Oral Argument in Zantac MDL

By Jordi C. Martínez-Cid

The Eleventh Circuit, specifically a panel composed of Judge Jordan, Judge Lagoa, and Judge Hernandez Covington (sitting by designation), heard oral argument on the appeal from Judge Rosenberg's 341-page summary judgment order in the Zantac multi-district litigation. The appeal deals with interesting issues of jurisdiction, preemption, the role of courts when evaluating scientific evidence, and esoteric MDL issues. Recording of the oral argument can be found here. While most of the cases related to Zantac are pending or have been settled before State courts, the MDL in our district effects thousands of cases. Some observers, such as Courthouse News, suggest that the panel was sympathetic to the plaintiffs' arguments with regard to their challenges to the Daubert rulings. Regardless of how the panel rules, it will likely be worth a read and will have far-reaching consequences.

Justice Kennedy speaks out

 His memoir, Life, Law, & Liberty, is coming out.  So he is speaking... and saying some interesting things.  From the NY Times:

As a justice, he leaned mostly right, siding with the court’s conservatives to strike down campaign finance laws, to gut the Voting Rights Act and to expand the scope of the Second Amendment. But he joined the court’s liberals in cases on abortion, affirmative action and the death penalty.

Justice Kennedy also turned out to be the greatest judicial champion of gay rights in the nation’s history, the author of the majority opinions in four of the court’s landmark gay rights rulings, culminating in the 2015 decision establishing a constitutional right to same-sex marriage.

The rulings were met by cutting dissents from Justice Scalia, who wrote, for instance, that he would “hide my head in a bag” if he ever joined an opinion that began, as the 2015 one did, with this sentence: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.”

But the blow that really stung, Justice Kennedy wrote, was his colleague’s statement in 2015 that there were no genuine Westerners on the court because “California does not count.”

That comment, he said last week, was “way out of line,” as “my upbringing was very much in the West.”

It led to a rift, one that did not start to heal until the next February, when Justice Scalia came to visit. “We had the conversation right here,” Justice Kennedy recalled, “and he was really concerned that he’d gone too hard. He was in earnest, and he was being honest about the fact that he changed his mind and that he was intemperate.”

Justice Scalia, an enthusiastic traveler, was setting off on a hunting trip in Texas, during which he would die in his sleep. “And the last thing he said was, ‘Tony, this is my last long trip,’” Justice Kennedy said. “Which turned out to have multiple meanings.”

News & Notes

Well, I just finished week 4 of this 3 month civil trial in state court. It makes me truly miss federal criminal cases! More on all of this when I finish, if ever.

In the meantime, some news and notes...

1. A few days ago I posted about the Comey indictment and asked what the strategy should be. Interestingly, no one has raised the Hyde Amendment. Although I made some bad law in this Circuit on the ability of a criminal defendant to recover for a vexatious case, you gotta wonder whether that statute will be employed. Maybe these prosecutions will breathe new life into the Hyde Amendment.

2. Things are changing at the U.S. Attorney's Office. Jason Reding Quinones sent an email around last week naming new sections and new chiefs. Previously, he named Yara Klukas (who was as sitting judge) as First Assistant.

Here are the other changes:

Economic Crimes & Cyber Fraud Section -- Michael Berger

Narcotics Section -- Sharad Motiani

Border and Immigration Crimes Enforcement (BICE) Section -- John Grivner

General Crimes Section -- Joe Egozi

Peter Forand stays on as Chief of Criminal. And Yisel Valdes continues as Deputy Division Chief.

Other Retained Section Leadership: National Security Section – Maria Medetis, Chief
Violent Crimes and Special Victims Section – Brian Dobbins, Chief
Collateral Litigation Section – Susan Osborne, Chief
Public Corruption Section – Ed Stamm, Acting Chief
Civil Rights Section – Ed Stamm, Acting Chief

Reception in Honor of Jason Reding Quiñones

By Jordi C. Martínez-Cid

Last Friday, the Cuban American Bar Assocation put together a reception for the U.S. Attorney for the Southern District of Florida, Jason Reding Quiñones, at Tuyo in Miami-Dade College. His First Assistant, Yara Lorenzo Klukas introduced him and highlighted his record of service in both the courtroom and the military. AUSA Lorenzo Klukas, recently herself on the state bench, noted USA Reding Quiñones's time as a judge and in the U.S. Attorney’s Offices in Miami and Virginia, as well as 22 years in the U.S. Air Force and current role as a reserve lieutenant colonel. The Freedom Tower—visible from the venue, subject of yesterday's post, and potentially neighbor to Trump's future presidential library—was also the subject of a story shared by the new U.S. Attorney from the podium. He relayed how his mother, who was in attendance, slept in the tower her first night in the United States after she fled Cuba.

Lawyers Check out Freedom Tower

 By John R. Byrne

Yesterday, a group of lawyers and Chief Judge Altonaga toured the soon-to-be re-opened Freedom Tower. The museum there is incredible and a must visit if you work downtown (and worth the trip if you don't). The tower was built in 1925 as a home for the The Miami Daily News and Metropolis (later shortened to just The Miami News). But from 1962 to 1974, it served as the Cuban Refugee Center, a help center for Cuban refugees fleeing the Castro regime. The recently updated museum has several very cool, interactive exhibits that memorialize the refugee center.

Picture of the touring group below. Thank you to Boies Schiller partner Laselve Harrison for organizing the tour on behalf of the Federal Bar Association and to former US Attorney and current Colson Hicks partner Bob Martinez for sharing this 1962 article about the Cuban Refugee Program. 

James Comey pleads not guilty

 He’s represented by Patrick Fitzgerald, the former U.S. Attorney in Chicago.  I am not sure if he’s ever represented a criminal defendant who went to trial.  At the arraignment, he said it was the honor of a lifetime to be representing Comey.

If you were representing Comey, what would your strategy be?

Speedy demand?

Vindictive prosecution motion? (If so, speedy trial is tolled).

Talk to the media? (Comey has already given a video statement).

What would you do?

Congrats to Jonathan Osborne

By John R. Byrne

On Tuesday, September 30^th, the Federal Bar Association – Broward Chapter held its Annual Installation Luncheon at the Tower Club in Fort Lauderdale. U.S. District Judge Beth Bloom swore in this year’s Board and President Jonathan K. Osborne. Judge Bloom also served as the event’s featured speaker and shared remarks on the critical importance of safeguarding judicial independence. The Broward Chapter honored outgoing President, Darren Spielman, as well as Latoya C. Brown, and Dora F. Kaufman for their outstanding service to the Broward County federal bench and bar.

Pictures below!

Havana Docks Heading to SCOTUS

 By John R. Byrne

The SDFLA is headed to the Supreme Court. Well, at least a case from the SDFLA. It's the Havana Docks case that we've blogged on several times. 

Brief recap for those who have moved the case off your brain docket. 

(1) A corporation, Havana Docks, sued cruise lines for violating the Helms Burton Act ("trafficking" in the docks and piers that had been stolen from the corporation by the Cuban government).

(2) Havana Docks wins a $400M judgment at the trial level (good for Havana Docks)

(3) Eleventh Circuit overturns the judgment, saying that the corporation's concession to operate the docks expired before the trafficking occurred (bad for Havana Docks)

(4) The Supreme Court grants Havana Docks's cert petition (Havana Docks feeling good again!)

Very exciting stuff. Congrats to Stephanie Casey, Thomas Kroeger, Zach Lipshultz, and Bob Martinez of Colson Hicks. 

Cert order below. Glad to see that the Supremes are still knocking out these orders on typewriters. Somebody's got to keep that industry in business.