Judge Huck visits the 9th Circuit

The Recorder covers the story here (ht Vanessa Blum):

A San Diego lawyer's claim that virtual auctioneer eBay breaches its contract with millions of sellers ran into a marble wall Wednesday in a Ninth Circuit courtroom.
Roy Katriel is trying to bring a class action against eBay Inc. on the ground that the company helps bidders obtain the lowest sale price possible, despite promising in its user agreement to remain neutral in all transactions.
"What they put in the agreement is very specific. They said, 'We are not involved in the actual transaction,'" Katriel told the court Wednesday. "Now it turns out they are."
Under eBay's process, bidders enter the maximum they're prepared to bid. The company's software then discloses only so much as necessary to beat the previous high bid. So if a user authorizes a $50 bid, and the previous high bid is only $40, the user gets the item for $41. That shortchanges sellers, Katriel alleges in Block v. eBay.
There's one glaring problem with his argument. "Doesn't everybody who enters a bid on eBay understand what the system is?" Judge Stephen Reinhardt asked.
***
The third member of the panel, visiting U.S. District Judge Paul Huck of Florida, sounded even more skeptical than Reinhardt and Farris. He compared eBay to a mediation neutral that simply shuttles offers back and forth between parties, with "no dog in the fight."
But, Katriel argued, if a party told the mediator, "I'll pay up to $80, but try to get it for me for less ... he'd be working on your behalf."
Cooley partner John Dwyer, representing eBay, had a far easier time. In fact, he faced zero questions during his 10-minute argument. He said eBay's user agreement "strongly recommends" that users also read about the automatic bidding process, which can be accessed via a drop-down menu. "He never alleges they were misled about how the automatic bidding system works," Dwyer said.
The statement about staying out of the bidding process is only a limitation of liability that makes clear eBay isn't acting as a fiduciary like some traditional auction houses, he said. "What it's saying is, 'Hey, if you think you're with Christie's or Sotheby's, you're not.'"

Law school rankings are out

Here's the latest from U.S. News:

FSU #45 (up from 48)
UF #49 (down from 46)
UM #61 (up from 76)
Stetson #93 (up from 109)
FIU #100 (up from 105)

Not Ranked in the top 150: Nova, St. Thomas, Ave Maria, Barry, Florida A&M and Florida Coastal

Too good not to post

Between Two Ferns with Zach Galifianakis: President Barack Obama from President Barack Obama

11th Circuit decides to hear habeas case en banc

The issue in Spencer v. United States isn't one of great significance -- it deals with whether a defendant who raised the issue at sentencing and on direct review can raise it on a 2255 when there has an intervening change in law.  But it keeps the streak alive in the 11th Circuit for granting en banc review *only* when the defendant wins.  I cannot remember the last time the 11th Circuit granted review when the government won.  And because two of the judges who participated in the panel decision -- District Judge Brock Hornby and Senior Judge Kravitch -- won't be reviewing the case en banc, the case is almost certainly going to be reversed. 

Here's the panel's holding:

We hold that a defendant who unsuccessfully raised a career offender issue at both sentencing and on direct appeal can use a timely-filed first motion under 28 U.S.C. § 2255 to pursue the same issue when an intervening case from the Supreme Court validates his argument and applies retroactively. Under that intervening case, this defendant’s third degree Florida felony child abuse conviction no longer qualifies as a predicate crime of violence. He therefore is not properly treated as a career offender. We vacate the district court’s denial of his section 2255 motion and remand for resentencing.

Seems rather straight forward.  But I think this case raises two important issues --

1)  If the 11th Circuit is going to allow as many visiting judges as it allows, then if the case is heard en banc, the judges who sat on the panel should be permitted to hear the case en banc.  Here, Judge Kravitz was permitted to sit en banc but decided not to.  But the author of the opinion, Judge Hornby, cannot.

2)  The 11th Circuit should hear more cases en banc where the government is successful, especially because there are so many important decisions being made where there is only one active judge on the panel.

Judge Robin Rosenbaum vote today (UPDATED with vote)

The Senate Judiciary Committee will vote today on Judge Rosenbaum's nomination to the 11th Circuit.  She is expected to have no issues and fly through.  Watch here at 10am. 

UPDATE -- by voice vote, Judge Rosenbaum got unanimous approval.  Now to the full Senate.  Should go quickly.

ABA's White Collar Conference

So the ABA's big White Collar Conference is back at the Eden Roc this Wednesday through Friday.  Over 1000 lawyers come to schmooze, get CLEs, and to go to the parties at night all along Miami Beach. 

One party of note is at the Blues Bar at the National Hotel at 9:30pm where there will be the annual Steve Chaykin toast.  This year, the name will be changed to the Chaykin/Sharpstein toast....

In substantive news, both AG Holder and the Republicans are trying to get serious about sentencing reform.  From the NY Times:

Shortly after Senator Rand Paul filed suit last month against the Obama administration to stop its electronic dragnet of American phone records, he sat down for lunch with Attorney General Eric H. Holder Jr. in his private dining room at the Justice Department.

Mr. Paul, a Kentucky Republican, is one of the Obama administration’s most vocal critics. But their discussion focused on an issue on which they have found common cause: eliminating mandatory minimum sentences for nonviolent drug offenders.

The two men are unlikely allies. Their partnership unites the nation’s first African-American attorney general, who sees his legacy in a renewed focus on civil rights, and some of Congress’s most prominent libertarians, who have accused the Obama administration of trampling on personal freedom with drones, wiretaps, tracking devices and too much government.

While a range of judges, prosecutors and public defenders have for years raised concerns about disparities in punishment, it is this alliance that may make politically possible the most significant liberalization of sentencing laws since President Richard M. Nixon declared war on drugs.

I wanted the name to be Neiman Marcus...

...but my vote doesn't count I guess.

Friends of the blog and excellent lawyers Jeff Marcus, Jeff Neiman, and Dan Rashbaum joined forces to start Marcus, Neiman and Rashbaum.

Law360 covers it here:

Three former federal prosecutors with experience in tax, securities and health care have joined forces to create Marcus Neiman & Rashbaum LLP, a South Florida white collar litigation boutique firm with offices in Miami and Fort Lauderdale, the firm announced Monday.
Jeffrey Marcus, Jeffrey Neiman and Daniel Rashbaum, who met while working several years ago at the U.S. Attorney's Office in the Southern District of Florida, opened the doors of their new firm last week. Collectively, they say they have tried more than 75 cases to verdict.
“For me, personally, being able to partner with two very talented white collar lawyers with the experience we all have was a tremendous opportunity,” Marcus, who most recently headed the white collar group at Kenny Nachwalter PA, told Law360.

Meantime, things must be going well at the new firm as Neiman is eating lots of sushi.  Via the DBR:

When Fort Lauderdale attorney Jeff Neiman had a craving for sushi, he jumped in his car and drove to Sushi Rock Cafe a mile up Las Olas Boulevard.
Now, Neiman can just walk to Sky Thai Sushi, the first and only sushi restaurant within walking distance of Fort Lauderdale's power lunch crowd.
"It fills a void for what we need in walking steps of our downtown—good quality sushi," said Neiman, who just formed a litigation boutique with two other former federal prosecutors, Jeffrey Marcus and Daniel Rashbaum. "Given its location, it's going to be hard for Sky Thai Sushi not to attract attorneys and other professionals."

In other news, the Sun-Sentinel covers the sentencing of psychic Rose Marks:

Convicted psychic swindler Rose Marks was sentenced to just over 10 years in federal prison Monday for defrauding clients of her family's fortune-telling businesses out of more than $17.8 million.
Looking frail and downtrodden, Marks, 62, of Fort Lauderdale, sobbed as she apologized to her victims, her family and everyone she hurt, saying her former clients had been some of her best and closest friends.
"At the time, I didn't realize what I was doing was wrong," she said, begging the judge for mercy. "Now, I realize that I caused a lot of hurt and disappointment."
Handcuffed, dressed in dark blue jail scrubs and with her hair pulled back in a ponytail, Marks began to cry even before the judge got on the bench. At times, she looked like she was having a difficult time breathing.
Marks has been locked up since September when a jury found her guilty of 14 charges after a bizarre monthlong trial.

Finally, the Tampa Bay Times is covering the pressing of Florida Senators for confirmation of judges:

The liberal group Progress Florida has organized letter campaigns to Sens. Marco Rubio and Bill Nelson urging them to help speed along five judicial nominees.
"Any observer of lawmaking in Florida has learned by now that no matter what happens in our Legislature, the final decision when it comes to laws that affect our day-to-day lives is more often than not made by a judge. That’s why our courts matter," said Mark Ferrulo, the group's executive director.

Monday news and notes

1.  The Supreme Court this morning will hear the death penalty case of Freddi Lee Hall:

The US Supreme Court is turning its attention to capital punishment this week, with the justices taking up a case examining whether Florida is engaging in cruel and unusual punishment by seeking to execute a condemned prisoner who may be mentally retarded.
The high court declared in 2002 that the Eighth Amendment barred use of the death penalty for anyone with mental retardation. But the court left it to each state to decide how best to determine which defendants qualify as “mentally retarded” for purposes of the death penalty.
On Monday, lawyers for death row inmate Freddie Lee Hall are set to argue that Florida uses an unacceptable method to decide who is – and who isn’t – mentally retarded. The argument will be presented by former US Solicitor General Seth Waxman.
The case is a potential landmark because it could establish a national standard for executions involving individuals with mental retardation. Or it could reaffirm that states retain discretion to decide for themselves who to execute.
If a majority of justices set a national standard it would open new avenues for lawyers seeking to halt executions in a variety of cases in Florida and other states.

2. Chief Judge Federico Moreno had two big rulings on Friday -- one involving JP Morgan and one involving the homeless.  Here's a little about the homeless ruling:

U.S. Judge Federico Moreno on Friday approved changes that will strip the homeless of some of the life-sustaining rights they were granted through a historic settlement reached in Miami almost two decades ago.
Police will now be able to stop homeless people from building fires in parks to cook, or from building makeshift tents to sleep in. The homeless can still sleep on sidewalks, but not if they block the path of pedestrians.
If homeless people are within a quarter-mile of a public restroom, they can no longer expose themselves to urinate or to clean. And convicted sex offenders who are homeless will no longer receive the same life-sustaining benefits as other homeless people.
Moreno’s approval followed a vote in January by Miami city commissioners to go along with the agreement worked out between the city and the American Civil Liberties Union.

Read more here: http://www.miamiherald.com/2014/02/28/3965387/miamis-homeless-stripped-of-some.html#storylink=cpy

 3.  Justices Ginsburg and Scalia celebrate Verdi:

When Supreme Court Justice Antonin Scalia is waiting patiently for his spoonful of rigatoni and scallops, too, you know you’re in for a real Italian party. But what else would you expect at a dinner in honor of a 200-year-old Italian rock star?
On Thursday, the Washington Chorus’s “The Essential Verdi” gala held at the Italian Embassy was dedicated to il Tricolore. Scalia, along with fellow Supreme Court Justice and opera aficionado Ruth Bader Ginsburg and a hundred other music lovers, celebrated another famous Italian, composer Giuseppe Verdi, described to this novice as “The Bruce Springsteen [who's, you guessed it, Italian] of Italy,” while sipping on Italian wine and dining on Italian food. The five-course meal was peppered heavily with performances as part of the chorus’s annual “essential week,” this year dedicated to Verdi, which culminated in a performance at the Kennedy Center on Sunday.
The national pride then was hardly a surprise, although the night held many. The first came as the crowd settled into their seats. As the few non-Italians at Table 32 took a first bite of gnocchi, without warning the chorus members embedded throughout the grand atrium shot up from their seats and commenced to harmonizing. “This is their version of a flash mob,” one guest joked.

4.  The dangers of Facebook can be seen in this state case.  I feel bad for the dad and daughter here:

 Call it the biggest Facebook mistake ever. A daughter’s snarky status update has cost her father the $80,000 settlement he won in an age-discrimination lawsuit.

According to the Miami Herald, Patrick Snay, 69, was the headmaster at Gulliver Preparatory School in Miami for several years, but in 2010, the school didn’t renew his contract. Snay sued his former employer for age discrimination and won a settlement of $80,000 in November 2011. The agreement contained a standard confidentiality clause, prohibiting Snay or the school from talking about the case.

However, Snay’s daughter, Dana, now at Boston College and a part-time Starbucks barista, couldn’t resist bragging about the case on Facebook. “Mama and Papa Snay won the case against Gulliver,” she wrote. “Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.”

5.  John Pacenti covers the Kaley decision here.  The Justices got this one wrong, but Chief Justice's Roberts' dissent is strong:

Federal prosecutors, when they [*22] rise in court, represent the people of the United States. But so do defense lawyers — one at a time. In my view, the Court's opinion pays insufficient respect to the importance of an independent bar as a check on prosecutorial abuse and government overreaching. Granting the Government the power to take away a defendant's chosen advocate strikes at the heart of that significant role. I would not do it, and so respectfully dissent.