Did any of you know that J.B. Harris once worked at United Auto?

I didn't, but according to this 11th Circuit opinion his tenure as in-house counsel was apparently pretty brief.

Once he stopped working there, he continued to maintain his own health insurance coverage through COBRA -- which if I'm not mistaken is an early, more euphemistic government variant to the Obama Death Panels.

But then his wife and a possible "part-time" mailman entered the picture:

Harris asserts that his wife placed the payment in the mailbox on February 11, 2008, but the envelope containing the payment was not post-marked until February 12. According to the complaint, Harris’s wife

either inadvertently [placed the check in the mailbox] after the mail carrier had made his rounds. Or the envelope was picked up that day and post-marked a day later – February 12, 2008 – a real possibility in some areas of South Carolina – like where Mrs. HARRIS lives – because the postal service often employs part-time mail carriers, who use their own vehicles to deliver the mail, and the mail could have gotten delayed, misplaced or even left in the carrier’s car overnight, before making its way to the post office the next day to be postmarked.

Because the envelope was not received within the time period for payment and was postmarked one day after the end of the grace period, Ceridian terminated Harris’s COBRA coverage. Harris attempted to resolve this with UAIG and Ceridian, but they refused to reinstate his coverage.

Ain't health care fun in America?

BTW, I'm pretty sure I recognize that mailman -- not only did he deliver the mail to Mrs. Harris, but I'm pretty sure he also delivered the mail to Chevy Chase in Funny Farm.

See, I knew it would some day pay off to rewatch those subpar 80s comedies over and over and over again.

This is a pretty clever resolution to an arbitration problem that was just affirmed by the 11th Circuit.

Problem was some monies were not properly credited to one of the arbitrating parties because the issue was not discovered until after the arbitration award.

What to do?

According to the 11th Circuit, the procedure adopted by the district court was kosher -- move for a judgment confirming the arbitration award, then seek to have the judgment modified under Rule 60(b)(5).

Huh?

It actually makes some sense, and I urge everyone to read the thoughtful opinion.

I told you we had some smart judges within the 11th Circuit!

I know I do.

That's why I enjoyed this new 11th Circuit opinion that wades into the sometimes-murky waters of enforceability of noncompetes in Florida:

In 1996, Florida adopted Fla. Stat. § 542.335, which "contains a comprehensive
framework for analyzing, evaluating and enforcing restrictive covenants contained
in employment contracts." Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1262 (Fla.
Dist. Ct. App. 2009). For a restrictive covenant to be valid, "[t]he person seeking
enforcement of [the] restrictive covenant shall plead and prove the existence of
one or more legitimate business interests justifying the restrictive covenant." Fla.
Stat. § 542.335(1)(b). Section (1)(b) of the statute enumerates a non-exhaustive
list of "legitimate business interest[s]." Among these are: (1) "[v]aluable
confidential business or professional information that otherwise does not qualify
as trade secrets"; (2) "[s]ubstantial relationships with specific prospective or
existing customers, patients, or clients"; and (3) "[e]xtraordinary or specialized
training."

In addition, to be enforceable, restrictive covenants must be reasonable with
regard to time, area and line of business. Fla. Stat. § 542.335(1). Once an
employer establishes a prima facie case that the contractually specified restraint is
"reasonably necessary to protect the legitimate business interest[s] . . . justifying
the restriction," the burden of proof shifts to the employee to show that "the
contractually specified restraint is overbroad, overlong, or otherwise not
reasonably necessary to protect the established legitimate business interest[s]."
Fla. Stat. § 542.335(1)(c). If the court finds that the "contractually specified
restraint is overbroad, overlong, or otherwise not reasonably necessary to protect
the legitimate business interest[s]," the court is required to "modify the restraint
and grant only the relief reasonably necessary to protect such interest or interests."
Id.

Ooh baby, keep on singing that sweet song, I could listen to it all night long.

Seriously, though, despite this very straightforward hornbook statement by the 11th, here is yet another area of Florida law needlessly messed up and complicated by years of crappy opinions and imprecise or thoughtless language by DCAs across the state.

But hey, it's Florida, that's how we roll.

Anyone know who the district judge was on this?

Sheesh, I didn't even know I had a "gap period," but the 11th ruled today that FedEx employees cannot proceed on a class-wide basis for failing to be paid during their "gap period."

A fairly standard opinion, though I think they went off the rails a bit on the quantum meruit ruling.

Still, for many of us the question is what work did we do during our "work period":

Time spent on social networking sites has doubled in only a year, according to a 2009 study by Nielson Online. Time spent on Facebook has jumped to 13.9 billion this year as opposed to 1.7 billion last year, which is a 700 percent increase.

Twitter saw a 3,712 percent year-over-year increase between this year and last and Myspace users spent 384 million minutes viewing videos on the site.

Kids these days, right? Well, not so fast. According to the study, the greatest growth for Facebook has come from the 35-to-49-year-old demographic. Not to mention, twice as many 50-to-64-year-olds created profiles for the site than the under-18 age group.

You know Facebook is no longer cool when the parents are way more active on it than the kids.

Finally, for you Jack Thompson junkies, if you were curious to know his views on Professor Gates' arrest, his column is here.

Hi kids, yes it's Friday and yes I'm packing it in early. In fact, I'm taking the whole day off.

I hope you all get to sneak out early today too.

Did you all see this 11th Circuit opinion released yesterday on "late" discovery and amending the pleadings?

First of all, I love the name -- Southern Grouts.

Nothing namby-pamby like "Twombly" -- this is a Venetian Salami-worthy casename, ready to stand the test of time!

In a nutshell, the plaintiff took a corporate rep deposition after the date to amend pleadings, then sought to amend the complaint one month later, citing "new" discovery obtained at the deposition.

The district court refused, and it was affirmed by the 11th, in a pretty tough opinion. As part of the litany of reasons plaintiff's counsel lacked "diligence" on this issue, the 11th even noted that the corporate rep depo was moved once by plaintiff's counsel. That plus "waiting" a month to amend.

While overall I understand the court's affirmance, especially since plaintiff's counsel may have already had this information, I wonder whether the opinion is a bit too rarefied and perhaps lacks an appreciation of real-life practitioner concerns and how litigation unfolds in a busy law office on a daily basis.

Is moving to amend one month after an important deposition "waiting"? It takes some time to even get the transcript, then you have to amend the complaint and draft the motion. I don't know how much actual "waiting" was involved.

And depos are often rescheduled -- particularly important ones like a 30(b)(6), for reasons that have nothing to do with whether or not the lawyer really wants to take the deposition.

That said, I do agree that if you are already outside the amendment deadline you need to move quickly and probably should not be rescheduling the deposition except for emergencies.

In all, the opinion is worth a read to keep us all aware of how important these deadlines can be, and what "good cause" is and isn't to the 11th nowadays.

Hmmm, maybe I'll come in this morning after all.

Ok, now I'm officially worried -- I'll check in with you all later today.

Did anybody else watch Manhattan on TCM last night?

And another thing -- where is everybody? Judges are on vacation, lawyers are gone for the hills, everything is getting rescheduled or postponed.

So let's talk Walkman.

I remember when the Walkman first came out, some 30 years ago this week.

Oh how hip and cool to have one on the school bus, or at the mall, or while jogging.

I see the BBC gave one to a 13-year old, and here is his review:

As I boarded the school bus, where I live in Aberdeenshire, I was greeted with laughter. One boy said: "No-one uses them any more." Another said: "Groovy." Yet another one quipped: "That would be hard to lose."

My friends couldn't imagine their parents using this monstrous box, but there was interest in what the thing was and how it worked.

In some classes in school they let me listen to music and one teacher recognised it and got nostalgic.

It took me three days to figure out that there was another side to the tape. That was not the only naive mistake that I made; I mistook the metal/normal switch on the Walkman for a genre-specific equaliser, but later I discovered that it was in fact used to switch between two different types of cassette.

That's right, kid -- your Dad's Supertramp cassette has two sides, and the Walkman will eventually eat both.

It's a good thing we have so much franchise litigation here in South Florida. Like the cruise line stuff, all the contracts have SD FL venue provisions (which keep us happy and well-fed).

Here's a rather tough ruling by the 11th, affirming Judge Cooke's grant of summary judgment to BK over a franchisee's failure to comply with the "value menu" and holding that they failed to request a waiver in writing.

The appellants argued that BK waived the requirement that a request for an exemption to the value menu be made in writing, and argued that there was a genuine issue based on various emails, letters, and a meeting held between BK representatives and the franchisees and their lawyer.

The 11th said nope:

Here, there is scant evidence regarding a meeting between Mr. Sadik and
BKC representatives at which they discussed Appellants’ eligibility for a Value
Menu exception - too scant to create a genuine issue. Appellants have not alleged
when exactly the meeting was, where it was held, who specifically attended, what
the attendees said, or what sort of information was exchanged. Indeed, although
Mr. Sadik referred to such a meeting in an affidavit, he said only this: “I met with
the FBL and other BKC representatives and explained to them that the Value Menu
was going to drive me into insolvency . . . .” D.E. #115-2. Further, he stated:
“[t]hese BKC representatives told me that they were going to report back to BKC
corporate and then give me an answer as to whether or not I would be excepted
from the Value Menu (as in line stores qualify, and my stores were in line stores).”
Id.12

In contrast to Appellants’ vague evidence of a meeting in which BKC
waived its written request requirement, every communication in evidence from
BKC to the Sadiks on this topic invoked that requirement.13 Indeed, as is apparent
from Ms. Doan’s email exchange with Mr. Griffin, as late as April 22, 2006 BKC
representatives still assumed any Value Menu exception would be requested in
writing. On that date, Ms. Doan wrote to Mr. Griffin: “I asked the [DVP], the local
business person and the local marketing person and nothing was submitted to them.
Can you tell me where [the Sadiks] sent the exemption request?” Mr. Sadik also
admitted in his deposition that no one ever told him not to submit a written request.
We find there is simply not enough evidence to create a genuine issue as to
whether BKC waived its requirement that the Sadiks request a Value Menu
exception in writing.

I don't know if I agree with this ruling based on the evidence presented by the appellants, but I'm happy Judge Cooke got a straight affirmance without any sturm und snark by the 11th.

Now, about Tracy's face.......

Hi kids -- why have you not started your vacation yet?

For those of you who read this crappy blog to get some update on, you know, legal matters, here is an interesting 11th Circuit opinion that affirms a Georgia district court decision to dismiss a negligence action against Halliburton on political question grounds:

At issue today is whether the district court erred in dismissing the plaintiff’s
negligence suit arising out of an accident in which her husband, a sergeant in the
United States Army, was severely injured in May 2004 while serving as an armed
escort for a large military convoy traveling through a war zone in Iraq. The district
court held that the suit was non-justiciable on political question grounds and
dismissed the case for lack of subject-matter jurisdiction. On appeal, the plaintiff
contends that the suit does not implicate the political question doctrine because a
civilian contractor, and not the military, was responsible for the accident.

After thorough review, we conclude that adjudicating the plaintiff’s claims
would require extensive reexamination and second-guessing of many sensitive
judgments surrounding the conduct of a military convoy in war time -- including
its timing, size, configurations, speed, and force protection. In addition, we can
discern no judicially manageable standards for resolving the plaintiff’s claims.
Accordingly, we hold that the political question doctrine bars the plaintiff’s suit,
and we affirm the district court’s dismissal for lack of subject-matter jurisdiction.

This is a disappointing decision in some respects, but I can't say it was wrongly decided.

It's pretty weird when you think about it to have the United States Army, while at war, contract out its "force protection" to a private business in a war zone, but what do I know -- weren't the Minutemen a wholly owned subsidiary of BFSC (Ben Franklin Security Services)?

Face it, you guys can't go more than a few hours without thinking about Barry Mukamal.

I know I can't.

Sometimes it's almost like a weird kismet, I can be walking down the street or having lunch at the Bankers Club, not planning at all to think about Barry, when suddenly -- BOOM -- there he is!

True story -- one time I even thought of Barry while I was windsurfing.

What the hail is it about this guy?

Well, even the 11th Circuit has Barry on its mind, as it entered a pretty interesting order affirming The Power of Barry.

The question before the Court was whether a debtor's efforts to consolidate debt among credit cards constituted a "preferential transfer" or merely bank-to-bank transfers among creditors.

Even though there was not much at stake, Barry as trustee was not about to let that money escape:

The decisions of the Bankruptcy Court and District Court are affirmed. The
transfer of credit card funds to pay Egidi’s debt owed to MBNA now BOA, which
occurred within 90 days of the bankruptcy petition, was a preference subject to
avoidance by the trustee under 11 U.S.C. § 547(b) and were not subject to
earmarking. The trustee was entitled to judgment in his favor in the amount of the
transfer, $16,065.00.

Allow me to translate all that bankruptcy gobblygook: You Don't Mess With The Mukamal.

Well it sure is flattering to read some of your mail.

Good thing I can see that what might be perceived by a more thin-skinned civil law blogger as a vicious or derogatory insult is in fact just a playful, perhaps flirtatious effort at getting to know me better.

Note to a certain H&K associate who emailed me on Tuesday -- yes, yes, and if you think such a thing is feasible -- definitely yes.

And while many of you have some very interesting story ideas, all I can say to J.K. in Kendall is the NYT already beat me to it -- it turns out AT&T did in fact rig the Kris Allen "victory" on American Idol.

Don't worry -- the Times will get to that torture expose someday, I'm sure.

Meanwhile, I took one of you up and actually took the time to see what the 11th Circuit did recently and -- lo and behold -- they actually issued an interesting opinion today.

The case, Shirley Williams v. Mohawk Industries, Inc., deals with allegations by a class of employees that an employer systematically worked with temp hiring agencies to hire illegal laborers and thereby injured the rest of the employees by depressing their wages in violation of RICO.

That's good old-fashioned American ingenuity!

At issue was the district court's denial of class certification, which found there were not enough common issues, too many individual issues, that the plaintiffs were not typical, you get the picture.

The 11th reversed, and noted that -- unlike Title VII claims -- under Klay v. Humana, RICO claims are often susceptible to common proof. The court found there were common questions relating to whether the employer had violated GA or the federal RICO statute.

The court also found that the district court abused its discretion in holding that the plaintiffs' claims were not typical. The defendant had argued that the representative plaintiffs only worked at a few places, and therefore were not "typical" of the class as a whole:

Jones and Pelfrey allege that Mohawk conducted the affairs
of an enterprise by hiring illegal labor, which depressed the employees’ wages.
This claim is typical of the claims of other members of the class because the claims
are based on the same legal theory. Because the employees’ claim is that the hiring
of illegal aliens by Mohawk depressed the wages of all legal hourly workers
regardless of location, whether the two class representatives worked at a few
locations is irrelevant. Although this legal theory may ultimately not be sustained
by the evidence, it is typical of the class of which Jones and Pelfrey are
representative.

Relying on Klay, the 11th also found that in RICO cases the overriding common issues will usually establish predominance:

In Klay, we explained that “the common issues of fact [in a RICO action],
concerning the existence of a[n enterprise and] a pattern of racketeering activity . .
. are quite substantial. They would tend to predominate over all but the most
complex individual issues.” 382 F.3d at 1258–59. “It is primarily when there are
significant individualized questions going to liability that the need for
individualized assessments of damages is enough to preclude 23(b)(3)
certification.” Id. at 1260.

Finally, the 11th held that the manageability requirement is usually established where predominance has been found, and remanded to the district court for a renewed manageability analysis focusing on the plaintiffs' claims of common proof as to damages.

Ok kids, you can now bill 4.8 hours on "professional development -- review new 11th Circuit opinion on RICO" -- all for visiting this crappy blog!

So I checked the 11th Circuit website just to see if they have issued any orders yet overturning today's Liberty 6 convictions, but so far nothing.

But I did see this interesting opinion issued today regarding a man from Togo who was seeking withholding of removal and for relief under the United Nations Convention Against Torture.

Good thing 9th Circuit Judge Bybee was not sitting by designation because this crybaby barely got any "enhanced interrogation" and somehow the 11th still finds it to be torture:

He described his beating at the hands of the guards on the first day; he was
tied to a pole, raised two feet off of the ground and hit. After the beating, he was
“thrown in a hole where there were mice and rats” and nothing to eat or drink.
During his testimony, he described the same beating and then stated that he was
shoved in a “small cubicle.” He testified that he was not beaten on the second day.

That's it? Mice and rats ok, but no fake stinging insects? No carefully prescribed towel-wrapped smashes against a semi-flexible wall?

And this guy wasn't even waterboarded once, let alone 183 times like we do it here in America!

Togo, man, even their torture is third-rate.

Boy did we screw up the Everglades.

"Progress" and all that.

In a well-written and thoughtful opinion released yesterday, Judge Carnes lays out the history of man's intervention in the region in two succinct paragraphs:

For centuries, a broad, shallow sheet of fresh water that covered most of South Florida flowed south from Lake Okeechobee to the Florida Bay. This phenomenon was the “river of grass” or Everglades, which supported unique and fragile flora and fauna. As so often happens with natural treasures, people sought to control and manipulate the Everglades for their own ends. After the State of Florida’s efforts to tame the Everglades failed, in 1948 the Army Corps of Engineers got involved.

The Corps undertook the Central & Southern Florida Flood Project, which it hoped would control flooding, divert water away from developing areas, provide a source for irrigating crops, facilitate recreation, and “enhance” wildlife. See Miccosukee Tribe of Indians v. United States, 980 F. Supp. 448, 454 (S.D. Fla. 1997). In order to bend the water to its will, the Corps created thousands of miles of canals and levees supported by scores of pumps, gates, and dams. This massive plumbing project drained the northern portion of the original Everglades for agricultural use and diverted water into distinct, deeper Water Conservation Areas for controlled release into the southern part of the original area, which became Everglades National Park. There followed what the government artfully calls “unplanned environmental consequences." This case involves one of those consequences, which pits a sparrow against a hawk.

This opinion was a pleasure to read, even though the 11th waded into the always-tricky area of "legislative intent" to buttress its conclusions.

Back to the drawing board on this one, it seems.

(Dexter, your job is secure.)

I love how all of the sudden the 11th Circuit will do something to try to make it seem "relevant."

You know, they're way up in Atlanta, they don't release that many opinions (most are unpublished) and not on any set schedule, and let's face it, a few of them are kinda stiff.

But this week they tried to inject themselves into the South Florida legal conversation, the way they always do, by releasing an "Order" about a topic some of us civil lawyers deal with regularly -- in this case Rule 26 expert reports.

Ok, we got the message.

Yeah yeah yeah, you're the 11th Circuit, we know that, all powerful and all, got it! Isn't there something going on at the Coke Museum?

In Mann v. Taser International, Judge Fay takes a look at supplemental Rule 26 expert reports in the context of a wrongful death claim.

Here's the takeaway -- get it right the first time:

The district court set a March 12, 2007, deadline for the disclosure of expert witnesses and the completion of Rule 26 reports. A Rule 26 report must contain “a complete statement of all opinions the witness will express and the basis and reasons for them.” Fed. R. Civ. P. 26(a)(2)(B). Federal Rule 26 correlates with local rule 26.2, which mandates that expert opinions must be disclosed sufficiently early in the discovery period to allow the opposing party to react before the close of discovery, under penalty of exclusion. N.D. Ga. R. 26.2C.

In observing the deadline, Plaintiffs filed a Rule 26 report for Dr. Gowitt on February 23, 2007, setting forth the cause of death as “excited delirium.” He explained the relationship between increased catecholamines and an excited delirium state. On June 11, 2008, Plaintiffs filed Dr. Gowitt’s second affidavit, asserting two new theories of causation: electrocution and acidosis. The district court excluded their theories relating to acidosis and electrocution, holding that the new theories were untimely and that Plaintiffs did not show the required justification for their failure to disclose this in a timely fashion.

On appeal, Plaintiffs assert that the opinions were disclosed timely. We disagree. Although there were six revised scheduling orders, the opinions and Rule 26 reports of Plaintiffs primary expert were due on March 12, 2007. The six revised scheduling orders dealt with rebuttal experts and specifically excluded previously disclosed experts, including Dr. Gowitt.

In the alternative, Plaintiffs contend that the opinions contained in the second affidavit clarified previous opinions that were submitted timely. Again, we disagree. Dr. Gowitt raises his opinions regarding acidosis and electrocution for the first time in earnest in his affidavit of June 11, 2008. Although Plaintiffs correctly point out that Dr. Gowitt’s initial affidavit contained the word acidosis, a plain reading of his affidavit does not put the defense on notice that Plaintiffs would present acidosis as a theory of causation. Dr. Gowitt’s sole reference to acidosis was a dismissive sentence, claiming that Melinda’s acidosis levels were lower than expected.

Finally, Plaintiffs submit that the electrocution theory was not available until May 2008. In support, Plaintiffs cite a study published in May 2008 which summarizes an emergency room event in which a patient’s irregular heartbeat became regulated after an officer deployed a Taser on the patient. Even given a broad reading, that article does not address electrocution as a potential cause of death. Consequently, Plaintiffs have failed to show that their failure to disclose Dr. Gowitt’s opinion in a timely fashion was justified.

Oh well -- that's why these guys get the big bucks (experts, I mean)!

Hi kids, it's a short week and we have lots to do so let's see what is going on in the world:

Rothstein may have had extraordinarily bad taste but his partner in crime is worse:

The other was the late Stuart Rado, a consumer watchdog who died of cancer before the Classic Motor Carriages sentencing in 1999.

Rado’s estate attorney said in a statement that GGL’s tactics included “silencing” its critics and filing two lawsuits against Rado, even though the company knew Rado was dying of cancer.

Nice. Who was the lawyer who did what George Levin asked and sued a dying man for attorney's fees?

My favorite comment from the weekend was this Sarah Palin fan waiting in line at a book signing, who said this about President Obama:

“He isn’t governing, he’s still campaigning,” said Joe Miller, a lab technician who had taken a vacation day to wait in line Thursday at a Meijer superstore in Fort Wayne.

Joe, you realize that the person you have been waiting all day for actually quit governing in order to make a lot of money, go on a megabook tour, and campaign for 2012?

Sigh -- my head hurts.

What else -- the BigLaw biz sucks:

Among the top 75 law firms, 15 had reductions of more than 100 lawyers. Of the top 50, seven cut more than 200 attorneys. The firm with the largest percentage decrease was No. 95 Fried Frank Harris Shriver & Jacobson, which declined by 26.4 percent to 468 attorneys from 636 in 2008. Last year, the firm held the No. 58 slot in the rankings.

I've heard more unconfirmed reports, so anyone with more information please drop me a line.

Do you care that Judge Marra ruled on a motion to dismiss or that the 11th affirmed Judge Altonaga? No, you just want more and more Rothstein.

What about the fact that Stu Rosenfeldt, under investigation by the Florida Bar, was just named one of Broward's "leaders of the year":

Rosenfeldt formed a new firm with attorney Shawn Birken. He said he’d like to avoid being dragged into the legal morass his law partner created, but to some extent he knows he will be.

“I didn’t plan it this way,’’ he said. “ … I guess you just have to follow the path that life leads you. … God has a plan. Hopefully He’ll show it to me.’’

Oh boy.

I think I liked "Clueless Stu" better.

Boy oh boy, posts about two of my favorite subjects all in one day.

I know -- going to the well.

So you guys remember the time Judge Ryskamp slashed fees in a FLSA case by 60 percent because of excessive requests for extension of time to respond to discovery?

You're right, let me be more specific:

The Court is concerned, however, that the total number of hours claimed, 547.5, is unreasonable. Plaintiffs filed an extraordinary number of motions for extensions of time in this matter. Indeed, on August 16, 2007, the number of extensions requested from Plaintiffs became so excessive that the Court barred Plaintiffs from seeking any further extensions. The extensions were largely filed because Plaintiffs struggled with responding to discovery requests in a timely manner. Plaintiffs’ counsel billed for time spent requesting these extensions. Defendant cannot be expected to bear the financial burden for Plaintiffs’ counsel’s inability to comply with discovery deadlines. Plaintiffs' dilatory conduct reached the point Defendant was forced to file a Motion to Compel Discovery and Deem Facts Admitted. Plaintiffs' counsel also spent several hours drafting an opposition to Defendant’s motion for rehearing regarding the motion to amend the complaint. Defendant filed a motion for rehearing due to a clerical error on the part of the Court: the Court initially granted the motion to amend because it failed to note that Defendant had filed an opposition to same. It was plain from the docket that the order granting the motion to amend was premised on the administrative error, but Plaintiffs nonetheless opposed the motion for rehearing. Plaintiffs have also submitted fees in a relation to a summary judgment motion, but Plaintiffs never moved for summary judgment in this matter. The hours spent researching and preparing this motion are not compensable because they had no effect on the outcome of this matter.

This litigation was not complicated. Litigation of this matter consisted largely of responding to discovery requests, examining the applicability of potential defenses and negotiating settlements. Although this matter involved 11 Plaintiffs, FLSA cases frequently have multiple plaintiffs. The larger number of plaintiffs in this matter did not alter the legal complexity of this case: this case boiled down to a question of numbers – the amount of additional compensation to which Plaintiffs were entitled. The legal questions presented in this case were not difficult or novel. The motions practice was virtually nonexistent; there was no motion to dismiss, nor was there was there a motion for summary judgment. The Court therefore applies a 60% reduction to the number of hours each counselor or paralegal claimed in this matter, reducing the number of hours claimed from 547.5 to 219.

Ouch.

The Judge also denied any discovery into what defense counsel billed in defending the case and also any time spent trying to get at those figures. He even bounced as unsubstantiated a request for travel expenses to take two depos in Tampa, even though no one disputes the depos were taken. Maybe they used a teleporter to get there?

So plaintiffs' counsel -- the lovely and talented Melanie Damian and the not especially lovely but also talented Tim Schranck (I hope I spelled it right this time, Tim!) -- took it up, and in an order today the 11th affirmed, and included this cryptic statement:

Finally, we conclude appellants’ claim of bias is meritless.

First of all, sorry about the hit, fellas.

Second -- anyone know what that last line is about?

I don't know about you, but I don't recall Charlie Crist or my rush hazing to be anything like this wholesome little frat at UF, which is the subject of this 11th Circuit opinion today written by Judge Tjoflat:

BYX is a national fraternity founded in 1985. It has twenty-two chapters in nine states. According to its constitution, it “exists for the purpose of establishing brotherhood and unity among college men based on the common bond of Jesus Christ.” BYX espouses a strict approach to the Christian faith, and membership in the fraternity is contingent upon what the fraternity deems “a credible profession of faith in Jesus Christ.” This requires agreement not only with the traditional core Christian beliefs and values contained in such ancient expressions as the Nicene Creed, but adherence to a demanding view of the faith. In its doctrinal statement, BYX explains that members must “believe that the Bible is God’s written revelation to man, that it is inspired, authoritative, and without error in the original manuscripts.” Accordingly, BYX bars from membership non-Christians, Roman Catholics, and adherents to the traditional Christian orthodoxy taught by the mainline Protestant denominations.

BYX also demands moral and “sexual purity.” According to its code of conduct, BYX believes that “sex is a gift of God to be enjoyed inside the covenant of marriage between a man and a woman. Therefore, we will not condone such activity as homosexuality, fornication, or adultery.”

. . . .

After admission into the fraternity as a pledge, the applicant must complete the pledge process. The purpose of the pledge process is to examine the applicant’s understanding of salvation, his personal relationship with Jesus Christ, and his willingness to accept and promote BYX’s doctrine. As part of the process, the pledge must participate in BYX’s “Big/Little Brother Program” and is assigned to an active member of the fraternity who serves as the pledge’s “Big Brother.” The Big Brother is required to watch over the pledge and ensure that he is conducting himself in conformity with the fraternity’s code of conduct. Ideological, theological, and moral purity are central elements of BYX’s foundational purpose, and the “Big Brother” program is designed as a safeguard against the pledge going astray. As BYX’s constitution states,

BYX has fulfilled its purpose over the years, and Satan hates it. He wants to sift this group like wheat and is roaming on [ ] campus like a roaring lion waiting for the chance to destroy us. If the devil sifts our group, he will probably do it primarily through alcohol, but also through sexual impurity or lust, pride, laziness, and contention. So be on your guard.

The “Big Brother” is the first line of defense against such impurities and influences infiltrating the group.

. . . .

All BYX members and pledges participate in Cell Groups, which are weekly meetings where the members and pledges hold one another accountable to living consistently with BYX’s Christian beliefs and values. BYX also holds weekly meetings, which include prayer, worship, encouragement of specific members, a testimony or Bible message from a fraternity member, and announcements pertaining to fraternity business.

Ummm -- sounds like fun??

Forget Fast Times, Animal House, or even Revenge of the Nerds.

Haven't any of you guys seen PCU? Real Genius? Back to School?

Does any of this ring a bell at all?

Related -- do any of you know a lawyer in Leesburg?

There are few certainties in life, but one universal rule seems constant -- if you refuse to leave a strip club at closing time, you will in fact get the s$#t beat out of you.

The 11th Circuit upholds the validity of this maxim in an unpublished opinion affirming Judge Marra's summary judgment in a case involving the company Seductions LLC, which appears to be doing business as Hotties Gentlemen Club/Goldfellas:

Mauricio Arana was injured in 2006 when Seductions employees allegedly beat and threw him out of the company’s nightclub after he refused to leave at closing time. The Aranas subsequently sued Seductions in state court to recover damages for Mauricio’s injuries, medical expenses alleged to exceed $1 million, and loss of consortium. The Aranas’ complaint alleged that Seductions had negligently hired, retained, trained, and supervised the employees responsible for the attack.

The coverage issue centered on whether the claim sounded in negligence or arose out of an assault and battery, which was limited to $25,000 under the terms of the policy.

Guess which way the 11th came down?

And read Middle District of Georgia Judge Clay Land's sanctions order against Ms. Birther, California lawyer Orly Taitz (thanks for posting, Marco!).

I particularly like the way Judge Land handles the recusal motion, which is in part based on an affidavit asserting that Judge Land met personally with US Attorney General Eric Holder in a coffee shop across the street from the courthouse:

In support of this accusation, counsel submits the affidavit of Robert D. Douglas. Mr. Douglas states that on the day of the hearing in the Cook case, he saw in the “coffee shop” across the street from the federal courthouse someone whom he recognized as Eric Holder, the Attorney General. Mr. Douglas’s identification is based upon what he describes as the Attorney General’s “distinguishing features: his trim upper lip mustache, not large of stature and general olive complexion.”

It gets much, much better -- in fact, it's a must-read.

PLEASE PLEASE PLEASE PLEASE Orly, if you're listening, take this baby to the 11th Circuit.

(You may have to post a bond first).

Judge Carnes is sure on a roll.

Yesterday we wrote about the opening of his opinion in Stein, which crisply distilled the entire history of American real estate into a single pithy and readable paragraph.

Today the Judge starts an opinion by likening a debt collector's efforts to rely on the "bona fide error" defense under the FDCPA to America's bloody involvement in the Vietnam War:

In an oft-repeated statement from the Vietnam War, an unidentified American military officer reputedly said that “we had to destroy the village to save it.” That oxymoronic explanation may be apocryphal, but the debt collection agency in this case offers up much the same logic to explain why it violated the Fair Debt Collection Practices Act: it was necessary to violate the Act in order to comply with the Act.

Ok, it's a bit of a reach but I really like this opinion -- it's well-organized and written in very simple, short, declarative sentences. The opinion flows logically and makes perfect sense both legally and intuitively.

What's next -- a short primer on Alexander Graham Bell before he rules in a TCPA case?

I wonder what tomorrow has in mind for me
Or am I even in it's mind at all
Perhaps I'll get a chance to look ahead and see
Soon as I find myself a crystal ball
Soon as I find myself a crystal ball

Tell me, tell me where I'm going
I don't know where I've been
Tell me, tell me, won't you tell me
And then tell me again
My heart is breaking, my body's aching
And I don't know where to go
Tell me, tell me, won't you tell me
I've just got to know

Crystal ball
There's so many things I need to know
Crystal ball
There's so many things I've got to know
Crystal ball

John Pacenti does a nice write up of the 11th Circuit's latest ILSA opinion.

The court's opening paragraph is somewhat discursive, and sets the tone:

In a market-based economy the price of housing, like other goods, is subject to swings. There was a sharp upward swing in housing prices between late 2000 and the end of 2005, and the resulting bubble was bigger in Florida than it was in most other states. Home prices there rose eighty-two percent in absolute terms during that short period, outstripping the fifty-one percent national increase. See Gabriel Montes Rojas et al., The Florida Housing Boom, 3 Fla. Focus 1, 2 (2007). All bubbles eventually burst, as this one did. The bigger the bubble, the bigger the pop. The bigger the pop, the bigger the losses. And the bigger the losses, the more likely litigation will ensue. Hence this case.

Maybe I'm reading too much into this, but I detect a slight whiff of condemnation, and it seems to run only to those buyers who sought to make out in the land boom, and not the developers. Or am I wrong?

Is the court saying this case is purely and solely a product of the bubble bursting, and not because of any alleged wrongdoing by the developer?

Let's read on:

After the housing bubble burst, the Steins had second thoughts about their decision to purchase the condominium unit. Wanting out of their contract, they seized on to the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq, a federal statute that has become an increasingly popular means of channeling buyer’s remorse into a legal defense to a breach of contract claim.

Where is this coming from?

How does the court know the exact causal relationship -- that the housing bubble burst, and that therefore the Steins had "second thoughts"?

If true, is this even relevant?

Also note the dismissive language regarding the motives of the Steins or their counsel in "seizing" upon ILSA, an "increasingly popular means of channeling buyer's remorse into a legal defense to a breach of contract claim."

Actually, I heard this once at a Federalist Society meeting, so it's probably true.

But does ILSA have an "intent" exception?

Personally, I feel the same way about § 1983 actions, which civil rights lawyers "seized upon" as an "increasingly popular means of channeling anger against LA cops when they choke-hold and beat up black people for no reason."

John gets a nice quote from the lawyer who dreamed up using ILSA as some sort of therapy to relieve his clients' buyers' remorse:

Stein attorney Joseph Stern at Saraga & Lipshy of Delray Beach said the appellate court was clearly biased against the buyers.

“They talk about our clients having buyer’s remorse. Statements like that have no place in the opinion. Those statements weren’t part of the record,” he said.

Stern said he will ask the full 11th Circuit to hear the case en banc.

“This is a case of great public importance,” Stern said. “There has been an enormous amount of cases on this issue.”

Not anymore, Joe.

Do some yoga, windsurf, whatever -- you need to find another outlet to channel your client's feelings.

Music is good -- how 'bout some old Styx?

Hi kids!

Speaking of the 11th Circuit and Judge Barkett, she just issued a very well-written forum non ruling, affirming Judge Ungaro's dismissal involving the West Caribbean Airways plane crash that went down in the mountains of Venezuela.

One interesting fact I didn't know -- Martinique is technically still an official Department of the Republic of France.

(To be honest, everything I know about that island I learned by watching Bugs Bunny).

Did you all see this fascinating WSJ article on how certain neurons in our brains are hard-wired to respond to particular celebrities:

In their most recent work this year, the research team reported that a single human neuron could recognize a personality through pictures, text or the sound of a name -- no matter how that person was presented. In tests, one brain cell reacted only to Oprah Winfrey; another just to Luke Skywalker; a third singled out Argentine soccer star Diego Maradona.

It gets more particular than that:

To start, Dr. Fried and his colleagues showed eight epilepsy patients 80 images of celebrities, animals, common objects and landmarks while recording the electrical activity of neurons wired to electrodes. They flashed each image for a second, shuffled the sequence into random order and then repeated it. They did that six times.

"You would present hundreds of stimuli -- faces or celebrities or famous landmarks -- and the neuron would respond to only one or two," Dr. Fried says. "The incredible specificity was striking."

In the magazine rack of the mind, some cover girls have a neuron all their own. Testing one patient, the researchers found a neuron that reacted instantly when shown almost any picture of Jennifer Aniston. This cell ignored other celebrities. It gave the cold shoulder to pictures of the actress with her former husband Brad Pitt. "The cells seemed to respond to the idea of Jennifer Aniston," says Dr. Koch.

Testing a second patient, the researchers found a neuron that responded only to Halle Berry. The cell's electrical activity jumped no matter how the actress was posed or how she was dressed. Again, this neuron showed no interest in other celebrities or to any other images of common objects or places.

Subsequent tests turned up single neurons in patients that fired selectively to pictures of former President Bill Clinton, The Beatles, or basketball player Michael Jordan. Each of these individual neurons behaved in a way that made the researchers believe that the cell was responding to a distillation of experience. "The neuron is responding to a concept, not a picture," says Dr. Quian Quiroga. Moreover, each neuron acted as a trigger for recalling the concept they helped encode.

You know, that research really explains a lot -- and I mean a lot.

Well it's Columbus Day on Monday and many offices will be closed (certain temporary judicial bunkers located deep beneath the sprawling FIU campus excepted) so I hope you have glorious plans that include something more than showing up at work on Monday in shorts and flip-flops.

Me I have a lot on my plate -- reading some interesting new books, checking out the students at Florida Coastal School of Law, and learning what it means to be "motorboated."

As always I plan to stay healthy and put my hands on something that feels good this weekend -- I hope you all do too.

Have a great weekend!