11th Circuit to live stream oral arguments

 The 11th Circuit is now going to audio stream all oral arguments.  The announcement is here:

The Court is pleased to announce oral arguments held in open court in all court locations will be live streamed – audio only – beginning October 25, 2022. The live stream may be accessed through the Court’s website (www.ca11.uscourts.gov). Audio recordings of oral arguments held in open court will continue to be posted on the Court’s website. Oral arguments in national security cases and other cases not heard publicly will not be live streamed and recordings of those arguments will not be posted on the Court’s website.

MDLs in the SDFLA

 

By John R. Byrne 

More and more multidistrict litigations (MDLs) are coming to our district. They’re often complicated and a lot of work goes into them, so, when the Joint Panel on Multi-District Litigation (JPML) assigns one to a judge, it’s considered an honor. The JPML is composed of federal judges from each Circuit selected by Chief Justice Roberts. They hold quarterly argument on whether to create a new MDL and, if so, where to send it. It's often a very big deal in the world of federal civil litigation. 

Some districts and judges are frequently assigned MDLs and come to be regarded as "MDL Districts" and "MDL Judges." As an example, Judge M. Casey Rodgers in the Northern District of Florida is on her second major mass tort MDL (this one about 3M earplugs) and is considered by many to be an "MDL Judge." (In 3M several of our SDFLA judges have travelled to Pensacola and presided over bellwether trials.)

The SDFLA has 7 pending (open) MDLs now (listing them below, oldest to newest, with a short summary on what they’re about; some are fairly old and probably not all that active). In terms of sheer numbers, we’re about in the middle of the pack, nationally. We should move up in the next few years. It would also be great to get one of our judges on the JPML (we’ve never had one serve on the JPML).

I'm going to try and blog more about the interesting aspects of MDLs, particularly as they relate to the SDFL and 11th Circuit.

Judge	Case Name	Case No.	Summary
Kenneth A. Marra	In re: Chiquita Brands International, Inc.	MDL-1916	Victims contend that Chiquita funneled approximately 1.7 million dollars to the Autodefensas Unidas de Colombia, a Colombian terrorist organization, during the Colombian civil war.
James Lawrence King	In re: Checking Account Overdraft Litigation	MDL-2036	Customers challenging the overdraft fees charged by the federally chartered banks on the ground that the charges were exorbitant
Federico Moreno	In re: Takata Airbag Products Liability Litigation	MDL-2599	Takata made airbags for various car makers. Plaintiffs alleged they exploded, killing or injuring people.
K. Michael Moore	Liquid Toppings Dispensing System (Patent Litigation)	MDL-2832	Kona Ice--that company that sells shaved ice from trucks with a penguin on it--alleged the competitors stole their topping dispensing system.
Darrin P. Gayles	In re: MONAT Hair Care Products Marketing, Sales Practices and Products Liability Litigation	MDL-2841	Claim is that products that were supposed to promote healthy hair growth did the opposite, causing hair loss and scalp irritation.
Robin L. Rosenberg	In re: Zantac (Ranitidine) Products Liability Litigation	MDL-2924	Claim is that ranitidine—an ingredient in Zantac and other heartburn drugs—causes cancer and that drug manufacturers knew it.
Cecilia M. Altonaga	In re: January 2021 Short Squeeze Trading Litigation	MDL-2989	Litigation over Robin Hood Securities’ handling of “meme stocks”—stocks whose price is being mostly driven by social media postings.
Rodolfo A. Ruiz	In re: Mednax Services, Inc., Customer Data Security Breach Litigation	MDL -2994	Mednax (now called Pediatrix) is a company in the health care space. In June 2020, its e-mail system was breached, potentially compromising the personally identifiable and health-related information of nearly two million individuals. Lawsuits ensued.
Raag Singhal	In re: Johnson & Johnson Sunscreen Marketing, Sales Practices and Products Liability Litigation	MDL-3015	Claim is that sunscreen manufactured by J&J defendants contained excessive amounts of benzene, a carcinogen linked to leukemia and other cancers.

 

S.D. Fla. Ties to Trump Investigation

 By John R. Byrne

A lot of South Florida connections to the ongoing DOJ investigation into Trump’s handling of classified documents. Last Thursday, one of our district’s alums, Kash Patel, reportedly appeared before the grand jury. Patel was an AFPD down here before rising to high level positions within the Trump administration (the last being Chief of Staff to the Secretary of Defense).

According to reports about the investigation, no charging decision will be made before the November elections.

Parkland and the Future of the Death Penalty

 

By John R. Byrne

Fallout continues from the death penalty phase of the Parkland shooter. The Sun Sentinel covers recent court rulings on Florida’s death penalty here. Before 2016, Florida law allowed just a majority of jurors to recommend the death penalty to a judge. In Hurst v. Fla., 577 U.S. 92 (2016), the Supreme Court overturned that law in an 8-1 decision. Although Florida law now requires a unanimous jury vote recommending death, there is talk of changing the law (Alabama allows a 10-2 vote, for example). 

Should judges be elected or appointed?

We've had this debate on the blog for many years, and there is no good solution.

We all just wanted judges who are hard-working, nice, fair and will grant a continuance! 

Well, there are 5 judges on the Florida Supreme Court who are up for "retention," which means they can be voted out.  But that never happens. Here's an article from the Tampa Bay Times that discusses what's up:

Five of the seven sitting justices on the Florida Supreme Court are on the November ballot for a retention vote.

Florida’s Supreme Court justices are appointed by the governor. But voters decide whether the justices should be retained; such votes are conducted in the first general election that occurs more than a year after a justice’s appointment, and again every six years.

The state’s highest court has the final say in some of the major issues facing Floridians. That includes final orders imposing the death penalty, district court decisions declaring a provision of the state Constitution or a statute invalid, certain orders from the Public Service Commission on utility rates or services, and issues that it decides are of great public importance, such as whether the privacy clause in the state’s Constitution includes abortion

.

The five that are up are Justices Canady, Couriel, Grosshans, Labarga, and Polston.

BOP is really bad

 Imagine if a criminal defendant or his lawyer refused to follow court orders or the law.  They'd be put in jail before you could say not guilty.

But BOP does its own thing and really doesn't care much for the judiciary or the legislature.  In fact, it still refuses to follow the First Step Act

From Walter Pavlo in Forbes:

The Federal Bureau of Prisons (BOP) is under new leadership but it is still suffering from decades of mismanagement. BOP Director Colette Peters began work on August 2nd of this year taking over for the Michael Carvajal. The U.S. Senate’s Permanent Subcommittee on Investigations held a hearing on July 26 chaired by Senator Jon Ossoff (D-GA) who grilled outgoing BOP Director Carvajal about the failings throughout the agency. While the hearing was focused on the corruption and abuses at USP Atlanta, it was a condemnation of an agency in crisis.

Director Peters testified on September 29, 2022 in from the Senate Judiciary Committee. Unlike Carvajal’s previous, contentious testimonies before the same committee during his tenure, Peters’ was marked by cordiality and encouragement to implement the First Step Act legislation, uncover corruption among staff and provide transparency to an agency that U.S. Senator Ron Johnson had previously described as one where “People have not been held accountable.”

The First Step Act (FSA) was signed into law in December 2018. It is considered one of the most influential pieces of legislation directed at the BOP to not only encourage prisoners to participate in meaningful programs meant to rehabilitate, but to reduce the number of people in prison who pose little or no danger to society. Senator Dick Durbin was frustrated in Peters’ testimony stating that the full effects of FSA had not been implemented nearly 4 years after it being signed into law. Peters assured the Senators that an auto-calculator was completed in August 2022 that provided FSA credits to prisoners which had the effect of reducing many sentences. However, that auto-calculator was not in place at the time of the hearing, or at least it was not communicated to prisoners or the public.

According to dozens of prisoners I interviewed for this piece, calculations were not communicated to them nor reflected on BOP.gov, which tracks release dates for federal prisoners. Anticipating this computer program’s rollout that would reduce many prisoner release dates, prisoners and their families eagerly awaited the news of when they would be going home. As the weeks passed after after August, prisoners still had no news. It was not until the week of October 3rd that FSA credits started to be applied. As one prisoner told me, “I was expecting a year of credits and I got 4 months. I have no idea what happened.”

What happened is that the calculator still has errors in it. Prisoners who were transferred to a halfway house after receiving an interim calculation of their sentence, were called in and told they would be returning to prison after the new calculation took away their year. Colitha Bush, had only been in a halfway house for a few weeks when the director of her Houston facility called her and said, “I hope you’re sitting down,” Bush told me in an interview that the director told her that it had received a new sentence calculation from the BOP and she was now not due to be released until April 2024. Colitha said, “I couldn’t believe that they were going to send me back to prison after I took all those classes and did what the First Step Act required.” The following day, Colitha went into the halfway house and was informed that the BOP had corrected her date, and she could stay home. “I was relieved but the last 24 hours was pure hell thinking that I was going back,” Bush said. Bush was not the only person to receive a revised date, some of the prisoners whose sentences were commuted by President Joe Biden had their dates recalculated to state a date in the future. One of those whose sentenced was commuted but had her date recalculated said that she was concerned enough to make a few calls to make sure it was not true. Her date was corrected also.

 

New Hurricane Policy for SDFLA (SECOND UPDATE)

 The physical courthouses will close when public schools are closed, so that remains the same.  But Chief Judge Altonaga has tweaked the policy so that court employees are now expected to tele-work even if the courthouse is closed, unless they are without power or wifi.  

Here's the order.

On the other hand, the Chief did declare December 23 as a court holiday. 

**UPDATED -- one helpful tipster points out that many court staff wanted the change to the hurricane policy so that they would get paid when there was a storm since they were working from home even if they weren't coming into the courthouse. 

***SECOND UPDATE -- Well, this is interesting.  I have received a number of responses to the above update and have been told that court employees ARE paid even when the storm closes the courthouse (since they are employees and get a salary).  So, the responses say, this "excuse" is not accurate and not what the employees requested.

Judge Ho and friends cancel Yale for law clerks

Judge James Ho (CA5) and another 11 judges -- including Judge Branch from the 11th Circuit -- have said they won't hire law clerks from Yale because they feel Yale has a cancel culture.  

Yale news covers the story here:

“I don’t want to cancel Yale,” Ho told Reuters. “I want Yale to stop cancelling people like me.”

According to employment lists obtained by the News for the Yale Law classes of 2019, 2021 and 2022, no Yale Law graduates from any of these classes reported first clerkships with Ho or Branch. The most recent Yale Law graduate hired by Ho graduated in 2017. 

Aggrey Odera LAW ’23 pointed out that the boycott was ironic, since those who participate in and embrace alleged “cancel culture” would not likely want to work for a judge such as Ho. This boycott would only shut out the voices of conservative Yale Law students, Odera told the News.

“I find it funny — and counterintuitive if his ends actually are conservative — that a conservative judge would deny clerkship opportunities to conservative Yale Law students … as a means of punishing the school,” Odera wrote in an email to the News.

In his speech, Ho referenced previous events that have taken place within the Law School, one of which followed the backlash surrounding a controversial email — seen as racially insensitive to many — inviting students to an event co-hosted by the Federalist Society. 

Dean of Yale Law School Heather Gerken responded to that incident with an email defending free speech while emphasizing a desire to create an inclusive environment for students.

“The vigorous exchange of ideas is the lifeblood of this Law School,” Gerken wrote in an email to students following the incident. “Protecting free speech is a core value of any academic institution; so too is cultivating an environment of respect and inclusion. These two values are mutually reinforcing and sit at the heart of an intellectual community like ours.”

Branch — also a Trump appointee — is the first federal judge to publicly join Ho’s boycott, raising concern “about the lack of free speech on law school campuses, Yale in particular.”

In other cancel culture news, I was informed by a number of sources that the AO had banned this blog so that the judiciary could not access it. After a few quick calls, this was all sorted out.  Our judges can again take a peak at breaking district news when they get bored on the bench.  All good!