1. SPECIAL REPORT
MONDAY, DECEMBER 10, 2012
Table of Contents
Pro bono
2
4
Public interest
Appellate 6
Arbitration 8
Bankruptcy 9
10
Business litigation
Class action
12
Corporate securities
Criminal justice
Intellectual property
13
14
15
Personal injury
Product liability
Real estate
16
17
19

2. AA2
dailybusinessreview.com MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW
NOTABLE ACHIEVEMENTS
In many respects, the Year 2012 was a
year of Recovery and Redemption.
The Troubles, as some legal market
observers have called it, eased a bit as law
firms recalibrated business plans, signed
up laterals with strong books of business
and in some cases, took the merger route
and got married. Some veteran lawyers,
meanwhile, abandoned the perceived security of Big Law and started their own
new firms from scratch.
Despite all of the changes — there has
been one constant with the South Florida
bar. A vast majority of our legal community did what they were hired to do: In
both the private and public sectors, they
served their clients well.
To prove it, the Daily Business Review
is again recognizing some of the best
work delivered by private and public sector lawyers from Miami-Dade, Broward
and Palm Beach Counties through its
eighth Most Effective Lawyers in South
Florida.
This year, in its eighth annual special
report, the Review is recognizing more
than 70 attorneys in 13 categories.
They include: Appellate, Arbitration,
Bankruptcy, Business Litigation, Class
Action, Corporate Securities, Criminal
Justice, Intellectual Property, Personal
Injury, Pro Bono, Product Liability, Public
Interest and Real Estate.
As always, the attorneys were measured on one critical benchmark: the results for the client.
This year, there were plenty.
Among them:
• For the long-suffering investors who
were pushed off their own fiscal cliff by
the Ponzi schemer Scott Rothstein, litigators obtained stunning verdicts and
settlements to place clients on the road
to more than just a modest recovery.
• For a woman who ended up with deformed hands as a result of mistreatment by a doctor, one litigator turned
to arbitration – at her client’s insistence
– to win a multimillion dollar award.
• For a foreign insurance company that
needed appellate help to beat back a
multimillion dollar federal court verdict, a former Supreme Court justice
teamed with two law firm colleagues
to get the result overturned.
• For homeowners who saw a mortgage origination fraud lead to one of
the biggest bank failures in U.S. history, an area lawyer and his team helped
creditors recover millions lost through
fraudulent or preference conveyances.
• For other homeowners whose houses
were fouled by toxic Chinese drywall,
class action lawyers reached an agreement for a payout of between $600
million and $1 billion.
Throughout the pages of today’s special pullout section, readers will learn the
details about these and other cases that
impacted both the public and private sectors.
Holding to custom, the Review’s selections began with the assistance of bar
members, their non-lawyer colleagues
and the clients who believed their lawyers deserved recognition for what was
achieved.
The nominees’ work was evaluated
by the Review editorial staff and based on
both tangible results and an outcome’s
impact on public policy and/or business
interests.
Review editors conducted a threemonth selection process that focused on
not only the outcomes but the complexity
of cases.
Only South Florida-based lawyers
qualified for the program. The results
had to be achieved between Oct. 1, 2011
and Sept. 30, 2012.
An initial cut was made to eliminate
nominations that were incomplete, did
not meet the criteria or clearly did not
belong in the program.
The DBR’s research director reached
out to many of the nominees for information to buttress the nominations.
The editors then scored the nominees
before meeting to select the semifinalists.
Some of the categories that proved to
be the most competitive were appellate,
business litigation, criminal justice, real
estate and public interest.
The DBR’s staff reporters and several
outside contributors researched and further reported on the cases handled by
the finalists. In some cases, they talked to
the adversaries of those who were nominated.
The editors reconvened in November
to review the findings and research by
the staff writers and contributors.
Finally, in each category, the editors
undertook the difficult task of selecting
one case that featured attorneys who
should be recognized as a Most Effective
Lawyer.
While today’s section identifies leaders in each category, the editors sought
to be sensitive to the teamwork that went
into each result. Thus, readers will see
the names of many who were in the supporting cast.
J. Albert Diaz
Effie Silva challenged records release.
SPECIAL
REPORT
Pro Bono
Attorney fought
for girl whose
confidential
juvenile record
was sold online
Effie D. Silva
Baker McKenzie
The alleged crime seems almost ludicrous — a 13-year-old girl arrested,
fingerprinted and charged for stealing
a can of Coke from a Miami Beach store.
For the Florida Department of Law
Enforcement to make money by allowing the girl’s juvenile record to be sold
on the Internet, though, made it serious.
“It’s frightening because of the explosion of data mining around the country,
which has really capitalized on this kind
of access to these kinds of records,” said
Effie D. Silva, a complex commercial
litigation and arbitration attorney with
Baker and McKenzie who wound up
handling the pro bono case on the girl’s
behalf. “She at that time was a 13-yearold girl that had her future ahead of her.
She hoped to get a job, financial aid, future employment, and this really caused
a serious threat.
“Everybody just assumes that juvenile records are confidential. There’s
never this assumption that they’re not.”
Originally,
Miami-Dade
Public
Defender Carlos Martinez seized upon
the case of the girl, known only as “G.G.”
to shield her identity, as the perfect case
for challenging FDLE’s practice of releasing juvenile records for profit. But
because one public agency can’t sue another in Florida, Martinez sought help
from Baker and McKenzie.
Enter Silva.
“The G.G. case was exactly in the
parameters of the confidentiality rules,”
she said. Nonetheless, she added, “I
went online and I actually purchased
her arrest record for $23.”
The release of G.G.’s arrest information came about because FDLE interpreted state law as requiring their release. Silva immediately recognized the
sweeping impact of FDLE’s practice.
“It’s not just her,” she said. “There
were tons of kids and still are tons of
kids trapped in this same scenario. Once
we filed the lawsuit I received calls from
mothers and daughters throughout the
state in similar situations.”
Last month, the First District Court of
Appeal issued its opinion. It found that
G.G. “was entitled to confidential treatment of her juvenile record.”
“When I got the opinion,” Silva said,
“there was a deep feeling in me that this
was something good.”
And, as a result of the opinion, FDLE
has already begun withholding juvenile
records in similar cases.
“After the First District Court’s ruling,
the FDLE has certainly received a message from the court, and I think that it’s
clear that the FDLE is going to change
their policy with respect to keeping
these confidential records really confidential,” Silva said.

3. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012
FINALIST
Attorney, firm work together to
offer legal aid to parents in need
Michelle Tanzer
Holland & Knight
Michelle Tanzer knew what the parents faced. She had been through it herself, with her own son.
Alex was diagnosed as being severely
autistic 15 years ago.
“It was suggested that Alex be institutionalized, really,” she said. “That he did
not have the brain work to communicate, let alone succeed in a mainstream
environment. So his prognosis was very
bleak, very bleak.”
But she fought. She used her experience as an attorney to learn the workings of the state education system and
the individual education plans (IEPs) for
students with disabilities to get Alex additional attention at school.
Today, Alex has a 4.2 GPA in a mainstream high school.
“It’s a miracle, really,” she said.
“Navigating the maze through the educational system and the IEPs was very
difficult.”
Her experience, and her success, led
to a realization — and a promise.
“Having a student or child with a disability is overwhelming generally to the
family. They don’t know where to turn or
how to get the support that they need,”
she said. “While I was going through the
process I realized that what I learned
would be of benefit to so many other,
thousands of other families ... I promised
myself going forward that I would do
whatever I could to
help anyone facing
a similar situation.”
First she shared
her experience as a
parent, connecting
with others facing
the same challenges
— not just for those
with autistic chilMichelle Tanzer
dren, but anyone
with a child with a disability. She didn’t
give legal advice, but she offered support
and anecdotal, parent to parent insights.
Then, in 2010, she got a call asking if
she would take on some cases. It was a
total departure for Tanzer, a real estate
attorney specializing in the hospitality
sector. She had no experience in disability rights, but she took them, pro bono.
With the support of the firm she
works for, Holland & Knight, that initial foray grew into Assisting Students
with Disabilities, which she created with
Disability Rights Florida, offering free
legal aid to parents in need. Two years
into the project, it now involves more
than 30 attorneys throughout the state.
They’ve successfully tackled a couple of
dozen cases so far and won a positive
result every time.
Now Tanzer hopes to spread the word
so that more parents become aware of
ASD, and expand the reach of the project.
“I’m committed to helping any student in the state of Florida that needs
our help.”
FINALIST
Attorneys help defend ex-official
who was forced to flee the Bahamas
Monica Vila and Eleni Kastranakes,
Holland & Knight
For Monica Vila and Eleni
Kastranakes, the case of a former
Bahamian official who served as an informant for the U.S. Drug Enforcement
Administration was “haunting.”
Death threats forced him to flee with
his family to the United States, but he exhausted his appeals over a twelve-year
battle for asylum and faced deportation
back to the islands.
That’s when the Holland & Knight associates stepped in with a team of pro
bono attorneys and pursued a precedent-setting line of defense that could
have a far-reaching impact on future
cases involving those who speak out
against political corruption.
“It opened up one more avenue under the political opinion umbrella that
didn’t exist before,” Vila said.
The case of “Mr. Smith” (as the attorneys have asked that he be identified to
protect him) began when he witnessed
government corruption that included
drug smuggling by members of the
Royal Bahamas Defense Force. He felt
duty-bound to do something about it. He
went to the DEA and became a confidential informant.
When he was discovered, he started
receiving death threats against him and
Monica Vila
Eleni Kastranakes
his family. Fearing for their lives, he took
his wife and three children to the United
States. His attorneys says he went to the
DEA, but soon realized the agency had
no intention of keeping a promise to
protect him. So he sought asylum, and
wound up in front of an immigration
judge who repeatedly interrupted him
during his testimony, asking more than
200 “rapid-fire” questions and making
“sarcastic and insulting comments,” Vila
said.
The complaint the team of attorneys
filed in the case noted that when the presentation of evidence ended, the judge
said: “This is so vague and general you
could vomit and I could vomit because I
can’t. He wants me to become a magician here and grant it merely based on
this kind of testimony. ... I think this case
quite frankly — I hate to use the word —
but I think it stinks. It smells bad because
there’s no way. This is pie in the sky.”
see page AA5
dailybusinessreview.com
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4. AA4
dailybusinessreview.com MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW
Public Interest
Legal, lobbying efforts helped produce deferred deportation policy
Cheryl Little
Americans for Immigrant Justice
Manny Diaz
Lydecker Diaz
Nera Shefer
Grisales-Racini, Shefer, Hershey,
Gonzalez-Rabagh, Miculitzki
J. Albert Diaz
J. Albert Diaz
J. Albert Diaz
Cheryl Little with Florida Immigrant Advocacy
Center.
Manny Diaz of Lydecker Diaz.
Nera Shefer of Grisales, Racini, Shefer,
Hershey, Gonzalez-Rabagh, Miculitzki.
Since 1985, immigration attorney
Cheryl Little has worked tirelessly on
behalf of Haitians, Cubans and other immigrants at various nonprofit organizations.
In recent years, she has been focused on getting the DREAM Act passed
to award asylum to youths brought to
the United States by their immigrant
parents. In 2007, clients Alex and Juan
Gomez, twin brothers from Colombia
who face deportation, became the face of
the so-called DREAMers after storming
Washington in a major lobbying effort.
But the DREAM Act never made it out of
congressional committees.
Still, Little achieved scores of deferred
actions on behalf of her young clients
over the years, giving them the ability to
obtain work permits and driver licenses.
Last April, Little made the case that
temporary relief for DREAMers would
best be done administratively, not legislatively. That day, she was flooded with
calls — one of them from former Miami
Mayor Manny Diaz.
Coincidentally, Diaz, who serves on
the board of the Homeland Security
Council, was going to see Homeland
Security Secretary Janet Napolitano in
a few days. An immigrant himself, he
jumped on Little’s cause and started
sifting through his hefty contact list to
lobby for Deferred Action for Childhood
Arrivals, starting with a call to Vice
President Joe Biden.
Finalist
Attorney helped defeat law
stopping doctors from asking
patients if they have guns at homes
Ed Mullins
Astigarraga Davis
Ed Mullins has been an advocate for
First Amendment issues his entire career, representing Telemundo, ABC, Fox
News, Newhouse Publications, the Palm
Beach Post and others.
So when lawyers at the firm Ropes
& Gray asked him in May to help challenge a bill signed by Governor Rick
Scott barring physicians from asking
their patients if they owned guns, he
agreed without hesitation.
Physicians, particularly pediatricians, sometimes ask patients about
gun ownership during physicals as a
preventative medicine measure. The
new physician gag law, heavily backed
by the National Rifle Association, would
block doctors from discussing the issue
with patients. Scott signed this first-inthe-nation law in June 2011.
Mullins, a Republican, said, “The
statute made no sense.”
“What always floored me is there
has never been justification for this,” he
said. “Everyone agrees that people need
to know about gun safety, even the NRA.
Yet despite all this
they lobbied for
passing this statute. It’s an indefensible statute in
my mind.”
Mullins viewed
the law as a slippery slope. What
if a food company
like McDonald’s
Ed Mullins
lobbied Scott and
the Legislature
for a law barring doctors from asking
patients about their diets, he wondered.
Dr. Stuart Himmelstein, governor
of the Florida chapter of the American
College of Physicians, said, “Reversing
this law is essential in order to preserve
the sanctity of the doctor-patient relationship by keeping the government out
of the exam room.”
In June 2011, a group of physicians
in conjunction with the Brady Center to
Prevent Gun Violence sued the state in
Miami federal court, claiming the law
Diaz also helped draft a resolution
passed by the U.S. Conference of Mayors,
which he had served as president, asking the administration to move forward
with DACA.
Little crafted a legal memo laying out
the basis for DACA and got the memo
in the hands of White House aides. On
May 29, she flew to Washington to meet
with Obama policy advisers at the White
House, walking them through the strategy.
At the same time, Miami immigration
attorney Nera Shefer was looking for a
test case to challenge the removal policy
on childhood arrivals. She believed she
found it in Daniela Pelaez, the valedictorian of North Miami Senior High School
and the top-ranked student in her class
of 700.
A Miami immigration judge ordered
Pelaez last February to be deported to
her native Colombia and gave her 30
days to leave. She called Shefer, who
agreed to take the case pro bono.
Shefer immediately petitioned the
Department of Homeland Security for a
two-year deferred action so Pelaez could
deliver her commencement speech. She
then jumped from lawyering to lobbying
and public relations, helping organize
a protest. More than 2,500 students,
teachers and school board members
marched in front of the school, attracting national attention.
Shefer then took Pelaez to Washington
to meet with members of Congress as
well as President Obama’s chief immigration policy adviser. Marco Rubio, David
Rivera, Ileana Ros-Lehtinen, Frederica
Wilson and Bill Nelson all wrote letters
in support of Pelaez to Napolitano.
Shefer blitzed the airwaves with
Pelaez, making the articulate young
woman the new face of DREAMers.
Napolitano granted both Daniela and
her sister, Dayana, deferred action, putting off deportation for two years. They
also received permission to work and to
obtain driver licenses and Social Security
numbers.
On June 15, Obama announced the
new DACA policy — up to 1 million
people under age 31 who arrived in the
United States before age 16 are eligible
for two-year deportation deferrals.
was unconstitutional and a violation of
their First Amendment rights.
The state fought vigorously, and the
case was heavily briefed on both sides.
The NRA filed a motion to intervene,
and the American Civil Liberties Union
filed an amicus brief on the doctors’
side. Meanwhile, other states kept a
close eye on the Florida case.
Working with lawyers at Ropes &
Gray, Mullins worked on strategy, all key
motions and briefings.
In July, U.S. District Judge Marcia
Cooke tossed the law, deeming it unconstitutional and a violation of the doctors’
right to free speech.
The state has appealed to the U.S.
Court of Appeals for the Eleventh
Circuit, which has not scheduled oral
arguments.
Mullins donated his time to the cause
on a pro bono basis but has now submitted a fee request to the state.

5. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012
Finalist
Law groups fought drug test
mandate for welfare recipients
Maria Kayanan,
Randall Marshall and
Shalini Goel Agarwal
American Civil Liberties Union
Randall C. Berg Jr. and
Shawn Heller
Florida Justice Institute
Shalini Goel Agarwal
Randall C. Berg Jr.
Maria Kayanan
Randall C. Marshall
Shawn Heller
The American
Civil
Liberties
Union of Florida
and the Florida
Justice Institute
began their battle against a law
mandating drug
testing for all
welfare recipients the day it
was signed.
The law signed
by Governor Rick
Scott on May
5, 2011 made
Florida the first
state in the nation to require
people receiving
welfare to pass
a drug test since
a Michigan federal court struck
down a similar
law in 2000.
The two public interest law
groups
immediately
joined
forces to draft
pleadings, conduct
research
and, most importantly, search for
a test case.
They
found
that case when
Luis
Lebron
called the ACLU
after
reading
an article about
the new law in
a
newspaper.
The 35-year-old
Orlando resident
was a Navy veteran, a single father
and a student at
the University of
Central Florida.
He applied for
assistance under the state’s
Temporary Assistance for Needy
Families program but refused to submit to a drug test, declining to waive his
Fourth Amendment rights against unreasonable search and seizure.
The law requires admittedly impoverished applicants to pay for the test
first and seek reimbursement from the
state if they pass. Those failing the test
would lose assistance for one year.
The team knew the stakes were high
with other states such as Georgia looking to follow Florida’s example.
In every aspect, the five lawyers operated as a team. Every filing was done
by committee.
“This was a true team effort,” said
Maria Kayanan of the ACLU. “I don’t
think there was any way to divide it up.
There were more drafts of things written than there are stars in the sky. It was
a true collaborative effort.”
The lawsuit against the state, with
Lebron as the class representative, was
filed on Sept. 6, 2011, in the Orlando
federal court.
On Oct. 24, 2011, after a contested
evidentiary hearing, U.S. District Judge
Mary Scriven preliminarily enjoined
the state Department of Children and
Families from testing welfare recipients. Six weeks later, the court certified
the matter as a class action. In her 37page ruling, Scriven said the collection
of urine “entails intrusion into a highly
personal and private bodily function”
and noted there is a “substantial likelihood” the law will be thrown out on
constitutional grounds.
“We were ecstatic at the ruling,” Berg
said. “When we left the 3½-hour hearing, we felt good, but you can’t be sure
after a court hearing how a judge will
rule. We’re particularly proud of the
court in standing up for the Constitution
and protecting the rights of poor people
not to be trampled on by the state of
Florida. It’s kind of a rarity these days
that this happens.”
Kayanan, who has been a lawyer
since 1980, calls the case “the most important of my legal career.”
Lebron is no longer on assistance
and works as an associate accountant
at Walt Disney World. Georgia, meanwhile, has dropped plans to implement
a similar law.
Florida has appealed to the U.S. Court
of Appeals for the Eleventh Circuit.
FROM PAGE AA3
Pro Bono: Judicial
misconduct on partiality
A review by the Justice Department’s
Office of Professional Responsibility
found that the judge “engaged in professional misconduct when he acted in
reckless disregard of his obligation to be
fair and impartial.”
As a result of the OPR finding, the case
was reopened. Now, said Kastranakes,
“We’re hopeful that this decision in this
case will be helpful to other people trying
to get asylum here for fighting corruption.”
dailybusinessreview.com
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6. AA6
dailybusinessreview.com MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW
APPELLATE
Ex-justice handled extra pressure in win for Australian insurer
Raoul Cantero III
White & Case
Rodolfo Sorondo Jr. and Monica Vila
Holland & Knight
You might assume it’s easier to argue before the
Florida Supreme Court after serving as a justice, but
according to Raoul Cantero, you’d be wrong.
“There’s extra pressure,” said Cantero, a member of
the court from 2002 to 2008 who leads White & Case’s
Miami appellate practice. “You want to make the best
presentation possible whether they rule in your favor
or not.
“You want them to think you are an excellent advocate, and you are not relying on the fact that you are a
former judge but on your own skills and preparation.”
On May 31, Cantero’s insider knowledge and experience as an appellate lawyer were rewarded when the
court ruled unanimously for his client, QBE Insurance
Corp., in an important case stemming from Hurricane
Wilma.
Teamwork also helped. His co-counsel were two
Holland & Knight lawyers: his friend Rodolfo Sorondo
Jr., formerly a judge on the Third District Court of
Appeal, and associate Monica Vila.
Chalfonte, a condo rental property in Boca Raton,
was damaged in the 2005 hurricane. Unhappy with
QBE’s treatment of its claim, the condo association sued
for breach of contract, breach of the implied warranty
of good faith and fair dealing, and violation of the state
law on hurricane deductibles.
QBE is based in Australia, so the lawsuit proceeded
in federal court, where a jury awarded Chalfonte $7.2
million. QBE appealed to the U.S. Court of Appeals for
the Eleventh Circuit, which certified five questions of
state law to the Florida Supreme Court.
Cantero joined forces with Sorondo and Vila, who
handled the case in the Eleventh Circuit, to persuade
the high court to answer the questions favorably to
QBE. Creating a challenge for the QBE lawyers, there
was no controlling precedent in Florida.
“The conclusion we proposed followed logically
from the conclusions that it had reached previously,”
Cantero said.
The most important result was the court’s ruling
that when an issue is contractual, insured parties like
Chalfonte cannot use the implied warranty of good faith
as a cover to present prejudicial evidence of bad faith
to a jury.
Questions answered, the case returned to the
Eleventh Circuit. On Sept. 20, the court reversed the
$7.2 million judgment and ordered a new trial.
J. Albert Diaz
Rodolfo Sorondo Jr. and Monica Vila with Holland & Knight and Raoul G. Cantero with White & Case landed a win for insurance company.
Finalist
Commercial litigator gets favorable ruling on discovery in international arbitration
Ed Mullins
Astigarraga Davis
At the start of the May 24 oral argument before three appellate court judges, Edward Mullins must have felt like
Dwyane Wade at the free-throw line.
His partner Jose Astigarraga had
won in the Miami trial court. As long as
the panel stuck to the issue U.S. District
Judge Donald Graham in Miami decided
in their client’s favor, the repartee would
flow easily, and he’d be home free.
But the judges wanted to discuss a
more significant matter: the definition of
tribunal when seeking discovery under
28 U.S. Code Section 1782.
Mullins was ready for that lob, too.
“The lesson was being prepared for anything you need to do,” he said.
The June 25 holding that a private
arbitration proceeding in Ecuador qualifies as a tribunal entitled to U.S. courts’
help with discovery, made law in
the U.S. Court of
Appeals for the
Eleventh Circuit.
M u l l i n s ,
a
founding
shareholder
of
Astigarraga Davis
in Miami, has
worked on about
Ed Mullins
100 appeals during his career as
a commercial litigator. He said the application of Consorcio Ecuatoriano de
Telecomunicaciones v. JAS Forwarding
was unusually enjoyable.
“In a few appeals like this one, you really get a chance to make an academic
argument on the law,” Mullins said.
“Because the court was interested in the
arbitration issue, we were able to engage
in a discourse about what the law was
and should be.”
Conocel and Jet Air Service Ecuador
S.A. disputed the billing of a shipping contract. JASE started arbitration
against Conocel, the Ecuadorean telecom company, for alleged nonpayment.
For its part, Conocel said it intended to
take action in Ecuador against two exemployees accused of overbilling. The
company needed records from JASE’s
U.S. counterpart, JAS Forwarding.
Because the Astigarraga Davis firm is
recognized for its international arbitration work, Conocel went there for help
with obtaining the evidence.
Persuaded by Astigarraga, Graham
granted the application. He did not reach
the issue of whether the directorategeneral for competition of the European
Commission, where the arbitration was
conducted, is a “foreign or international
tribunal.” The judge relied on a 2004 U.S.
Supreme Court decision, Intel Corp. v.
Advanced Micro Devices.
The Eleventh Circuit had not ruled on
the tribunal issue, but before Intel, the
Second and Fifth circuits had closed the
doors of U.S. courts to discovery requests
from foreign arbitral bodies. They did
not interpret Intel to require revisiting
those rulings.
“The Eleventh wasn’t constrained by
a prior precedent and so looked at this
fresh,” Mullins said. The court was free
to consider the growing importance of
arbitration around the world.
“International arbitration is by far the
most popular and common method of
dispute resolution in foreign countries
when dealing with sophisticated litigation,” he said.
A motion for rehearing en banc is
pending.
In the meantime, the case is cited
across the country to support broad discovery requests, Mullins said.
“It shows a progressive, pro-arbitration stance for Miami and all the cities in
the Eleventh Circuit.”

7. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012
Finalist
Economic-costs analysis keys
developer’s win over stork, snake
Douglas Halsey
White & Case
Timing is crucial in the shopping mall
development business, and an extra $1
million is a lot of money. If the Sierra
Club had its way, developers of a massive
town center project would have had to
spend that much and postpone building
a year or two for an elaborate environmental review.
So when the Sierra Club filed suit in
2007 to stop construction of the Cypress
Creek Town Center near Tampa, the developers turned to a White & Case partner with environmental litigation experience to help them out.
On Nov. 29, 2011, the U.S. Court of
Appeals for the D.C. Circuit handed
Douglas Halsey and his Miami legal
team a victory. They had to overcome a
federal district judge’s ruling that could
have set an economically disastrous
precedent for their clients, R.E. Jacobs
Group LCC and Sierra Properties I LLC,
and for other developers.
Instead, Halsey emerged with a decision that clarifies guidelines for cost
considerations under the Clean Water
Act, the federal law that governs every
wetlands project.
“The important thing is it gave the appropriate level of discretion to the [U.S.
Army] Corps of Engineers,” which issued
permits for the 1.5 million-square-foot
development in Wesley Chapel, Halsey
said. The mall, restaurants, residences
and movie theaters are expected to be
completed in spring 2014.
“Courts are not supposed to secondguess the decisions of agencies in their
areas of expertise,” Halsey said, and the
appellate court agreed. “It’s a welcome
reaffirmation of that because there are
times when district court judges act like
a superagency and think it’s their job to
reweigh all the evidence.”
The
Sierra
Club’s
“clients”
were the indigenous wood stork
and the Eastern
indigo snake, and
the group argued
the project’s impact on their habitat had not been
fully explored beDouglas Halsey
fore the Corps issued the permits.
Under the Clean Water Act, the Corps
must consider whether “practicable alternatives” with “less adverse effect” exist for every wetlands project, taking into
consideration logistics, technology and
costs.
Determining the economic costs is the
crux of the analysis before the court. The
historical cost of the land purchase many
years ago was low. But the opportunity
cost of changing the project by moving
it or offering less parking at the present
site was high.
The Sierra Club, focusing on the historical cost, said it would be practicable
to build elsewhere or shrink the parking.
Halsey argued the Corps was right
to consider the property’s fair market
value and an 8 percent rate of return.
Otherwise, “the net return would be
so low we couldn’t attract financing,”
Halsey explained.
The circuit court sent one issue back
to the district court: The Corps failed to
address an expert’s comment that the
project could result in habitat fragmentation for the protected snake. Alabama
believes its Eastern indigo population
has been wiped out.
Halsey said he expects the Corps to
issue a revised environment assessment
concluding the snake’s habitat is safe
“but providing a more detailed, thoughtful explanation.”
FROM PAGE AA5
Appellate: Cantero
won case for Hialeah
slot machines
In the past year, Cantero also left his
mark for client South Florida Racing
Association, owner of Hialeah Park. The
owner wanted to operate slot machines
at the racetrack, but it did not qualify under a 2004 constitutional amendment.
The Legislature tried to fix that in
2009, but Hialeah’s competitors sued.
They lost in the trial court and, thanks
to Cantero, in the First District Court of
Appeal in October 2011.
“Now it’s opened up this public debate about casinos,” he said. “If it had
gone the other way — a ruling that the
constitutional amendment foreclosed
the Legislature from legalizing slots anywhere in Florida — it was going to have
a huge impact on the casino and gambling debate within the state.”
dailybusinessreview.com
AA7

8. AA8
dailybusinessreview.com MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW
Arbitration
Boca Raton Regional Hospital won
against drug giant AstraZeneca
Alan Lash,
Martin Goldberg,
Justin Fineberg
Lash & Goldberg
A trio of litigators from a Miami boutique took on two powerhouse law firms
and won for their client, a community
hospital that faced off against a multibillion-dollar pharmaceutical conglomerate.
After arbitration, Lash & Goldberg
landed a $7 million judgment for the defense April 11.
Sidley & Austin of Los Angeles and
Fowler White Boggs of Tampa represented drug giant AstraZeneca, owner of
Comprehensive Cancer Centers through
its Aptium Oncology subsidiary. Though
the cancer center lawyers kicked off the
litigation with a $43 million damage
claim, they finished with nothing but an
IOU for attorney fees.
Lash got the job when he was contacted by the then-general counsel for
the defendant, Boca Raton Community
Hospital, now called Boca Raton
Regional Hospital. Lash & Goldberg has
a concentration in complex commercial
health care disputes.
The case, which went to arbitration
before former Third District Court of
Appeal Judge Melvia Green, was certainly complex.
J. Albert Diaz
Justin Fineberg, Martin Goldberg and Alan Lash took on two powerhouse law firms and won
for their client, a community hospital that faced off against a multibillion-dollar pharmaceutical
conglomerate.
Aptium terminated its contract to
run the hospital’s cancer center in July
2009. Five months later it filed a federal lawsuit claiming the hospital had
violated the contract in several ways. It
also accused the hospital of interfering
with a prospective business relationship
by contacting the University of Miami
and threatening litigation hours before
Aptium and UM were to sign an agreement to open a cancer center in Broward
County.
The hospital countered with a wrongful termination demand. The defense alleged the termination was a pretext for
getting out of a deal that had unraveled
because of Aptium’s mismanagement:
Aptium lost more than $20 million on
the Lynn Regional Cancer Institute-West,
which it closed in 2010.
“There were numerous depositions and thousands of documents exchanged,” Lash said. “It was a very large,
complicated case because of the many
different issues that had to be tried.”
Multiple expert witnesses for each
topic converged from across the country.
The final hearing required two weeks in
June 2011 and a third week in October
2011.
Lash, Goldberg and Fineberg worked
the case as a team. At the final hearing,
especially on cross-examination, their
individual strengths shone, according to
Lash.
Goldberg, a former federal prosecutor, would not let an Aptium expert establish that the market reimbursement
rate for cancer drugs was higher than
Goldberg knew it to be.
“He completely refuted the theory
that the expert was trying to advance,”
Lash said.
Fineberg, who steeped himself in
the details of a number of depositions,
brought Aptium’s employees to heel, one
in particular.
The employee was testifying about a
document that revealed Aptium was trying to find a way out of the hospital contract because of its cancer center losses.
“That document was prepared by
[the employee] who Justin crossed in the
final hearing, and he just did a masterful
job,” Lash recalled.
When Green issued her 61-page decision, the hospital got $4.5 million for
Aptium’s breach of contract and $2.5
million that Aptium had collected from
third parties.
Finalist
Nearly $10 million settlement helped ease insurance losses
Richard Lydecker
Lydecker Diaz
The largest insurance liquidation in
Florida history, a year after Hurricanes
Katrina and Wilma hit the state, left behind an enormous number of financial
casualties.
But when a reinsurance company
claimed it had been the victim of a related fraud, Richard Lydecker and two
lawyers from his firm moved aggressively to prove otherwise. Their success was
demonstrated by a $9.7 million settlement wrested from Everest Reinsurance
Co. before the case went to an arbitration hearing, saving attorney fees that
could easily have topped $1 million.
In 2006, regulators sued nine companies comprising the Poe Financial
Group led by former Tampa mayor Bill
Poe Sr., alleging
the officers and
directors schemed
to divert $144 million to themselves
from storm claims
while the companies headed toward bankruptcy.
Unpaid claims
totaled $1.1 bilRichard Lydecker
lion. The Florida
Insurance Guaranty Association imposed a surcharge that still shows up on
every Florida homeowner’s insurance
bill: $20 for every $1,000 in premiums.
“It’s really unfair to the people of the
state of Florida that they get stuck holding the bag,” Lydecker said.
The Florida Department of Financial
Services hired Lydecker, a former prosecutor, and his Miami firm, which does
a lot of white-collar criminal and civil
work, to review the losses and retrieve
as much as possible.
In addition to the $9.7 million from
Everest, they have recovered about $10
million from a settlement in the bankruptcy of a Poe subsidiary.
Far bigger bucks remain out there. A
suit against Deloitte, the Poe companies’
accounting firm, seeking $500 million to
$1 billion, is still in discovery. The 2006
case against the officers and directors
seeking damages of $600 million to $1
billion also is pending.
In July 2011, the state filed a claim
against New Jersey-based Everest attempting to recover almost $13 million.
Everest’s response was a counterclaim
asserting it was a victim of the Poe companies’ fraud and seeking $90 million in
damages.
Working with Lydecker, the lead atsee page AA11

9. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012
dailybusinessreview.com
AA9
Finalist
Litigator helped woman win medical malpractice arbitration
Nancy La Vista
Clark Fountain La Vista Prather Keen & Littky-Rubin
Nancy La Vista, a West Palm Beach litigator who specializes in medical malpractice, has always preferred to
take her case to a jury.
She’s had a lot of positive reinforcement. In 2008,
she won a $35 million verdict for a brain-damaged
child. It was the largest med mal verdict in Broward
County and a top-100 verdict in the nation that year.
“I really believe in trial by jury,” said La Vista, a former critical-care nurse. “I believe it’s the best system
we have if everybody honors it honestly.”
Nevertheless, the client is the boss, and last year she
listened to hers — a woman pushing 60 with useless,
deformed hands that may eventually have to be amputated.
The client wanted arbitration. She had been treated
in 2006 and, five years later, faced more continuances
that stalled her turn in court.
La Vista turned to arbitration and brought in associ-
ate Tim Murphy to assist. On Nov.
3, 2011, retired Broward Circuit
Judge Leonard Fleet ordered
a $6.32 million award for their
clients Belinda and Scott Burns
of Fort Pierce. Belinda Burns,
who was a county maintenance
worker, is to get $500,000 for
lost earnings, $4.32 million for
medical expenses and $1 million
for pain and suffering. Her husNancy La Vista
band, Scott Burns, is to receive
$500,000 for loss of consortium.
“They were pleased with the award,” La Vista said.
“Mrs. Burns’ biggest goal was to hold the doctor accountable, and that part she got. She’s able to tell the
world, ‘Look what he did to me.’ ”
Belinda Burns went to the Mid-Florida Radiation
Oncology Inc. clinic in Vero Beach to be treated for
squamous cell skin cancer growths on her hands.
Dr. Ronald H. Woody III administered radiation in a
dosage that was 50 percent above normal, a plaintiffs
expert testified at the arbitration hearing. As a result,
“Burns’ hands are like rocks,” dermatologist Darrell
Rigel said.
La Vista said her client needs assistance with all activities of daily life. “She can’t clean her own house. Her
husband does all that. It’s truly tragic.”
Woody argued a dermatologist made all the decisions, he was just a technician, Burns agreed she
wouldn’t sue in exchange for the clinic waiving her
medical bill, and his treatment met the required standard of care, La Vista said.
“The arbitrator found that his testimony about it being acceptable care was not believable,” she said.
After the ruling, Woody claimed he never agreed to
binding arbitration and filed an appeal in circuit court.
On Aug. 2, he sought Chapter 11 bankruptcy protection. Records show his Port St. Lucie Ventures Inc. is
doing business as Port St. Lucie Cancer Center. Woody’s
medical license is clear and active with no recorded disciplinary action.
La Vista referred the matter to a bankruptcy lawyer.
Unless a judge decides the Burnses’ claim cannot be
discharged, they will be treated as creditors.
Bankruptcy
Berger Singerman team tackles recovery effort in mortgage scam
Paul Singerman,
Howard Berlin,
Kris Aungst and
Jesse Cloyd
Berger Singerman
Federal agents executed search warrants on Ocalabased Taylor, Bean & Whitaker Mortgage Corp., the
largest independent mortgage originator in the United
States, on Aug. 3, 2009.
In the month of its demise, operations froze on servicing 512,000 loans with an unpaid principal balance
exceeding $80 billion.
At the time, TBW was in the process of obtaining
Troubled Asset Relief Program bailout funds on its acquisition of a controlling stake in Colonial BancGroup of
Montgomery, Alabama. The TARP application triggered
an investigation.
“A Colonial employee tipped off federal investigators to fraud going on between Colonial and TBW. TBW
was one of Colonial’s biggest customers,” said Howard
Berlin, a partner at Berger Singerman in Miami.
Eleven days after the raid on TBW headquarters, the
Federal Deposit Insurance Corp. seized Colonial Bank.
It was the largest bank failure in 2009 and the sixthlargest bank failure in U.S. history.
A seven-year scheme was uncovered in which TBW
chairman Lee B. Farkas fraudulently hid cash shortfalls
through a series of fund diversions and fake transactions. In Farkas’ criminal case, losses to creditors were
set at $2.9 billion. He received a 30-year prison sentence last summer.
U.S. Bankruptcy Judge Jerry Funk in Jacksonville
made Neil Luria of Cleveland the plan trustee, and
Luria retained Berger Singerman to oversee recovery
efforts. Claims against TBW continued to mount and
now stand at $10 billion.
Berger Singerman was named counsel for the credi-
J. Albert Diaz
Kristopher E. Aungst, Howard J. Berlin, Paul S. Singerman and Jesse Cloyd of Berger Singerman represented Taylor Bean’s trustee.
tors committee in 2009. Paul Singerman was lead attorney, and Howard Berlin, Kris Aungst and Jesse
Cloyd assisted.
Berlin said the heavy lifting came in 2011 when the
avoidance actions got a full head of steam — 387 cases
were filed to recover transfers of more than $280 mil-
lion lost through preference or fraudulent conveyances.
“Fraudulent conveyances were typically monies
TBW spent paying for Farkas’ lifestyle — he acquired
jets, yachts, homes — and he bought businesses such
see page AA12

10. AA10
dailybusinessreview.com MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW
Finalist
Arnstein & Lehr attorneys worked bankruptcy case
with $130 million at risk in Doral developement
Phillip M. Hudson and
Michael Denberg
Arnstein & Lehr
The attorneys represented BTI
Partners in a bankruptcy case where the
Hollywood-based land developer had a
$130 million investment at risk.
The real estate market crashed
around the time the Town Center
at Doral’s developer, Elie Berdugo,
died. BTI asked Landmark at Doral
Community Development District, the
conduit for nearly $71 million in CDD
bonds, to foreclose.
Town Center stayed the foreclosure
suit by filing a Chapter 11 petition in
September 2011. A third party, Miami
developer Pedro Martin’s Terra World
Investments LLC, offered up to $20
million to fund a reorganization plan,
Michael Denberg
Phillip M. Hudson
but BTI and the district opposed a plan
because it required a substantial writedown of the bond debt.
“We had to convince the bank this was
not a valid bankruptcy,” said Hudson,
who along with Betty Shumener, a partner at Shumener, Odson & Oh in Los
Angeles, handled all litigation and the
bankruptcy aspect for BTI Partners.
The CDD had legal standing to sue
on behalf of BTI, which held the bonds
Berdugo obtained to pay for infrastructure.
One problematic issue was that a
bankruptcy judge in Tampa ruled in
August 2011 that bondholders should
not be considered creditors and therefore had no say in reorganization plans.
Bond markets took notice, and there
was fear this would have a chilling effect if the Tampa ruling spread to other
courts. Denberg, a real estate attorney,
handled all transactional aspects related
to the real estate and bond documents
and worked with the bankruptcy attorneys for more than a year.
The legal team had to creatively
make a compelling argument that would
give bondholders standing as creditors.
Hudson and Denberg concentrated on
the constitutional issues and federal and
state taxing powers to argue bankruptcy courts cannot usurp the authority of
community development districts before
U.S. Bankruptcy Judge Robert Mark in
Miami.
“We filed our own plan. We convinced
the judge that the landowner’s plan
wouldn’t work,” Hudson said.
BTI submitted its own plan and on
June 22 was allowed to take the property — almost 120 acres of land that will
be split among two or three buyers expected to pay a combined $80 million to
$100 million. Ultimately, the land will be
used for single-family residential, multifamily housing and commercial purposes.
“It’s possible the entire outstanding
debt will not be repaid,” Hudson said.
“However, BTI is in a better position
than it would have been otherwise.”
The decision means developers cannot come into bankruptcy court and get
a discount at the expense of bondholders.
The work of Hudson and Denberg is
likely to have far-reaching consequences for other CDD bondholders, Hudson
said. There are more than 600 CDDs in
Florida, and about one-third of them are
in default.
Business Litigation
Litigators reached $170M settlement for
defrauded Rothstein investors in state court
William Scherer
Conrad & Scherer
Harley Tropin
Kozyak Tropin & Throckmorton
It cost $50 million in legal fees to prepare a case
on behalf of 55 Razorback investors defrauded in Scott
Rothstein’s Ponzi scheme, but the effort paid off with
a $170 million settlement — the largest in Broward
Circuit Court history.
After two years of preparation and on the eve of
trial in February, litigators William Scherer and Harley
Tropin reached the agreement to settle their suit against
TD Bank for conspiring to aid and abet Rothstein’s $1.2
billion dollar fraud.
The settlement amounted to more than 90 percent of the Razorback investor losses of $186 million,
said Scherer, a partner at Conrad & Scherer in Fort
Lauderdale. Within a week, the clients received their
share — $120 million. Legal fees were $50 million.
A few days later, the attorneys reached a $10 million
cash settlement for their clients with a co-defendant,
Gibraltar Private Bank & Trust of Coral Gables. The attorneys are still working to collect another $10 million
from Gibraltar’s insurer.
A third co-defendant, New York-based Platinum
hedge fund, settled for an undisclosed amount.
TD Bank and Gibraltar held accounts that were used
to funnel investment funds to Rothstein. The bilked investors accused the banks of colluding with Rothstein.
“We ran this case like a large business,” said Scherer.
“We met every Friday for the two years that we litigated
until the settlement, and we are still meeting. “We took
over 100 depositions; the transcripts were hundreds of
thousands of pages. Some of them went on for days.”
Scherer said early on he knew the case was too big
for his 27-lawyer firm, and he asked Tropin to come
in as co-counsel. The two firms had 21 lawyers and
about the same number of legal assistants working on
the case.
He said his firm had extensive experience with Ponzi
scheme litigation.
“Our job was to shape the case in a way we could
bring it to trial quickly and with the legal theory that
would streamline and unify the case.” He said ultimately they chose to go with a conspiracy-fraud strategy.
Candace West
J. Albert Diaz
William Scherer, left, and Harley Tropin coordinated efforts for money-losing investors suing TD Bank.
“They conspired together with Rothstein to aid and
abet him in what he did.”
The firms split the depositions. “That was one of the
reasons we needed the additional troops,” Scherer said.
They did a mock run of the trial nine times.
Scherer coordinated 10 days of depositions of Scott
Rothstein last December. He spent 2½ days taking
Rothstein’s deposition himself.
Settlement momentum picked up after TD Bank lost
a $67 million verdict to the Coquina investor group in
January in Miami federal court.
Scherer said the trial acted as a dry run for
Razorback. “Of course our case was the same. I think
TD forced that case to go to trial because they wanted
the experience for my case, which was a lot bigger.”
Razorback investors also received $4.5 million in a
settlement with Rothstein’s accounting firm, Berenfeld
Spritzer Schecter & Sheer of Coral Gables.
“We kept pressing and pressing, and we worked a lot
of weekends, and we worked a lot of nights. We all felt
this was going to be a milestone case for us,” Scherer
said. “I kept telling my lawyers, ‘Cherish every moment
of this. No matter how successful you are, these cases
”
come around only once in a lifetime.’

11. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012
dailybusinessreview.com
AA11
Finalist
Finalist
Case set high bar for
sustained aiding and
abetting fraud case
Litigator helped Dollar Tree
fight Winn-Dixie on lease terms
David Mandel and
Nina Mandel
Mandel & Mandel
A $67 million federal jury verdict
in favor of a group of Texas investors revealed how TD Bank aided Fort
Lauderdale attorney Scott Rothstein’s
$1.2 billion Ponzi scheme and set in motion a string of settlements to follow.
After 22 days of trial and only 4½
hours of deliberations, the jury awarded Coquina Investments $32 million in
compensatory damages and $35 million
in punitive damages Jan. 18.
Since the Cherry Hill, New Jerseybased bank posted an appellate bond,
the 15 Coquina investors cannot collect on the award with the case pending in the U.S. Court of Appeals for the
Eleventh Circuit.
Eventually, the Coquina investors’
share of the total award is expected to
be $49 million plus interest and minus
legal fees. The trustee in the Rothstein
Rosenfeldt Adler bankruptcy case gets a
portion of the award — $18 million —
for the estate. When claims in bankruptcy against the estate are finally settled,
Coquina will be eligible to get some of
that back.
After the trial ended, evidence trickled
out showing the bank and its law firm
at the time, Greenberg Traurig, failed
to turn over damaging evidence during pretrial discovey. U.S. District Judge
Marcia Cooke in Miami ordered sanctions against the bank and the lawyers.
Plaintiffs attorney David Mandel,
managing partner of the husband-andwife litigation firm Mandel & Mandel in
Miami, said the case has broader implications because it’s the first time a major
financial institution was held responsible for a Ponzi scheme conducted by a
customer.
“It established the high water mark
for what is necessary in a sustained aiding and abetting fraud case,” he said.
“The evidence in the case is unusual because there is tremendous evidence of
insider conspirators at the bank.”
The Mandels began work on the case
in early 2010.
In addition to the Mandels, the team
Nina Mandel
David Mandel
included two associates and two paralegals. They hired an electronic discovery consultant to help sift through about
1.5 million documents. Nina Mandel
handled most of the bank witnesses and
took depositions of bank officials in New
Jersey and New York.
Nina Mandel said one of the first
things they did was seek preservation
of surveillance videos at the Weston
branch, where Rothstein put on road
shows to attract new money.
“That was an unusual part of the
fraud case — when we realized that
Rothstein would go from his office on Las
Olas [Boulevard] and drive across town
to meet with investors at the branch in
Weston,” she said. At trial, they played
the videos showing fraudulent documents and, at various times, Rothstein,
his uncle, a bank official and unwitting
investors.
The trial had its share of drama when
the bank’s fired regional vice president,
Frank Spinosa, repeatedly asserted his
Fifth Amendment right to refuse to answer questions on the grounds that it
might incriminate him.
“He took the Fifth to every question
we asked. You can imagine the impact
on the jury. He had a criminal defense
attorney,” said David Mandel.
Since the verdict, cases brought by
other investor groups against TD Bank
and co-defendants have been settled for
more than $200 million.
Mandel opened his practice in 1997.
He and Nina Mandel are former Miami
federal prosecutors.
“It was fun — we’ve been in practice
for a while but we never tried a case [together] before,” David Mandel said.
Mandel & Mandel is working on the
appeal with the Washington office of
Gibson Dunn & Crutcher.
FROM PAGE AA8
Arbitration: ‘Hard-line approach’
torneys for the Everest litigation were
partner Alan Feldman and Seth Coblentz,
a senior associate.
“We took a very hard-line approach
in the settlement discussions and in the
documents requested,” Feldman said.
At the same time, Coblentz built a relationship with Everest’s in-house counsel.
“We identified for them and their counsel
Florida case law, when they were relying
on New York case law,” he said.
With talks stalling, the Lydecker lawyers filed for arbitration. The counterclaim died with the settlement.
About 18,000 documents were produced in a related state court proceeding, and every one was analyzed before
about 50 useful papers were identified.
“You had to go through the haystack
to get to the needles,” Lydecker said.
One was a 2005 letter from an
Everest official to a Poe executive stating audits had found an ongoing reserve inadequacy. Yet Everest renewed
Poe’s reinsurance.
“It’s a strong document to defeat
their counterclaim and to bolster our
position,” Feldman said.
Steve Silverman
Kluger, Kaplan, Silverman,
Katzen & Levine
Winn-Dixie’s effort to keep discount
stores like Dollar Tree from competing
by selling groceries in neighboring locations was cut short by a federal ruling
based on a creative defense by Kluger
Kaplan Silverman Katzen & Levine.
“The economic impact is huge,” said
Steve Silverman, the business litigation partner who led the trial team for
Chesapeake, Virginia-based Dollar Tree.
Silverman said the ruling struck down
old definitions that Winn-Dixie has been
using for “groceries” and “shelf space”
and greatly expanded the ability of discount retailers like Dollar Tree to sell
competing products.
When he was tapped in June 2011 by
the general counsel of Dollar Tree to handle the trial, Silverman said he found he
was up against a wall of case law from
different courts in several states that favored Jacksonville-based Winn-Dixie’s
exclusivity rights in its leases.
“Winn-Dixie had litigated [exclusivity
rights] about seven times … and won all
seven of those cases. They had amassed
a body of law from appellate decisions
that was incredibly favorable, and this
is why this case was challenging and incredibly difficult to win,” he said.
On Aug. 13, U.S. District Judge Donald
Middlebrooks in West Palm Beach ruled
only 10 of 136 claims by Winn-Dixie
against discount retailers broke the exclusivity agreements.
The case involved stores in five
Southern states with the majority of locations in Florida.
Silverman had to get the court to accept updated definitions of groceries and
shelf space — the two heavily contested
issues in the case.
“The prior definitions were that groceries included almost everything sold
in a supermarket
from food to paper products to
kitchen gadgets.
We said, ‘Noooo,
that’s not what
it means. These
leases were executed in the ’50s.
We went through
the historic definiSteven Silverman
tion of what groceries are … and [the judge] agreed —
groceries means food.”
Next, discounters needed a ruling
about the percentage of space their
stores may devote to groceries.
“Winn-Dixie said the shelf area includes half the aisle because that’s where
people stand. Judge Middlebrooks said,
‘No, you don’t include the aisle space;
”
you include the shelf space.’
Winn-Dixie has appealed to the U.S.
Court of Appeals for the Eleventh Circuit.
Silverman will represent Dollar Tree in
the appeal.
Winn-Dixie has been suing not only
Dollar Tree, but other retailers like Big
Lots and Dollar General over noncompete clauses in its leases.
It was Silverman’s first assignment for
Dollar Tree. Since the ruling, he has been
litigating cases for them in other courts.
Winn-Dixie sought $15 million in
damages, but Silverman said the economic impact is much greater than that
because Winn-Dixie wanted the discounters to stop selling groceries completely.
“That could have shuttered some of
these stores. When you think about the
potential sales my client will be able to
do in the future, it dwarfs the $15 million,” he said.
Winn-Dixie did not respond to a request for comment by deadline.

12. AA12
dailybusinessreview.com MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW
Class action
Attorney helped make deal with Chinese drywall manufacturer
Ervin A. Gonzalez
Colson Hicks Eidson
J Albert Diaz
Ervin Gonzalez helped win a drywall verdict in
a closely watched case.
In the summer of 2009, thousands
of defective Chinese-made drywall
claims surfacing nationwide were
consolidated in New Orleans federal
court.
A 15-member plaintiffs steering committee was formed, and U.S.
District Judge Eldon E. Fallon put
three South Florida attorneys on it —
Robert Josefsberg of Podhurst Orseck;
Victor Diaz Jr., now with VM Diaz &
Partners; and Ervin A. Gonzalez, a
partner at Colson Hicks Eidson in
Coral Gables.
“Ervin’s a constant source of energy. He’s like the Energizer Bunny,”
Josefsberg said. “He’s working very
hard at it. He’s even got a place to stay
in New Orleans. Ervin doesn’t do anything halfway. He’s devoted himself to
that case, and he’s also working the
BP case. The fact is Ervin’s done so
much more than others on the committee, including myself.”
Since at least 2004, defective
Chinese drywall was being used by
the home-building industry to the det-
riment of homeowners. Toxic fumes
escaping from wallboard was suspected of producing noxious odors and
corroding air conditioning units and
other metal fixtures. The only solution
was to remove the drywall, but most
homeowners could not afford the cost.
As a member of the PSC, Gonzalez
was assigned a bellwether case, Armin
and Lisa Seifart v. Banner Supply.
“It was a consolidated proceeding
between the federal court and MiamiDade Circuit Judge Joseph Farina,”
Gonzalez recalled. “It was chosen because it was well-suited to determine
the liability of a distributor of Chinese
drywall. The Seifart home had all its
drywall from the same manufacturer,
the same distributor and it was reflective of damages in other homes.”
The 2010 trial had to prove a direct
link between damage and the drywall
manufacturer.
Gonzalez and partner Patrick
Montoya showed a causal link and obtained a $2.5 million verdict. Liability
was established, not just for the manufacturer but, under negligence and
strict liability, for the distributors.
Concurrent with this seminal case,
Gonzalez was part of the steering
committee’s strategy development
and participated in settlement talks.
Gonzalez traveled extensively for
the global discovery process, conducting key depositions in China, Europe
and the United States.
He helped gather and analyze hundreds of documents and damage as-
Finalist
sessment evidence to establish causation, liability and total damages.
The steering committee faced a
multibillion dollar manufacturer,
Knauf, with virtually unlimited resources.
The scale of the litigation required
enormous hours spent in discovery.
And the major defendants were foreign, which meant corporate officers
and executives had to be served under
Hague Convention requirements.
Gonzalez helped orchestrate a $55
million settlement with Banner Supply
last year, and that appeared to be the
turning point.
“Knauf recognized that as manufacturer it had the most culpability and would be bearing the brunt,”
Gonzalez said.
Last December, the steering committee announced Knauf’s Chinese
holding, Knauf Plasterboard Tianjin,
reached an agreement that would pay
out $600 million to $1 billion.
“Ervin has been a zealous advocate
for what each of us believe is in the
best interest of the homeowners,” Diaz
said. “At times, we have disagreed.
More often than not, we have agreed.
We have enormous respect for each
other’s talent and courtroom skills.”
Since the Knauf settlement,
Gonzalez helped negotiate an $80 million settlement in June with insurance
companies for many builders and installers. At this point, the job is considered half done.
FROM PAGE AA9
Trio negotiated overdraft fee settlements with large banks Bankruptcy:
Robert Gilbert
Grossman Roth
Aaron Podhurst
Podhurst Orseck
Bruce Rogow
Bruce Rogow P.A.
For more than three years, multidistrict litigation has been waged against
many of the nation’s largest banks for
their overdraft fee practices.
Class action litigation by customers alleged the timing of transactions
was manipulated to unjustly enrich the
banks at the expense of account holders.
More than 150 lawyers from two
dozen law firms nationwide have been
managed by the coordinating team of
Robert Gilbert at Grossman Roth in Coral
Gables, Aaron Podhurst at Podhurst
Orseck in Miami and Nova Southeastern
University law professor Bruce Rogow.
From November 2011 to September
2012, the MDL coordinating counsel
helped negotiate settlements to final or
preliminary approval with 14 banks.
These include settlements of $138 million with Citizens Financial Bank, $110
million with Chase Bank, $90 million
with PNC Bank and $62 million with TD
Bank.
In all, $584 million in settlements
were reached in the past year. This is
in addition to a $410 million settlement
reached the previous year with Bank of
Robert Gilbert
Aaron Podhurst
America.
In describing the monumental coordinating effort, Gilbert said he put in 18- to
20-hour days, six days a week.
“This involved organizing and overseeing litigation teams, running day-today discovery and briefings against each
of the individual banks, leading settlement discussions with banks in mediation or, if settled, post-mediation directly,” Gilbert said.
Rogow joined Gilbert in 2009 as chief
architect of the arguments presented
to Senior U.S. District Judge James
Lawrence King in Miami, both in written briefings and oral argument.
Since 2011, Podhurst was by Gilbert’s
side as co-counsel and was involved in
nearly every settlement negotiation.
“As a senior statesman in the bar,
Aaron is someone who’s been through
these battles before,” Gilbert said. “His
contribution has been invaluable.”
The overdraft fee litigation encountered two major legal challenges. First,
every bank asserted as its primary
defense a federal
pre-emption under the National
Bank Act, maintaining they could
not be held liable
for their practices
under state common law.
Wells Fargo,
Bruce Rogow
which did not
settle, is appealing a $210 million judgment in a California case on the federal
pre-emption issue. Argument has been
heard, and a decision is pending in
the U.S. Court of Appeals for the Ninth
Circuit.
However, King rejected the federal
pre-emption argument at the motion for
dismissal stage.
The second issue involved compelling arbitration. The U.S. Supreme Court
protected the enforceability of arbitration clauses in consumer contracts last
year, but King ruled the banks weren’t
protected.
Even with the legal questions unresolved, many banks opted to settle in the
interest of improving customer relations.
400 cases went
to mediation
as restaurants, nightclubs and gyms for
himself, family and friends,” Berlin said.
Through
September,
Berger
Singerman has recovered $132 million.
The law firm also is helping the trustee
sell assets and preparing other lawsuits
with a goal of recovering more than $1
billion.
The case has involved formidable
logistics. Each of the hundreds of cases
had to be researched and analyzed before filing. About 400 mediations were
scheduled and held in Orlando and
Miami.
Many of the defendants were businesses that sold goods to Farkas, only
to realize later their goods were bought
with stolen funds.
This caused great frustration for the
business owners as the fraud became
apparent to them as well, Aungst said.
Nearly all matters identified in formal
mediations or informal settlement discussions were successfully resolved.

13. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012
dailybusinessreview.com
AA13
Corporate Securities
H&K trio successfully defended
U.S.-listed Chinese companies
Tracy Nichols,
Louise McAlpin and
Stephen Warren
Holland & Knight
A team of Holland & Knight attorneys
successfully resolved two securities class
actions and a derivative action involving
U.S.-listed Chinese companies.
One of the class actions and the derivative action targeted Elsa Sung, former chief financial officer of Jiangbo
Pharmaceuticals Inc., who lived in
Plantation.
Jiangbo shareholders filed suit in July
2011 claiming the company overstated
its cash balances, failed to disclose a
related-party transaction and refused
to cooperate in an internal investigation
of accounting issues. The company’s
China-based officials then failed to submit required filings to the Securities and
Exchange Commission, causing Jiangbo
to be delisted from Nasdaq and administratively dissolved as a Florida corporation. It also defaulted on the class action.
“The Chinese officers and directors
essentially abandoned the company,”
said Louise McAlpin, who was on the
team with litigation leader Tracy Nichols
and fellow Holland & Knight partner
Stephen Warren.
The third case pitted angry shareholders against a U.S. company formed
to acquire SearchMedia Holdings Ltd.,
one of China’s leading media companies.
But after the acquisition, the new owners discovered that prior management
inflated SearchMedia’s financial results.
Shareholders said the American corporate officials made misrepresentations
just like the Chinese.
Nichols said her team argued the acquisition group also was duped.
“We basically made the argument
that why would a U.S. company overpay
for a Chinese company that overstated
its profits,” Nichols said.
U.S. District Judge Kathleen Williams
in Miami approved a partial settlement
and granted partial final judgment and
partial dismissal with prejudice April 24,
allowing the new management to move
beyond the prior management’s fraud.
Importantly, SearchMedia’s directors
and officers insurance fully covered the
mediated settlement.
The Holland & Knight trio had to
educate themselves and U.S. judges on
Chinese law and the many differences in
Chinese and U.S. businesses.
“Chinese law is an ever-moving target. It’s not hard and fast,” McAlpin said.
Nichols said China lacks the strong
protections that safeguard American investors.
“They always keep two, maybe three
sets of books,” she said.
In the Jiangbo cases, U.S. District
Judge Marcia Cooke in Miami found the
company’s reported cash balances were
misleading but agreed with Nichols’
team that the plaintiffs had not shown
Sung acted with knowledge of wrongdoing by other corporate officials. The
shareholders did not name Sung in an
amended complaint.
Although Cooke dismissed the derivative case against Sung on Sept. 4, she allowed the plaintiffs to amend their complaint to state a cognizable claim.
“Now we’re on the second round of
J. Albert Diaz
Louise McAlpin, Tracy A. Nichols and Stephen P. Warren of Holland & Knight.
motions and discovery,” McAlpin said.
But the relatively speedy resolution
of the first round of complaints means
there is still D&O insurance money for
Sung’s defense, the lawyers said.
Nichols said she is perplexed by the
actions of Chinese businessmen caught
violating SEC rules.
“They have no problem hiding in
China. I think you also see the [U.S.]
judges are getting frustrated,” she said.
“The SEC has a difficult time, too, because they don’t have jurisdiction over
there.”
She said reverse mergers and special acquisitions were common vehicles
to enter the Chinese market three or so
years ago but now have become red
flags.
“I won’t be investing in Chinese companies, I can tell you that,” Nichols said.
Featuring: tidbits from around
the water cooler.
Gossipy news from around town.
Only on dailybusinessreviewcom

14. AA14
dailybusinessreview.com MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW
Finalist
Hunton team protected Bahamas investment fund with ties to Madoff
Samuel Danon,
Gustavo Membiela and
Paulo Lima
Hunton & Williams
The 51 named plaintiffs were foreigners who invested in Optimal Strategic
U.S. Equity Ltd., a Bahamas-based fund
that invested most of its assets with con
man Bernard Madoff. The $3.1 billion
fund lost substantially all of its value as
a result of Madoff’s Ponzi scheme.
The plaintiffs asserted federal securities law and state common law claims
against the fund’s Swiss investment
manager, Optimal Investment Services,
Madrid-based parent Banco Santander
and an OIS employee.
“Our engagement began that night,
the day Madoff was arrested. I remember getting a call from the bank that
night,” said Samuel Danon of Hunton
& Williams, who with fellow partner
Gustavo Membiela and associate Paulo
Lima successfully won decisions dismissing 13 of 18 claims — and eventually dismissing the case on the basis of
Samuel Danon
Paulo Lima
forum non conveniens.
“Our position was since this was a
Bahamian fund managed by a Swiss
company and administered by an Irish
firm, another country’s laws would apply,” Danon said.
U.S. District Judge Shira Scheindlin
in New York initially declined to dismiss
the federal claims and rejected Optimal’s
forum argument, saying U.S. courts had
an interest in enforcing securities laws.
Alan Ellman of Labaton Sucharow
in New York led the plaintiffs attorneys,
who included Jack Reise and Michael
Greenwald of Robbins Geller Rudman &
Dowd in Boca Raton.
Danon’s team tailored its discovery
toward showing
all fund purchases were private
transactions involving only foreign entities.
On March 1,
the U.S. Court of
Appeals for the
Second Circuit expounded on the
Gustavo Membiela
issue of extraterritoriality that undermined the Optimal
plaintiffs’ argument that their purchases were subject to U.S. securities law.
Danon succeeded in having five federal
claims dismissed June 4.
“I think finally getting the securities
claims dismissed is something we had to
be persistent on,” Danon said.
Optimal renewed its motion to dismiss based on the forum issue. In a July
16 brief, Danon’s team noted since there
was no longer a federal securities claim,
there was no longer a U.S. interest in
the litigation. Also, they said critical witnesses in Switzerland were not subject to
compulsory process.
“You had this intersection of European
privacy laws combining with U.S. discovery rules,” Danon said.
Getting documents transferred to the
United States also was troublesome.
“Because of the privilege requirement,
they were E.U. documents that had to
stay in the E.U.,” Danon said.
On Aug. 10, Scheindlin agreed that
Switzerland was the more convenient
forum.
“We were persistent and fought hard
to get the result,” Danon said.
As a plus, OIS and Santander no longer face the potential of being named in
class actions over the investments since
Switzerland does not allow class actions.
The plaintiffs filed for reconsideration, but Scheindlin denied the request,
Danon said.
As a sidelight, Danon said the plaintiffs attorneys took a jailhouse deposition
of Madoff. Danon also scheduled time
with Madoff, but the judge wound up
dismissing the case days before.
“As far as I know, it is the only case
where he was deposed,” Danon said.
Criminal Justice
Trio’s defense strategy attacked integrity of sting
Matthew Menchel
Kobre & Kim
Stephen J. Bronis and
Paul A. Calli
Carlton Fields
A.M. Holt
Paul Calli, Stephen Bronis and Matthew Menchel gained acquittals in a Foreign Corrupt Practices Act sting.
Deputy U.S. Attorney General Lanny
Breuer called it the most significant
Foreign Corrupt Practices Act lawsuit
brought by the Justice Department, calling it a “game changer.”
Twenty-two executives and employees of weapon manufacturers throughout the nation were charged with bribing foreign officials to grease a $15 million deal for guns and security gear to
the African nation of Gabon.
The government employed old-fashioned sting techniques used primarily in
drug trafficking cases to attract the executives, meeting some of the defendants
at the Miami Mandarin Oriental Hotel.
But after a series of acquittals and
mistrials, federal prosecutors conceded
they had been bested and dropped the
entire case. Three of those attorneys
came from Miami: Matthew Menchel,
Stephen Bronis and Paul Calli.
The case, for logistical reasons, was
broken up into four trials.
Menchel’s examination of the lead
agent in the first trial set the table for
the second, where Bronis and Calli were
successful.
There never was another trial.
Prosecutors dropped all charges, even
against three defendants who were
awaiting sentencing after pleading guilty.
“I think it’s going to be a sea change
as to the way the government prosecutes
these cases,” Bronis said. “Certainly,
when it comes to the strategy of trying
to use some sort of sting operation, the
government will be hard-pressed to do
this type of thing again.”
Menchel represented Pankesh Pantel,
a U.K. weapons broker, in the first trial
of four defendants. Despite opposition
from other defense attorneys in the
case, Menchel decided to call the lead
FBI agent.
“The approach we took was to put the
government on trial by attacking the integrity of the investigation,” he said.
U.S. District Judge Richard J. Leon in
Washington, who presided over the trial,
praised Menchel in a recent speech, saying, “He systematically took apart the
conducting of the sting operation.”
Menchel was able to show the jury
that the word commission was used, but
never bribe or kickback. He showed text
messages between the lead agent and
the lead informant about defendants
who wanted out of the deal but were
lured back in with assurances it was legal.
“It was no doubt the turning point of
the case. It changed the entire dynamic
of the trial,” Menchel said. “The government thought we were doing it as a bluff
so they would call him. They were completely caught by surprise.”
The jury was deadlocked on all four
defendants in the first trial. In the second trial, the judge dismissed conspiracy
and money laundering counts against
six defendants. He also gave a directed verdict of acquittal to Bronis’ and
Calli’s client, Stephen Giodanella, CEO
of Fort Lauderdale’s Protective Products
International Inc.
Three others were acquitted, and a
mistrial was declared for two other defendants.
Calli said Bronis was able to expose
informant Richard Bistrong, who was
prosecuted for his own FCPA violations.
“I think by the end of Steve’s cross,
people understood that Bistrong
wouldn’t know the truth if it bit him in
the backside,” Calli said.

15. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012
Finalist
dailybusinessreview.com
AA15
Finalist
Attorneys untangle mess to prove wrong Carlos in custody 12 years later,
Marc Seitles and
Ashley Litwin
Law Office of Marc David Seitles
Miami attorney Marc Seitles can’t
stop making the movie analogy when it
comes to his client, Carlos Ortega Bonilla.
But the removal of Ortega from the
tangled mess of a 18-defendant cocaine
trafficking case came about because
of an extraordinary partnership. And
it freed the former head of Colombia’s
equivalent of the Federal Aviation
Administration.
“I should have kept a journal of this
case,” Seitles said. “There were so many
twists and turns and ups and downs.
The entire case from Colombia to extradition to freedom was a roller coaster.”
Seitles and associate Ashley Litwin
teamed up with Ed Kacerosky, a well-respected former U.S. customs agent who
helped bring down the Cali cartel. He is
now a private investigator and consultant.
It also was a rare instance of a defense attorney sitting down with federal
prosecutors and laying out his case of
mistaken identity before trial in hopes of
getting the charges dropped.
Seitles showed the Carlos speaking
on taped phone calls was not his client.
Marc Seitles
Ashley Litwin
Seitles ran into Kacerosky by happenstance at a Bogotá hotel when Kacerosky
was working another case and asked
him to help.
At first skeptical, Kacerosky became
convinced of Ortega’s innocence after
meeting with him.
“Here is this guy who is a government
agent who helped prosecute hundreds
upon hundreds of Colombian drug traffickers working with a guy who represents Colombian drug traffickers,” Seitles
said. “We were like The Odd Couple.”
Ortega was a lifelong bureaucrat with
Colombia’s aviation regulatory agency
who blew the whistle on the lack of airline safety in the Latin American country.
Upon retirement, he went into the business of brokering aircraft.
He was arrested by the Colombian national police and charged in Miami last
year with supplying drug traffickers with
aircraft. Nine appeals in the Colombian
justice system failed, and Ortega was extradited to the United States.
Kacerosky went through hundreds of
hours of recorded calls and confirmed
Ortega had been misidentified.
He found a co-defendant who was
willing to testify Ortega had nothing to
do with the drug ring. They also discovered false grand jury testimony on
Ortega’s role.
Litwin was key in writing all the substantive motions in the case.
“She was the brains behind the motions to try to get the disclosure of early
discovery,” Seitles said.
The U.S. attorney’s office, though, said
it had more than just the wiretaps. It had
a cooperating witness.
Ortega gave Seitles permission to
waive attorney-client privilege and
show his evidence to prosecutors. In an
unusual meeting in August, prosecutors
heard what Seitles and Kacerosky had to
say. Charges were dropped Aug. 31, and
Ortega returned to his native Colombia.
Seitles and Kacerosky waived their fees,
knowing Ortega’s family did not have the
money to pay.
“It was like unpeeling an onion,”
Seitles said. “The more we kept digging,
the more we were certain our client was
100 percent innocent.”
Intellectual Property
For Tripp Scott duo, it’s David v. Goliath Part II
Peter Herman and Alex Brown
Tripp Scott
The corporate giants Peter Herman
slays in court just keep getting bigger.
So do the jury verdicts.
In 2010, Herman was the lead attorney in a case pitting the inventor of a hand
guard for tabletop saws against Home
Depot stores, which hired a third party
to copy his device. A Miami jury awarded
Herman’s client $24 million in royalties,
punitive damages, prejudgment interest,
attorney fees and costs.
Just 1½ years later, Herman and fellow Tripp Scott director Alex Brown had
a repeat victory. A jury in Binghampton,
New York, decided Security Mutual Life
Insurance Co. owed a father-and-son
team $26 million in compensatory and
punitive damages.
“It was a larger company against a
smaller company,” Herman said, calling
both cases classic David-and-Goliath disputes.
Roger and Aaron Banks of Troutman,
North Carolina, designed a computer
program to sign up employees at Lowe’s
home improvement stores for payroll
deductions on life insurance. They christened their company Member Services
Inc. and their software CU@Work.
“The computer system linked up
Lowe’s to the credit union and the insurance company to make it a virtually paperless system,” Herman said.
Member Services struck a deal in
which Security Mutual agreed to provide
the life insurance. But the insurance firm
did more.
“They took the computer system back
to New York, essentially copied it and
shared it with other agents,” Herman said.
Peter Herman and Alex Brown of Tripp Scott
pursued fraud claims on insurance software.
Binghampton was a less-than-ideal
venue for someone challenging Security
Mutual. The insurance company, the largest employer in town, had just pledged
$25,000 to relieve recent flooding.
Despite that, jurors in U.S. Magistrate
Judge David Peebles’ court agreed with
the Bankses.
“They found for Roger and Aaron on
all counts, and the counts included what
we thought was fraud,” Herman said.
Security Mutual played hardball, at
one point canceling policies the Bankses
had written and having their cars towed,
Herman said.
He considered an internal email from
a Security Mutual vice president to be the
most damaging evidence.
“The email basically said ... ‘Why
don’t we just nuke them and go direct?’ ”
Herman said. “I don’t think the jury was
very happy with that email.”
Candace West
He and Brown, on the other hand,
were very happy with the verdict.
“Twenty-six million dollars in
Binghampton is a big deal,” Herman said.
Jurors deliberated only 10 minutes on
compensatory damages, “and $16 million
was not far off from what we asked for,”
Herman said. Punitive damages added
$10 million.
The total made the case No. 1 on
Verdict Search’s list of intellectual property awards in New York last year and No.
75 nationally. Verdict Search is an ALM affiliate of the Daily Business Review.
Herman and Brown filed a satisfaction
of judgment with the court on March 13,
2011. Peebles closed the case the next day
after Member Services agreed to not seek
$12.6 million in prejudgment interest and
other costs. Signed stipulations prevent
either side from making further appeals.
“We took it on a contingency basis, and
it obviously worked out well for everyone,”
Herman said.
defense team erases
woman’s life sentence
David O. Markus and Robin Kaplan
Markus & Markus
David O. Markus
Robin Kaplan
For a decade from the time he left the
federal defender’s office, Miami criminal
defense attorney David O. Markus tried to
get Yuby Ramirez’s life sentence reduced
without success.
Armed with a pair of U.S. Supreme
Court decisions, Markus and associate
Robin Kaplan finally succeeded this year
— 12 years after she was sentenced for
conspiracy to traffic in cocaine.
“She was young, naïve woman who
was taken advantage of by really bad
people,” Markus said. “She should have
not have been given life in prison.”
Ramirez had been offered a five-year
and then a 10-year plea deal before her
attorneys persuaded her to go to trial in
2000, thinking she could do no worse.
But as a defendant tied to the ring run
by outsized cocaine cowboys Willie Falcon
and Sal Magluta, she faced life if convicted
as a member of the drug conspiracy.
Ramirez was accused of allowing
weapons to be stored at her Miami-Dade
home. The guns were used to kill a witness set to testify against Falcon and
Magluta.
The irony is the hit men got six-year
prison sentences in exchange for their
testimony against Ramirez and others
who went to trial.
Markus said after he left the federal defender’s office in 2002, he was approached
by Ramirez’s co-counsel, Reuben Cahn,
who wanted to right his mistake.
“He never gave up on her,” Markus
said. “When you lose a case, it sticks in
the craw for a long time.”
And it did take a long time. U.S. District
Judge Joan Lenard twice refused to consider reducing Ramirez’s sentence. U.S.
Magistrate Judge Barry Garber also said
no.
“Over 10 years, we had four different
appeals, two evidentiary hearings and
eight different briefings in the court of appeals,” he said. “It was really a struggle.”
Markus brought in Kaplan in 2008,
who worked closely with Ramirez in developing the facts for an evidentiary hearing where she and Cahn testified.
The Supreme Court, in two March 21
opinions, extended the right to effective
counsel to criminal defendants to the plea
bargaining process.
Lenard determined in April that
Ramirez’s trial attorneys were at fault for
advising her to go to trial.
The U.S. Court of Appeals for the
Eleventh Circuit directed Lenard to strike
Ramirez’s conviction and ordered prosecutors to renew a 10-year plea deal.
“It was rewarding in a lot of ways, but
it was also a relief to be honest,” Markus
said. “Because when you take on a case
like this, at first you don’t know what you
are taking on and you learn more and
more, you become attached to the person
and more convinced you are doing important and good work.”

16. AA16
dailybusinessreview.com MONDAY, DECEMBER 10, 2012 DAILY BUSINESS REVIEW
Finalist
Carlton Fields team battled cell
phone traffickers large and small
James Baldinger and
Stacey Sutton
Carlton Fields
A T-Mobile trafficking complaint targeted defendants with shallow pockets.
Sherman Terry was serving time in federal prison. George Collett does business
as “Cell Phone George” with ads on eBay
and Craigslist.
U.S. District Judge Ronald Leighton in
Tacoma, Washington, awarded T-Mobile
a little more than $1 million in July and
issued a permanent injunction against
Collett, who also operates a bricks-andmortar shop in Tacoma.
“Definitely it sends a message to other
people out there that T-Mobile is going to
come after you,” said lead litigator James
Baldinger of Carlton Fields in West Palm
Beach.
Traffickers purchase and resell
T-Mobile SIM cards, often recruiting
“runners” on college campuses and inner cities to buy cell phones with the
promise that someone on the inside
will wipe out the resulting accounts,
Baldinger said. There is no inside person, and the accounts are suspended a
month or two after they are opened.
But the SIM cards are used to keep
other accounts operating in an almost
Ponzi-like scheme. Google Voice technology enables the traffickers to add a new
SIM card number to another customer’s
existing account.
“There is a huge conspiracy, really
worldwide,” Baldinger said.
He said customers think they’re buying legitimate cell phones from legitimate dealers.
“They don’t know that the phone they
got actually started out in a Wal-Mart in
Fort Lauderdale,” Baldinger said.
They also are usually looking for a
short-term deal instead of a two-year
James Baldinger
Stacey Sutton
contract.
“Prepaid phones were the most
vulnerable to this type of trafficking,”
Baldinger said. “In the last two years
they’ve graduated to post-paid phones.”
The complaint alleged federal trademark infringement, false advertising,
violations of the Computer Fraud and
Abuse Act, theft of computer data and
civil conspiracy.
Baldinger, who was assisted by
Carlton Fields colleagues Stacey Sutton
in West Palm Beach and Gail Podolsky in
Atlanta, said the judge assessed the bulk
of the judgment against Collett: tripled
damages of $349,482 and attorney fees
of $182,221.
“I don’t think we’re going to collect
much of anything from him,” Baldinger
acknowledged.
But he will continue the battle against
traffickers. So far he has filed 33 suits
against 87 defendants for T-Mobile and
won more than $131 million.
“What happens in almost all these
cases is that the other side settles,”
Baldinger said.
This complaint will make a difference.
“It was really the first time we had a
judge address our claims on the merits,”
Baldinger said.
The Terry case also was unusual for
Baldinger because the defendant was already incarcerated. “It was the first time
I took a deposition in federal prison,” he
said.
Collett currently has ads on Craigslist
for other brands of cell phones.
“Some of these guys we’ve had to sue
multiple times for different carriers. It’s
a shame,” Baldinger said.
And the traffickers, he said, are usually “bright” individuals.
“If they could focus on doing something legitimate, I think we’d all be better
off,” Baldinger said.
Personal Injury
Duo’s work was so effective it made shadow jury cry, led to settlement
John Shipley III &
Christian D. Searcy Sr.
Searcy Denney Scarola Barnhart &
Shipley
Candace West
Christian D. Searcy and John Shipley of Searcy Denney Scarola Barnhart & Shipley reached a $17.5 million settlement.
Veteran trial lawyers John Shipley
and Chris Searcy built a truck-crash
death case so convincing that they made
the defendants’ own shadow jury cry.
Rather than put on a defense, the insurers ponied up an eight-figure settlement
to end it.
Jacksonville retirees Vince Modica,
65, and his wife Judy, 63, were stopped
in a long queue of traffic on southbound
I-95 near the Dunn Avenue overpass in
Jacksonville due to an accident ahead in
November 2006.
A leased tractor trailer operated by
Michael Wright of the St. Augustine-area
health food company Tree of Life Inc.
slammed into the Modicas’ car, shoving them into the truck in front of them.
A fireball erupted. The retirees likely
burned alive.
Wright was returning from Brunswick,
Georgia, at the time of the accident and
had already worked a long day. He es-
caped his burning rig uninjured. He was
fined $500, and his license was suspended. No criminal charges were filed.
Shipley, a 34-year veteran trial lawyer
who specializes in complex medical malpractice and truck-crash cases, shared
the witnesses with Searcy, the firm’s
CEO, rainmaker and a past president of
the American Academy of Trial Lawyers.
“This isn’t a typical car crash,” Shipley
said. “These cases — truck crashes —
are a lot more akin to a medical malpractice case. There’s a ton of paper records
available to help build these cases.”
Trucking expert Forrest Baker of
Heyburn, Idaho, provided key linchpins
for Shipley’s argument that Tree of Life
provided plenty of incentive for drivers to
break the maximum weekly hours permitted under federal law. Baker showed
how the food distributor was rigging its
records as part of a broader cover-up.
Baker speculated Wright fell asleep
at the wheel before the collision. Wright,
who told several inconsistent stories in
sworn testimony, never drove commercially again.
The Modicas’ two adult sons, bluecollar workers in their mid-30s with
families, and a brother-in-law who represented the estate also testified.
Tree of Life’s defense team, headed
by Earl W. Gunn and Mark R. Johnson
of Weinberg, Wheeler, Hudgins, Gunn &
Dial of Atlanta, hired a shadow jury to
hear the trial.
When the plaintiffs rested, Gunn’s
team lost the pro forma arguments for
summary judgment — and never presented a case. The insurance giant AIG
ultimately settled the case for $17.5 million; the best pretrial offer was $4 million.
“After the family testified toward the
end of our case, the real jury was doing a
good job following the evidence,” Shipley
said. But the defense’s shadow “jury —
all of them had red eyes.”
Shipley said the Tree of Life settlement was noteworthy because it is difficult to secure large pain-and-suffering
awards when the victims are approaching their senior years and the survivors
are already productive members of the
community.
“What I think we proved here: It’s just
as bad to lose your parents when you’re
35 or 45 and established in the world
as it is when you’re much younger,” he
said. “They just wanted somebody to
take notice. They just wanted somebody
to care.”

17. DAILY BUSINESS REVIEW MONDAY, DECEMBER 10, 2012
dailybusinessreview.com
AA17
Finalist
Attorney secured $12.6M judgment for teen amputee, mother
Crane Johnstone
Schlesinger Law Offices
Veteran medical malpractice
and personal injury practitioner Crane Johnstone secured
a $12.6 million judgment for a
quadrilateral teenage amputee
and her mother after proving
the University of Miami medical
school had inoculated the girl
with an expired vaccine when
she was 2.
Johnstone, who tried the
case with the help of Charles
Patrick and firm founder
Sheldon Schlesinger, is still trying to collect the full judgment
on behalf of Shaniah Rolle of
Miramar.
Born with intestinal tract
complications, doctors removed
Shaniah’s spleen and several
other organs two
days after
she was
b o r n ,
leaving
her more
susceptible
to
bacterial infecCrane Johnstone
tion. In
October 1998, shortly after
Shaniah turned 2, she was taken to the UM Medical School pediatric care practice for a routine checkup. During that visit,
she was given a vaccine for
people without spleens to help
fight immune system disorders.
In June 1999, Shaniah was
rushed to Jackson Memorial
Hospital after developing a virulent pneumococcal infection —
even though she had been specifically inoculated for pneumococcus just eight months earlier.
The infection caused serious
blood clots in her extremities.
The limbs became gangrenous,
forcing doctors to amputate
both legs and arms above the
joint in two surgeries a week
apart.
Subsequent
investigation
revealed the vaccine, which
has a normal shelf life of two
years, had been expired for five
months at the time it was administered.
“Because they gave her the
expired vaccine, she picked
up the very bug the inoculation was supposed to prevent,”
Johnstone said. “That’s the crux
of the case.”
Originally filed in 2001
against several institutions and
more than a dozen individual
defendants, the suit finally
reached a Miami-Dade Circuit
jury in December 2011. Fiftythree witnesses were called
during the five-week trial. The
jury deliberated three days. The
verdict sparked more litigation.
Over time and several pretrial rulings, the case narrowed
to the UM School of Medicine
and several doctors. Dr. Jeffrey
Brosco was the only doctor
declared liable at trial; the others were cleared. During trial,
lawyers for UM Medical and
Brosco argued Shaniah’s mother, Queen Seriah Azulla Dabrio,
also was responsible for failing
to properly administer penicillin to help battle the infection.
Jurors ultimately accepted this
argument because they assigned 40 percent of the liability
to the mother for her daughter’s
injuries, Johnstone said.
In
post-trial
motions,
Johnstone’s team argued UM
failed to prove any of these allegations. In July, Miami-Dade
Circuit Judge William Thomas,
sided with the plaintiffs. The
original $7.6 million award escalated to $12.6 million.
The odyssey continues. UM
Medical and Brosco have posted an appellate bond. Briefs are
due shortly in the Third District
Court of Appeal.
Shaniah, now 16, attends
Miramar High, where her attorneys say she leads a vibrant life,
including a spot on the cheerleading squad, thanks in part
to state-of-the-art prosthetic
limbs.
“She’s a miraculous kid,”
Johnstone said.
Finalist
Product Liability
Attorney
earns
settlement
after fighting
government
tactics
Schlesinger team won hefty
award for smoker’s family
Jonathan Gdanski,
Steve Hammer,
Crane Johnstone,
Scott Schlesinger
Schlesinger Law Offices
Richard Schuler
Schuler, Halvorson & Weisser
T h e
first biot e r r o rist
act
on U.S.
soil that
claimed
lives: Not
exactly
the basis
Richard Schuler
for a garden-variety negligence claim. It became
a cause, and a career case, for
Richard Schuler’s small West
Palm Beach-based law firm of
six lawyers and two dozen support staffers.
Mere weeks after the 9/11
terrorist attacks on New York
and the Pentagon, a series of
letters containing a lethal strain
of the anthrax bacteria was
mailed to several targets in
Congress and the news media.
Five people died — including
Robert Stevens, 63, a photo editor for the Sun, a supermarket
tabloid based in Boca Raton; 17
became seriously ill; and another 31 tested positive for anthrax
exposure.
Schuler spent the next nine
years building a mammoth
investigative file consisting of
millions of documents while
sparring with the enormous
breadth of federal government
see page AA18
Candace West
Crane Johnstone, Steven Hammer, Jonathan Gdanski and Scott Schlesinger won on bladder cancer claim.
A smoker since age 14,
Johnnie Calloway suffered a
heart attack in 1991 and was
diagnosed with bladder cancer a few months later. After
his death in 1992 at age 59,
his wife, Marvine, sued R.J.
Reynolds Tobacco Co., Philip
Morris USA, Lorillard Tobacco
Co. and Liggett Group LLC for
negligence, concealing the dangers of smoking and products
liability.
A team of four attorneys from
the Schlesinger Law Offices in
Fort Lauderdale convinced a
Broward jury that Calloway
was addicted to smoking and
his smoking led to the bladder
cancer that ultimately caused
his death. While most people
associate smoking disease with
lung cancer, medical specialists
testifying at the trial outlined evidence that bladder cancer also
can result from smoking.
“The unique aspect of this
case is the fact that we brought
it to trial against all four major
tobacco companies,” lead attorney Jonathan Gdanski said. “In
the history of American tobacco
litigation, there has never been
a judgment entered against all
four tobacco companies in one
case until we did it here.”
Gdanski handled the case
leading up to trial including
almost all discovery, depositions of both plaintiffs and
defense experts, and pretrial
motions. The Schlesinger legal
team included Steve Hammer,
who was co-lead trial lawyer;
Crane Johnstone, who crossexamined the three defense
medical witnesses; and Scott
Schlesinger, who cross-examined Phillips Morris’ witness
and handled the rebuttal closing. “Overall, it was a joint effort
by each member of the team,”
Gdanski added.
Noting “tobacco cases can
be very difficult,” Gdanski said,
“Jurors tend to blame smokers for their injuries and usually do not want to put money
in the pockets of family members when the smoker died
from a tobacco-related disease.
Overcoming that initial obstacle is present in every tobacco
case.”
The jury in May divided comparative liability by assigning 25
percent to Philip Morris, 27 percent to Reynolds, 18 percent to
Lorillard, 9.5 percent to Liggett
and 20.5 percent to Calloway.
Normally, the portion assigned
to the plaintiff is subtracted
from the total award. However,
the jury also concluded the tobacco companies concealed or
omitted material information
about the health effects and addictiveness of cigarettes, which
canceled the liability assigned
to Calloway.
That preserved the full
award for Calloway’s survivors.
His widow and daughter, Starr
Williams, were awarded $20.5
million in compensatory damages and $54.9 million in punitive damages. The defendants
are appealing the verdict.
“Marvine Calloway and
Starr Williams are very grateful for what the jury did,” said
Hammer. “This was never really
about the money for them. They
realized the tobacco companies
killed their husband and father,
and justice was done.”