Set a course for the Eleventh Circuit!

Judge Seitz entered a $16.7 million judgment predicated on fraud in the inducement and negligent misrepresentation for Carnival Cruise Lines, represented by Greenberg Traurig and Fowler Rodriguez, against Rolls-Royce PLC. The suit is over a new high-tech steering and propulsion system appurtenant to the Queen Mary II. The jury had also awarded $8 million for breach of an implied warranty of workmanlike performance, but Judge Seitz granted the motion by Rolls-Royce, represented by Black Srebnick et al., for judgment on that claim. The jury rejected Carnival’s claims for breach of both ordinary and specific warranties and for unfair trade practices.

Newspaper articles almost never give either the complete story or a case number, but I found it after abusing D.O.M.’s PACER account just a little bit. The verdict form is 10 pages long and reads a lot like an IRS 1040. As far as I can tell from that document and Judge Seitz’s order, the jury thought Rolls-Royce materially lied about the new technology. I know, I know. How is that not barred by the economic loss rule? According to the order, “Rolls-Royce ignores the fact that the parties did not actually have a contract.” Rather, Carnival bought the ship from a shipbuilder who bought the system from Rolls-Royce. I may be entirely out-of-date on this since it’s been a very long time since I did this kind of thing, but I think there’s a good argument that the economic loss rule applies regardless of whether a contract action lies against any particular defendant. That will be the Eleventh’s problem, I guess. Issues like this almost make me miss commercial litigation. Reviewing the 424-entries-long docket doesn’t.

Quit shooting your mouth off

Judge Marcia Cooke drew the lawsuit sponsored by the Brady Center challenging a Florida law that purports to circumscribe physicians’ conversations about guns. The law is part of a national push by the NRA for such laws in a bunch of states. We are, of course, the first to have one. Even West Virginia voted against it. (They’re trying again.) From the complaint, filed by D.C.’s Ropes & Gray and Miami’s Astigarraga Davis with the Brady Center:

Specifically, the Physician Gag Law expressly restricts health care practitioners, in certain vaguely-defined circumstances, from asking patients questions related to gun safety or recording information from those conversations in patients’ medical records, on penalty of harsh disciplinary sanctions, including fines and permanent revocation of their licenses to practice medicine.

Dr. Michael Hirsh, head surgeon at UMass Memorial Children’s Medical Center, sponsored a resolution by the Massachusetts Medical Society opposing such legislation up there. He seems to think “Florida” is short for floridly insane:

On the Florida law, he said, “I just don’t want to see this wave of stupidity come anywhere where sane people might understand this is going to affect kids.”

Welcome back. Your dreams were your ticket out.

A pot smuggler who skipped the country in 1979 got five years. This is big news today, I guess because 31 years is a long time to be gone, only to find yourself back in front of Judge King. New courtroom, though. New building, too. Named for him, you know.

Episode Two, sponsored by Black’s Law

Roy Black has published a genuinely stirring account of the leader and inspiration that was and is Judge Phillip Hubbart. The essay is poignant and thought-provoking, aspiring to mirror the dedication to excellence personified by its subject. Highly recommended reading, in short.

As a public service, I will encapsulate a significantly more prolix work evincing perhaps not the same commitment to quality as Mr. Black’s. Let’s look just at the majority’s opening line in the en banc Gilbert decision:

Ezell Gilbert, a federal prisoner, wants to have an error of law in the calculation of his sentence corrected based upon a Supreme Court decision interpreting the sentencing guidelines, even though that decision was issued eleven years after he was sentenced.

Truly pregnant: There was an error. At sentencing. No one doubts that. Hell, the Supreme Court said so. But this guy, this “federal prisoner”, wants to have it fixed now.He wants us to correct a sentence eleven years later. Well, where’s it going to stop? How many more of he are there?

All that follows is structured in the predictable way: “He” is a hapless, unrepetent, common criminal. The opinion preempts sympathy by pointing out that, even if he has a point, his sentence might well be the same—then graciously allows that it might be less. Ultimately, it erects “finality of judgment” as the bulwark shielding civilized and free society from such incorrigibles, even taking liberties with Justice Powell, having already violated Justice Holmes.

The short answer to all of it: It is just the sentence, not the judgment, being challenged. Finality is not implicated. Once that dawns, lines like this seem ludicrous: “A federal prisoner’s right to have errors in the calculation of his sentence corrected is not without limits.” No? Well, why not? You can’t just apply the new Supreme Court case and reset the sentence? What’s the big deal? It’s not like anyone’s asking for a trial or anything.

What must have driven Judge Hill to write the scathing dissent D.O.M. quoted at some length the other day is this reduction—this cheapening—of the judicial function from guardian of fairness to administrator of burdens. To claim that there is a higher value than ensuring that Americans are not capriciously incarcerated and that value is finality “of judgment” when really you mean “of penalty” is to abandon excellence as an aspiration. (And they know it; by violently distorting Holmes in ¶ 1, the majority seeks to cloak its abdication with excellence-by-association.) The fright for the future and lack of faith in our institutions that this abandonment symptomizes is so commonplace now that it escapes our notice—until we contrapose it with an image like Roy Black has painted with his essay.

Yesterday at the courthouse

The SEC got a split verdict yesterday in a civil case tried to a jury before Magistrate Judge McAliley. The amended complaint alleged that four people bought Neff Rental stock after receiving inside information that the company was to be acquired.

In December, two of the original defendants entered into settlements, signed by Judge Jordan, that included permanent injunctions against future violations of law. The SEC loves its permanent injunctions because they effectively reduce the burden of proof down to probable cause. But here’s a little nugget of law for defense attorneys and district judges (and future district judges): injunctions against violations of law are neither routine nor automatic. See S.E.C. v. Globus Group, 117 F.Supp.2d 1345 (S.D.Fla. 2000) (Jordan, J.).

The defendant found not liable yesterday was Dr. Sebastian de la Maza, 71-year-old father-in-law to then-Neff CEO and Miami Law graduate Juan Carlos Mas. The theory of defense de la Maza’s attorneys, James Sallah and Jeff Cox, put forth was that de la Maza had followed the stock for years.