fiduciary duty by issuing bank must fail where relationship between plaintiffs and this bank was nothing more than lender-borrower -- Plaintiff produced no evidence to support testimony that issuing bank told plaintiff that he would be protected in letter of credit transaction with a stipulation that the letter of credit would only be paid upon completion of the yacht construction -- Where letter of credit contained language requested by and provided entirely by the plaintiff to bank's employee and plaintiff read, approved, and signed the document, reliance on alleged oral representations is unjustified, and claims for negligent misrepresentation and equitable estoppel must fail -- Fraud -- Although letter of credit is normally independent from underlying contract, letter of credit must be rescinded if underlying contract was procured through fraud -- Plaintiffs' claim that Chinese bank engaged in fraud by making loans to contractor without securing those loans with collateral, loaning money to contractor to build a yacht when it knew that contractor did not have the capability of doing so, and lying when it demanded payment on letter of credit by stating that it was indebted to contractor for building the yacht, although yacht was never built, was unsupported by evidence in the record -- Unjust enrichment claim against Chinese bank must fail where plaintiffs presented no evidence that Chinese bank engaged in any wrongdoing -- Moreover, it was equitable for Chinese bank to demand payment on letter of credit where it had loaned money to contractor to finance construction of yacht and money had not been repaid -- Civil conspiracy -- Evidence did not support claim that issuing bank and Chinese bank entered into agreement to defraud plaintiffs of the money they put up to purchase yacht -- Court finds in favor of defendants -- Injunction previously issued by court enjoining payment of letter of credit is vacated and dissolved
Reported at 22 Fla. L. Weekly Fed. D43a

Fair Labor Standards Act -- Overtime -- Settlement -- Extent to which court should inject itself into process of approving FLSA settlements -- Objection to magistrate's report and recommendation, which included recalculation of and reduction of attorney's fees amount using lodestar method -- FLSA settlement which involves a compromise of plaintiff's claims requires court approval -- If parties submit proposed FLSA settlement that constitutes a compromise of plaintiff's claims, makes full and adequate disclosure of the terms of the settlement, including the factors and reasons considered in reaching the same and justifying compromise of plaintiff's claims, and represents that attorney's fees were agreed upon separately and without regard to the amount paid to the plaintiff, then, unless the settlement does not appear reasonable on its face or there is reason to believe that plaintiff's recovery was adversely affected by the amount of fees paid to his attorney, court will approve the settlement without separately considering the reasonableness of the fee to be paid to plaintiff's counsel -- However, if parties can only agree as to the amount to be paid to the plaintiff, the court will continue past practice of determining a reasonable fee using the lodestar approach -- Parties in this case are given leave to amend their renewed joint motion to approve settlement agreement to address whether plaintiff's attorney's fee was agreed upon separately and without regard to amount paid to plaintiff
Reported at 22 Fla. L. Weekly Fed. D51a

Torts -- Defamation -- Counties -- School boards -- Privilege -- Action against school board and elected member/vice-chair of board based on allegedly defamatory statements made at school board meetings and to the media regarding plaintiff, who was terminated from her position as “school board attorney” for alleged misconduct in accepting moving expense allowance, although she never moved -- School board member enjoys absolute privilege with respect to all of the alleged statements where the alleged defamatory statements were made in connection with the performance of her official duties and responsibilities
Reported at 22 Fla. L. Weekly Fed. D54a

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Wednesday, September 16, 2009

Latest on healthcare reform legislation

This morning Senate Finance Committee Chairman Max Baucus (D-MT) introduced healthcare reform legislation, America’s Healthy Future Act of 2009. Because of its significance to our shared interest in health law, below is a link to the bill so you access it immediately. The text of this bill is available at: 2009/091609 Americas_Healthy_Future_Act.pdf

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Tuesday, September 15, 2009

Insurance, autism screening, arbitration, health law, foreclosure and a dash of salt

Florida Insurance - General - State Bill Tracking
2010 Florida House Bill No. 107 112th Regular Session (SUMMARY - NETSCAN)
Autism; Requires that physician refer minor to appropriate specialist for screening for autism spectrum disorder; requires certain insurers & HMOs to provide direct patient access to appropriate specialist for minimum number of visits per year for screening, evaluation, or diagnosis of autism spectrum disorder. EFFECTIVE DATE: 07/01/2010
2010 FL H.B. 107 (NS)

Tuesday, September 15, 2009
Wrongful Death: ARBITRATION CLAIM: LUNG TRANSPLANT PATIENT BLED TO DEATH AFTER NURSE REMOVED CLAMP, 5 No. 8 West's Medical Malpractice Law Report 1, West's Medical Malpractice Law Report September 14, 2009
A Maryland man who underwent successful bilateral lung transplant surgery bled to death after a nurse accidentally removed a clamp, according to documents filed with a state health claims arbitration panel. The claim filed on behalf of Bryan DeWitt Harris by his wife, Denise, also accuses the hospital of trying to cover up the true cause of his death. Denise Harris filed the claim with the Maryland Health Claims Alternative Dispute Resolution Office.

Medication Error: MEDICATION ERROR FORCED BIRTH INSTEAD OF STOPPING IT, SUIT SAYS, Comerica Bank v. Tenet Healthcare Corp., 5 No. 8 West's Medical Malpractice Law Report 2, West's Medical Malpractice Law Report September 14, 2009
A Florida woman who was admitted to the hospital to prevent premature labor says she was given an abortion medication instead of a drug to help maintain her pregnancy, causing her to deliver her premature baby into a bedpan. Tesome Sampson's daughter Traniya Guy survived the premature delivery at 24 weeks but was left severely brain-damaged, according to the suit filed in the Palm Beach County Circuit Court.

Birth Injury: 'ERROR OF JUDGMENT' CHARGE NOT PROPER IN PA. MED-MAL TRIALS, Pringle v. Rapaport, 5 No. 8 West's Medical Malpractice Law Report 3, West's Medical Malpractice Law Report September 14, 2009
A Pennsylvania appellate court has ruled that the "error of judgment" jury instruction should not be given in medical malpractice cases since it "confuses, rather than clarifies the issues a jury must decide." The 7-2 Superior Court ruling means that Dennis and Christine Pringle will get a new trial in their lawsuit against Dr. Adolfo Rapaport, whose allegedly negligent delivery of their son Austin resulted in injuries to his right arm.

Adoption -- Termination of parental rights of unmarried biological father of child pending adoption -- Consent -- Error to enter summary judgment terminating biological father's parental rights based on father's failure to file claim with Putative Father Registry and pledge of commitment to child where father was not given timely notice of and opportunity to preserve his parental rights -- Notice was untimely where it was not provided to father until after petition for termination of parental rights was filed
Reported at 34 Fla. L. Weekly D1859a

Civil procedure -- Discovery -- Deposition of opposing counsel -- Action against physician alleging that defendant failed to bill plaintiff through insurance network rather than through arrangement whereby defendant had been paid by plaintiff's attorney in separate litigation involving plaintiff's injury in a traffic accident -- Trial court did not depart from essential requirements of law in denying defendant's motion to disqualify plaintiff's counsel where counsel was not a necessary witness in claim against defendant, but court did depart from essential requirements of law in denying defendant's motion to compel deposition of plaintiff's counsel where counsel qualifies as a material witness in claim against defendant
Reported at 34 Fla. L. Weekly D1871a

Dissolution of marriage -- Contempt -- Enforcement of marital settlement agreement whereby former husband agreed to pay certain expenses incurred by child in lieu of conventional monthly child support -- Where agreement provided that former husband would pay certain of child's expenses until he reached age eighteen or twenty-one, but provided that former husband would pay child's tuition and related education expenses while child is enrolled as a full-time student, without specifying an ending date, trial court erred by finding that provision regarding payment for educational expenses such as books, school supplies, computer software and routine automobile maintenance is ambiguous and unenforceable because the provision contains no ending date -- Attorney's fees -- Court did not abuse discretion in denying former wife award of attorney's fees where parties have similar financial ability to obtain counsel
Reported at 34 Fla. L. Weekly D1870b

Mortgage foreclosure -- Appeal from post-judgment order denying motion to vacate was premature where trial judge stamped motion “denied” and affixed his signature and date to motion, but there was no indication that this “order” was rendered by filing it with the clerk after judge had signed it, as required by rule 9.020(h) -- Jurisdiction relinquished for proper rendition of order -- Courts discouraged from using rubber stamps to rule on motions -- To enable meaningful appellate review, trial court to provide basis for denying motion to cancel sale, which was also stamped “denied” but never rendered, and motion to vacate sale
Reported at 34 Fla. L. Weekly D1866b

Torts -- Veterinary malpractice -- Claim arising out of physical ailments suffered by plaintiff's dogs after defendant veterinarian recommended and administered a new heartworm medication to dogs -- Claim regarding administration of heartworm medication was barred by settlement and release executed between plaintiff and manufacturer of heartworm medication -- Release was not rendered unenforceable because it did not expressly reference negligence -- Requirement that a preclaim exculpatory clause must state that it releases party from liability for his own negligence is inapplicable in case of a postclaim release -- Reference in release to “all other persons, corporations and entities” applied to defendant for claims resulting from sale, use or administration of heartworm medication -- Although summary judgment for defendant was proper as to claims arising out of administration of heartworm medication, it was error to enter blanket summary judgment as to claims not within the scope of the release
Reported at 34 Fla. L. Weekly D1861a

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Friday, August 28, 2009

Kitchen ware and 25 Years of the Sentencing Guidelines

From The Third Branch, August 2009

The U.S. Sentencing Commission has had four chairs since 1984, all federal judges. Judges William Wilkins, Richard Conaboy, Diana Murphy and Ricardo Hinojosa reflect on 25 years in the development of the sentencing guidelines. More.

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Wednesday, August 26, 2009

Cold vanilla ice cream with chocolate espresso beans, arbitration, attorneys fees and dangerous instrumentalities

Waiving arbitration through active participation in litigation -- Neither filing of motion to dismiss nor filing of answer that failed to include a demand for arbitration constituted active participation in litigation that would result in waiver of right to arbitration -- Trial court did not err in directing parties to comply with arbitration agreement
Reported at 34 Fla. L. Weekly D1591b

Dangerous instrumentalities -- Farm tractor is not a dangerous instrumentality
Reported at 34 Fla. L. Weekly D1591a

Workers' compensation and intoxication -- Claimant injured when he slipped and fell on pile of lumber when he continued working despite having been told by his supervisor that he was discharged and should wait at the work site, which was remotely located, for a ride home -- Judge of compensation claims erred in finding that accident did not arise out of or within course and scope of employment because claimant's actions taken after being fired were not in furtherance of his employment or incidental thereto -- Discharged employees have reasonable time in which to leave employer's premises safely, and injuries incurred during that time are compensable -- However, error was harmless where JCC properly concluded that claimant was not entitled to compensation because injury was primarily occasioned by claimant's intoxication
Reported at 34 Fla. L. Weekly D1592a

Attorney's fees -- Agreement between attorney who was suspended from practice of law and law firm, under which law firm assumed responsibility for attorney's cases and agreed to pay attorney at an hourly rate for paralegal work performed after date of agreement and on a quantum meruit basis for work performed before attorney's suspension when cases concluded -- Trial court erred in entering summary judgment for defendant law firm in attorney's action alleging that law firm had failed to pay him any quantum meruit payments after attorney had filed petition for disciplinary resignation, which Florida Supreme Court granted with notation that disciplinary resignation was tantamount to disbarment -- Attorney is seeking to enforce written contract, and nothing in contract provides that attorney's disciplinary resignation or disbarment would result in forfeiture of contract rights -- Florida Supreme Court decision, holding that an attorney who withdraws from representation before contingency has occurred forfeits all right to compensation, is inapplicable to action seeking to enforce contract
Reported at 34 Fla. L. Weekly D1611a

Mutuality of remedy and illusory -- Trial court erred in finding that an absence of mutuality of remedies rendered contracts illusory and unenforceable -- Although contractual remedial limitations favored developer/seller, in that developer/seller could retain buyers' deposits as liquidated damages or bring action for specific performance upon buyers' default, whereas buyers could not seek damages, but could obtain return of their deposits or bring action for specific performance upon developer/seller's default, the absence of mutuality of remedies did not destroy the validity of the agreements
Reported at 34 Fla. L. Weekly D1614a

Sexual harassment -- Retaliation -- Harassment in the form of offensive language can be based on plaintiff's membership in a protected group even though she was not the target of the language -- Offensive language need not be targeted at the plaintiff in order to support a claim of hostile workplace environment -- Trial court erred in granting directed verdict for defendant employer
Reported at 34 Fla. L. Weekly D1604a

Blood sample -- In action against defendant whose car collided with decedent's car when defendant passed out while driving, trial court departed from essential requirements of law in granting plaintiff's request to test, for the presence of a prescription cough medication, the surviving portion of defendant's blood sample which had been given to law enforcement to be analyzed for alcohol content and the presence of controlled substances -- Request to test human bodily fluids in civil action must satisfy requirements of Rule of Civil Procedure 1.360, “Examination of the Person” -- Plaintiff offered no evidence of how the presence of prescription cough medication in defendant's blood at time of accident might relate to defendant's negligence, the matter “in controversy” -- Plaintiff failed to show good cause for test
Reported at 34 Fla. L. Weekly D1612a

Asylum -- Withholding of removal -- Board of Immigration Appeals failed to give reasoned consideration to evidence that alien, an Iranian who had converted from Islam to Christianity, has well-founded fear of persecution based on his religion -- Although there was evidence that law against apostasy is not often enforced in Iran, neither Board nor immigration judge considered alien's testimony that Iranians who convert from Islam to Christianity avoid punishment by instead suffering persecution by practicing underground -- Board and the IJ also failed to consider whether the Iranian regime has a heightened interest in alien that makes it more likely that his conversion will be discovered -- Substantial evidence supports decision of the Board that alien failed to prove a well-founded fear of persecution based on his political opinion
Reported at 22 Fla. L. Weekly Fed. C28b

Adoption -- Biological father -- Unmarried biological father is not required to file a verified response to notice of intended adoption plan under section 63.062(3) in addition to an affidavit under section 63.062(2) -- Section 63.062(3) dictates actions of adoption agencies, not unmarried biological fathers -- Trial court erred in concluding that both affidavit and verified response were required -- Trial court erred in ruling that father's notarized letter did not satisfy affidavit requirement because father did not take oath when he signed the letter -- Substantial compliance with statute, not strict compliance, is required -- Father's timely filing of notarized letter containing the words “sworn and subscribed” within thirty days of receiving the notice of intended adoption plan, and his filing of affidavit curing defect in his original letter on the same day that the defect was brought to the court's attention, were sufficient to substantially comply with affidavit requirement -- Remand for further proceedings to determine whether father has complied with remaining provisions of Chapter 63
Reported at 34 Fla. L. Weekly D1618a

Asylum -- Withholding of removal -- United Nations Convention Against Torture -- Chinese citizen claiming she suffered persecution by Chinese government on account of her religious beliefs based on her participation in unauthorized Christian house church and that she feared persecution should she return to China -- Due process -- Immigration judge's decision to exclude evidence offered for submission after court-ordered filing deadline is discretionary -- Because alien did not have constitutionally protected liberty interest in admission of evidence after court-ordered deadline, she cannot establish a due process violation based on the IJ's decision to exclude several statements from family and friends which alien sought to have admitted after filing date set by IJ -- Credibility findings -- Remand is appropriate to enable Board of Immigration Appeals or IJ to reevaluate its decision to deny aliens' applications in this case and its credibility determinations in light of court's opinion and in light of medical records which corroborated the majority of her testimony regarding brutal beatings she received in China
Reported at 22 Fla. L. Weekly Fed. C45a

Discovery -- Subpoenas duces tecum -- Motion to compel compliance with subpoenas and for sanctions granted -- Condominium association shall allow process server access to condominium complex so service can be attempted on all unit owners not already served with subject subpoenas -- Association is prohibited from interference with service of subject subpoenas by posting notices or otherwise -- Failure to comply with order may result in imposition of sanctions
Reported at 22 Fla. L. Weekly Fed. D7a

Employment discrimination -- Speech -- Public employees -- Retaliation -- Assistant state attorney who was responsible for prosecuting homicide cases within Office of State Attorney filed single-count action under 42 U.S.C. section 1983 against defendants, who had supervisory authority and responsibility for discipline of personnel within SAO, alleging his suspension without pay was in retaliation for exercise of his First Amendment rights to free expression in posting on his blog a memo he had written about handling of ongoing police shooting investigation -- Qualified immunity -- Defendants are entitled to qualified immunity because plaintiff cannot establish as a matter of law that he suffered a violation of his clearly established First Amendment rights when he was suspended by his employer where there were legitimate grounds for the adverse employment action -- Matter of public concern -- Content, form, and context of plaintiff's speech, as informed by whole record, demonstrates that plaintiff's speech touches on matter of public concern -- Balance of plaintiff's interest and employer's respective interests weigh in favor of plaintiff, without a more particularized showing of harm to SAO's ability to administer its duties efficiently -- Plaintiff raised genuine issue of material fact to preclude summary judgment on issue of whether defendants suspended plaintiff in substantial part because of plaintiff's publication of memo on a public blog, where reasons for plaintiff's suspension as set forth in Notice of Disciplinary Action specifically included the publication of memo -- Defendants are entitled to summary judgment on retaliation claim because they demonstrated an absence of a genuine issues of material fact as to whether plaintiff would have been suspended without pay but for public posting of memo and that there were other legitimate reasons for adverse employment decision, including disclosure of other internal emails related to police shooting investigation after plaintiff was informed that the investigation was open and that those materials are confidential, display of a lack of candor to plaintiff's superiors regarding approval of expenses for retention of an expert witness, and inappropriate conduct before state court judge -- Because defendants had legitimate grounds for adverse employment action, plaintiff could not establish that he suffered violation of his First Amendment rights when he was suspended without pay
Reported at 22 Fla. L. Weekly Fed. D1a

Contracts -- Discount e-commerce company that sells dietary supplements and personal health care items brought breach of contract action against product manufacturer after manufacturer terminated dealer agreement with plaintiff, apparently on premise that products were being sold, though not advertised, at a discount greater than allowed under parties' minimum retail price agreement -- Breach of contract -- Claim alleging contract was breached when defendant terminated dealer agreement fails to state a claim, because contract was based on a series of purchase orders, each purchase order was a separate and completed contract that created no continuing obligation, and as a result defendant could terminate the relationship at any time -- Even if parties had single contract that provided for successive performances, plaintiff did not state a claim for breach of contract because a contract for successive performances that is indefinite in duration may be terminated at any time by either party -- Promissory estoppel -- Dismissal of claim for promissory estoppel is warranted where plaintiff has asserted a contract based on the series of purchase orders and has not provided any argument as to why an equitable remedy should be available when it has pointed to an express contract -- Promissory estoppel is not available as a remedy when the parties have a written contract addressing the relevant issues -- To extent plaintiff alleges oral representations that contemplated additional terms, it has not explained why they would not be barred by statute of frauds, since terms were for over one year -- Good faith and fair dealing -- Claim for breach of covenant of good faith and fair dealing must be dismissed because plaintiff failed to identify the express term of contract breached by defendant -- Allegations that plaintiff reasonably relied on representations that defendant would always supply its products and that it expended resources as a result are insufficient to state a claim for breach of covenant of good faith and fair dealing -- Equitable estoppel -- Claim that defendant should be equitably estopped from cutting off plaintiff's sales and benefitting from plaintiff's marketing and promotional efforts fails and should be dismissed because equitable estoppel is a defense, not a cause of action -- Antitrust -- Claims for violations of federal and state anti-trust laws based on Section 1 of Sherman Act fail to state a claim because plaintiff failed to make any allegations as to an agreement between manufacturer and another party to set resale prices -- A product manufacturer may unilaterally announce its resale prices without committing an antitrust violation -- Even if an agreement had been alleged, any allegations that MRP program is unreasonable in that it goes too far in restraining trade and is tantamount to price fixing are merely conclusory and thus not sufficient to survive motion to dismiss -- Further, mere allegation that plaintiff was forced under duress to comply with manufacturer's demand in order to avoid termination is insufficient to raise claim from mere acquiescence to duress -- Plaintiff may be allowed leave to amend
Reported at 22 Fla. L. Weekly Fed. D9a

Insurance -- Rescission of life insurance policies -- Complaint by life insurance company alleging that defendants collaborated in scheme to recruit elderly applicants for life insurance policies which were never meant to be retained by insureds or their family members, but were paid for and held by outside investors, including defendant trusts organized in Illinois -- Jurisdiction -- District court has jurisdiction over out-of-state defendants because they are alleged to have engaged in a civil conspiracy, at least one act in furtherance of which was done in Florida -- Further, amended complaint properly states claims against trust and trustee defendants for rescission of insurance policies pursuant to state law and for lack of insurable interest, and for fraud, civil conspiracy, and aiding and abetting civil conspiracy -- Motion to dismiss denied
Reported at 22 Fla. L. Weekly Fed. D8a

Contracts -- Condominium purchase -- Rescission -- Error to enter summary judgment granting rescission on ground that contract lacked mutuality of obligations and mutuality of remedies -- Although paragraph reserving to seller the right to unilaterally rescind contract for sale of condominium if the decision was made not to submit the entire project to declaration of condominium created a contract that lacked mutual obligation, this deficiency was cured when seller submitted the entire condominium project for declaration of condominium by recording the necessary legal documents and closing on other units, after which seller no longer had unilateral right to rescind contract -- Further, seller constructed unit as called for by contract, obtained certificate of occupancy, and provided closing documents indicating that seller was ready, willing, and able to perform and, thus, any lack of mutuality of obligation at inception was cured -- Contract did not lack mutuality of remedy where the only condition that limited buyer's remedy to return of his deposit plus interest was if seller breached the contract for other than a “willful” breach, and contract otherwise provided reasonable remedy for purchaser upon seller's willful breach
Reported at 34 Fla. L. Weekly D1623a

Creditors' rights -- Post-judgment discovery -- Where judgment debtor had posted $50 million supersedeas bond to stay execution, the maximum bond permitted by section 45.045, Florida Statutes, but the bond amount was less than the principal amount of the judgment, judgment creditor was entitled to engage in discovery for the limited purpose of determining whether judgment debtor has dissipated or diverted assets outside the course of its ordinary business or is in the process of doing so -- Trial court erred in issuing blanket denial of judgment creditor's request to compel judgment debtor to comply with post-judgment discovery
Reported at 34 Fla. L. Weekly D1648a

Mortgage foreclosure -- Usury -- Rehearing -- Trial court abused discretion in denying mortgagor's motion for rehearing where (1) mortgagee moved for summary judgment seven days after mortgagor, who was unrepresented by counsel, was granted extension of time to obtain counsel and answer complaint, (2) attorney who received pro bono referral package appeared at hearing and requested continuance, explaining that he had not yet spoken to mortgagor and therefore could not file notice of appearance, (3) trial court denied request to continue hearing, (4) pro bono counsel subsequently filed notice of appearance and timely motion for rehearing, raising several issues, (5) trial court did not address issues articulated by mortgagor in motion for rehearing, (6) final summary judgment of foreclosure indicates that mortgagor was charged interest at an annual rate of 18% plus a 7% prepayment penalty, and (7) trial court failed to resolve legal issue of whether the 7% prepayment penalty qualifies as additional interest upon default, and if it does, when added to the 18% interest charged by mortgagee, is the total interest charged upon default usurious and unlawful
Reported at 34 Fla. L. Weekly D1650a

Negligent misrepresentation -- Deceptive and unfair trade practices -- Dispute arising from sale and purchase of land zoned as Planned Unit Development in which seller provided buyer's broker with site survey and site plan which demonstrated that 218 units could be built on the property, but which failed to disclose recorded drainage easement which would preclude building the 218 units -- Where buyer's counsel asked for a bifurcation of contract or extension of due diligence period because of several concerns, including whether fewer than 218 units could be built on the property and stated that if request was not granted, the contract would be terminated; seller did not respond and treated letter as termination of contract; buyer claimed that counsel lacked authority to terminate contract and stated its intention to move forward with purchase; and parties entered into a reinstated contract which provided that seller made no representations regarding governmental approvals and expressly removed any references to the “Intended Use” of 218 units on the property, buyer could not justifiably rely on any representations from seller concerning government approvals and the number of units that could be built on the property -- Error to deny seller's motion for directed verdict
Reported at 34 Fla. L. Weekly D1633a

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