Reprehensible Conduct

By John R. Byrne

Curious about what level of racial discrimination will give rise to a punitive damages award? Look no further than the Eleventh Circuit's recent decision in Faulk v. Dimerco Express USA Corp. The jury awarded Faulk $390,000 in compensatory damages and a whopping $3,000,000 in punitive damages for Dimerco withdrawing his job offer when Dimerco's president, Herbert Liou, discovered Faulk was black. But there was more to it than just the withdrawal of the offer.

• When Liou was interviewing for the president position with the company's founder, one of his proposals was “[h]iring Caucasian Sales & Marketing Manager/VP in LAX/NYC respectively";
• At trial, Liou testified that Dimerco needed “Caucasian” managers to “attract the Caucasian market";
• At trial, another Dimerco employee testified that Liou told her that "his preference was “Caucasian, young, white men” because “they were . . . work horses";
• Later, that same Dimerco employee emailed Liou, noting that “it’s discriminating to search for [a] candidate based on race." Liou's proposed response, which he actually sent to the company's director of compliance for review, was that Dimerco "is focusing on [the] Caucasian Market." The director's response to Liou (which proved somewhat prescient): "[i]f [you] put[] in writing that you want a specific race . . . , [b]oth you and the company are guilty of discrimination and if we ever get a legal complaint, these emails will result in a guilty verdict and large damage award.” 

Writing for the Court, Judge Pryor described Dimerco's conduct as "reprehensible" and affirmed the punitive damages award, reasoning that it wasn't constitutionally excessive.

The opinion is also worth a read for how the district judge (and later the Eleventh) handled inappropriate arguments made by Faulk's attorney during opening and closing. The district judge, Judge Michael Lawrence Brown out of Northern District of Georgia, reprimanded the attorney in real time but didn't issue a requested curative instruction or grant a new trial. The Eleventh Circuit held the trial judge acted within his discretion. That seems right. I feel like curative instructions can sometimes make matters worse in the "don't think of a pink elephant" sense. Opinion here. 

Yeney Hernandez sworn in, Guest Post by Lindsey Lazopoulos Friedman

Yeney Hernandez sworn in, Guest Post by Lindsey Lazopoulos Friedman

photo by Jon Kobrinski
 

Congratulations to Yeney Hernandez on being sworn in as the Southern District’s newest United States Magistrate! Chief Judge Altonaga swore Judge Hernandez in this morning, where Judge Hernandez wore a robe that,  as Judge Lauren Louis explained, has been passed down from Judge Seitz to each newly invested female Judge in the Southern District as a symbol of their embrace and support. 

 

Ed Stamm, Assistant U.S. Attorney and Acting Chief of Public Corruption, talked about Judge Hernandez’s many contributions to the U.S. Attorney’s Office, and how she did so with humility and integrity, the gold standard of public service. Judge Hernandez’s husband AUSA Jason Wu, spoke how about hard she works behind the scenes, how committed she is to justice, and how she always strove to show fairness to victims and defendants alike. 

 

I also spoke, and like the other speakers, couldn't help but notice how much Judge Hernandez embodies the American Dream. Judge Hernandez and her family escaped communist Cuba and spent months - including her 7th birthday - at Guantanamo Bay, making their way to the United States. Her father, formerly a doctor in Cuba, become a truck driver in Miami and her mom worked two jobs to make ends meet. Judge Hernandez fondly remembered her mother leaving chocolates (Ferrero Rocher) after coming home from her Saturday night shift for Judge Hernandez to find when she woke up. Judge Hernandez would go on to attend Duke (as a double major), followed by Yale Law School (where she served as an editor on two journals), followed by a clerkship on the Sixth Circuit and several years at a prestigious law firm before spending over ten years at the U.S. Attorney’s Office. 

 

Judge Hernandez also spoke, paying homage to her parents and recognizing and thanking them for their dedication and sacrifices. She also affirmed her commitment to the Constitution and Oath of Office, and thanked the community for their contribution to her own great achievement. She looks forward to hitting the ground running, and Judge Altonaga looks forward to it too! 

Friday News & Notes

 By John R. Byrne

A few items of interest. 

1. Two big trials--the David Rivera trial (before Judge Damian) and trial of the men accused of assassinating Haitian president Jovenel Moïse (before Judge Becerra) will continue into next week. An opportunity to witness high-quality lawyering in high-profile cases.

2. How about the Harris County, Texas judge going viral for how he treated a court IT worker? Kudos to the IT worker for keeping his cool. And it doesn't appear that the judge just had a single bad moment. The article also shows a clip of him threatening to handcuff a lawyer for making an argument. Next time you have a bad day in court, remember that things could always be worse. You could be in Harris County!

3. The Jewish American Heritage Month event will be held at the Wilkie D. on May 5. Judge Leibowitz is moderating a discussion with Alyza Lewin (President of U.S. Affairs for Combat Antisemitism Movement) and Dr. Keren Yarhi-Milo (Dean of Columbia University School of International & Public Affairs).

Details on RSVP'ing below.

4. Happy Easter and Happy Passover to those who celebrate. 

United States v. Florida

By Jordi C. Martínez-Cid

Yesterday the Eleventh Circuit issued an opinion, authored by Judge Jordan, generally upholding Judge Middlebrooks' trial rulings and broad permanent injunction in favor of the Federal Government. Judge Middlebrooks essentially found that Florida’s Medicaid Agency violates Title II of the American with Disabilities Act ("ADA") by unnecessarily institutionalizing children with medical needs and placing others at a serious risk of institutionalization. Judge Brasher dissented, arguing that the serious risk identified by the trial court does not constitue a concrete violation of the ADA. Interestingly, Judge Brasher concludes that "It seems likely to me that, somewhere in Florida, there is a child with serious medical needs who has a strong Olmstead claim" but that the majority's opinion does not vindicate that child's rights and does not necessarily prevent the harm in the future. The opinion and dissent can be found here.

Breaking -- Judge Jeffrey Kuntz nominated to SDFLA.

From DJT's Truth Social post:

It is my Great Honor to nominate Jeffrey Kuntz to serve as Judge on the United States District Court for the Southern District of Florida. As the Highly Respected Chief Judge of Florida’s Fourth District Court of Appeal, Jeffrey has been TOUGH and SMART, and delivered strong results for the Sunshine State. A proud graduate of Boston College, who earned his J.D. at Suffolk University Law School, Jeffrey has demonstrated his commitment to the Rule of Law throughout his career. He will always defend our Great Constitution, and put our Country, FIRST. Congratulations Jeffrey!

Making History

By John R. Byrne

Yesterday, the Court hosted its first ever Women's History Month event, and it didn't disappoint. Judge Williams moderated a discussion with the panelists. A recurring theme was that the panelists grew up in families with strong women who encouraged them to pursue their dreams. 

A nice moment was when the panelists were asked about female lawyers or judges who had inspired them. Judge Becerra said that, though she had aspired to be a judge when she was a young lawyer, it took her seeing someone with a background like hers reach the bench to believe her dream was attainable. That judge? Her fellow panelist, Chief Judge Altonaga.

Of all the panelists, former judge Rosemary Barkett seemed to have the most fun (and delivered some great laugh lines).

Pictured from left to right: Rosemary Barkett, Magistrate Judge Detra Shaw-Wilder, Chief Judge Altonaga, Tiffani Lee of Holland & Knight, Judge Kathleen Williams, Judge Robin Rosenbaum, and Judge Jaqueline Becerra.

Looking to Hire a Federal Law Clerk?

By John R. Byrne

As more and more national law firms open up shops in Miami, the market for hiring federal law clerks is more competitive than ever. If only there was a convenient place where said law clerks might congregate one evening to be pitched by prospective employers. Wait--there is! Each year, the Federal Bar Association puts on a Law Clerk Reception. This year, it's being held on April 16, 2026 at the Gunster law firm in Fort Lauderdale between 6 and 8 p.m. More details here.

Tom Goldstein moves for JOA

The federal criminal justice system is so messed up -- there are no motions for summary judgment.  There are no depos.  So if you want to get rulings about the validity of a case, you pretty much have to go to trial and risk a sentence 5x as long as if you plead.  It's so wrong in so many ways.  

This leads us to SCOTUSblogger's Tom Goldstein's motion for judgment of acquittal.  Bloomberg covers it here:

Tom Goldstein, the US Supreme Court advocate and ultra high-stakes poker player convicted of tax and loan-related offenses in late February, is asking the judge who presided over the six-week trial to toss the jury’s verdict.

Goldstein’s motion for acquittal or, in the alternative, a new trial challenges, among other things, the court’s jury instructions on accessory liability and willful blindness. It was filed Monday in the US District Court for the District of Maryland.

The error in the instructions on accessory liability alone requires a retrial on every every count, Goldstein claims. General “charging instructions” failed to advise the jury that aiding and abetting liability required finding another guilty principal; willful conduct by Goldstein; and an affirmative act, not merely an omission, the motion says.

The instructions also failed to advise the jury that finding him guilty for causing “an act that would be an offense if directly performed by him or another” required it to find that Goldstein intended that the substantive offenses be committed.

Further, Judge Lydia Kay Griggsby granted the government’s request to eliminate the accessory instructions detailing aiding and abetting requirements after the parties delivered their closing arguments. It’s a violation of a procedural rule that Goldstein says was “undoubtedly prejudicial” in this case.

Doing so “changed accessory liability from essentially a non-issue in the case to a serious basis on which to convict,” the motion argues. If defense counsel had known the jury would be permitted to find accessory liability without finding that some other principal committed every element of the substantive offense, they would have taken the issue on at closing, the motion said.