Friday, August 03, 2012

BREAKING -- Judge Cooke issues order in the TD Bank case

Here's the Order:

Order

The conclusion:

Upon review of all of the evidence I conclude that Rule 37 sanctions against Greenberg
Traurig and TD Bank are warranted. Having determined that TD Bank’s discovery violations were willful and resulted in prejudice to Coquina, I must determine what is the appropriate sanction in this case. Coquina urges that I strike TD Bank’s pleadings or its notice of appeal.
Discovery sanctions must be “just” and “specifically related” to the discovery violations.
See Ins. Corp. of Ireland, Ltd. v. Compagnie de Bauxites de Guinee, 456 U.S. 694, 707 (1982); Sierra Chevrolet, 446 F.3d at 1152. The discovery violations in this case resulted in Coquina’s diminished ability to prove that TD Bank’s actions were unreasonable and it had knowledge of fraud. Although the jury found in Coquina’s favor, Coquina now faces post-trial motions, which challenge the sufficiency of the evidence it put forth at trial on these issues. I will therefore direct that the facts that TD Bank’s monitoring and alert systems were unreasonable and that TD Bank had actual knowledge of Rothstein’s fraud be taken as established for purposes of this action. See Fed. R. Civ. P. 37(b)(2)(A)(i). This sanction will prevent further prejudice to Coquina in an eventual appeal on that issue. Greenberg Traurig and TD Bank shall also pay Coquina’s reasonable attorney’s fees and costs associated with bringing and litigating the Fourth and Fifth Motions for Sanctions and its Notice of Supplemental Evidence, and its reasonable attorney’s fees and costs associated with litigation resulting from TD Bank’s Notice of Withdrawal. This sanction serves to compensate Coquina for the added expense caused by Greenberg Traurig’s and TD Bank’s discovery violations and abusive conduct. See Carlucci, 775 F.2d at 1453. Coquina’s counsel shall file a motion for fees and costs within twenty days of this Order.

Judge Cooke, however, did not sanction the individual lawyers.

John Pacenti has the details:
U.S. District Judge Marcia Cooke in Miami found Cherry Hill, New Jersey-based TD Bank manipulated its attorneys and concluded Greenberg was negligent in its handling of the case brought by Corpus Christi, Texas-based Coquina Investments LLC. But she issued no sanctions against any individual attorneys at the Miami-based law firm. Over 200 Greenberg Traurig attorneys were involved in the case, the judge noted.
The investors won a $67 million judgment against the bank in January despite missing key documents, the judge concluded. Discovery violations weren't uncovered until later.
"I will note at the outset that it is difficult to accept that it was a mere coincidence that the late productions on the eve or during trial contained highly relevant documents," Cooke wrote in her 30-page order.
She painted the litigation as nearly farcical, invoking the classic Pink Panther comedy movies about a clumsy and inept detective.
"However, unlike the Pink Panther film, there was nothing amusing about this conduct and it did not conclude neatly," Cooke wrote.
She faulted the bank's in-house counsel for keeping Greenberg attorneys in the dark but also determined the legal term's discovery work was negligent, the legal standard for professional malpractice.
"TD Bank hides behind Greenberg Traurig's mistakes," Cooke wrote. "No one outside attorney was aware of the existence of all the discoverable or relevant materials. TD Bank's general counsel's office, on the other hand, had all the information."
The judge ordered the bank and law firm to pay Coquina's fees and costs for bringing two of five sanctions motion and issued two strong findings to ride with the bank's appeal — "TD Bank's monitoring and alert system were unreasonable and that TD Bank had actual knowledge of Rothstein's fraud."
Coquina had asked that all of TD Bank's pleadings be stricken. Cooke did not go that far but said her actions "will prevent further prejudice to Coquina in an eventual appeal on that issue."

Friday News & Notes

Quiet week in the District. Everyone seems to be away before school starts in a few weeks...

I posted earlier in the week about the Apple/Samsung opening statements. Looks like there was a lot more drama in that case. ATL has all the scoop about the Judge and John Quinn getting into it here. The latest update has Apple asking for sanctions.  And people think criminal law is contentious. 

John Pacenti covers the old Dyer building in an interesting article:

Mobster Meyer Lansky faced trial in the ceremonial courtroom. Deposed Panamanian dictator Manuel Noriega was tried and convicted there on drug charges. Crooked judges and police also faced juries in the historic David W. Dyer Courthouse, a downtown Miami landmark distinguished by its coquina stone facade.
But the courthouse was shut down in 2008 after the lung disease death of a federal magistrate and employees complained they worked in an environment fouled by toxic mold.
Now, the General Services Administration, the building's landlord, is asking developers for ideas about what to do with the one-time post office building. In a request made public Thursday, the agency said the options include an exchange, an exchange for services, a lease or sale.
On Monday, the House Subcommittee on Economic Development, Public Buildings and Emergency Management will meet at the courthouse on a hearing titled "Sitting on Our Assets: The Vacant Federal Courthouse."
 That's about it for now. Enjoy the weekend.


Wednesday, August 01, 2012

Khannnnnnnnnnnn!!!!!!!!!!!!



That's what Judge Scola must be feeling about the "Pakistani Taliban case."  Curt Anderson covers the recent issues here:
A once high-profile federal prosecution of an elderly Muslim cleric and one of his sons on terrorism finance charges has become bogged down in questions over the imam's mental stability and a legal fight over the testimony of defense witnesses who refuse to leave Pakistan, according to court records and interviews.
U.S. District Judge Robert Scola said in a recent order there is "bona fide doubt" regarding 77-year-old Hafiz Khan's mental fitness to stand trial. Prosecutors say Khan, imam at a downtown Miami mosque, was the ringleader of a group in the U.S. and Pakistan that funneled tens of thousands of dollars to the Pakistani Taliban terror group.
Details about Khan's mental issues were not provided in court documents, but he has appeared frail in court appearances and also suffered several physical health problems while in custody. If he is ultimately ruled incompetent for trial, under federal law Khan would undergo at least four months of treatment before a determination could be made on whether his competency might ever be restored.
Assistant U.S. Attorney John Shipley said in a court document filed Wednesday the government does not oppose a psychological evaluation of Khan, but he added that any evidence of mental problems so far is "unsupported and bare-bones, providing no detail at all." The test for competency in federal court is whether a person can effectively consult with his or her lawyer and can understand the legal proceedings involved.
The mental instability issue cropped up after prosecutors abruptly announced in June the dismissal of all charges against Irfan Khan, the elder of Hafiz Khan's sons. The younger son, Izhar, who is also a South Florida imam, remains jailed along with his father on charges of providing material support to terrorists that carry potential maximum prison sentences of 15 years for each count. Both have pleaded not guilty.


Patent trial of the century...

...between Apple and Samsung.  Opening statements were yesterday.  Some highlights (via InformationWeek):

Apple asserted in its opening statement of its infringement case against Samsung that the Korean firm analyzed and systematically copied one feature after another of its iPhone and iPad devices, then brought look-alike products to market. Apple designer Christopher Stringer, the trial's first witness, was asked by lead Apple attorney what he thought as he witnessed competitors bringing phones similar to the iPhone's design to market. "We'd been ripped off. It was plain to see, particularly by Samsung. We were offended," he said.
It was the punchline that Apple had been building toward on a day of opening statements, following Monday's jury selection of seven men and three women in U.S. District Court in San Jose on the opening day of the trial. The courtroom with limited seating was packed with attorneys, journalists, and observers, as was an overflow courtroom where sound and video were piped in. 


Looks like Apple got the better of opening statements.  You never want to start with the "keep an open mind" mantra.  And you better have your exhibits ready in opening:



Samsung lead attorney Charles Verhoeven was soon able to issue a rejoinder to the charges in his own 90-minute opening statement. But before he could launch into it, he felt constrained to remind the jury that they needed "to keep an open mind," that there was "more to the story than what you've just heard." Unlike Verhoeven's presentations, which frequently stopped and started again as he searched for the proper exhibit, Apple's narrative flowed from start to finish with a rising indignation. It moved toward what seemed an inevitable conclusion. Verhoeven seemed to understand its potential impact on a lay jury.
Apple's lead attorney, Harold McElhinny, started out, for example, by showing a simple graphic of six Samsung phones in a wide variety of form factors prior to the launch of the iPhone at Macworld in January 2007. Next to it, he showed Samsung phones being produced by 2010. They all have the rectangular proportions and rounded corners of the iPhone form factor.
McElhinny produced what he called a Samsung design document that compared iPhones, feature by feature, with Samsung's Galaxy model and noted whenever the iPhone's features were different. And the apparent design response in each instance was to "make something like the iPhone."
"To be blunt, Samsung has not been honest about this copying," he said.
Toward the end of his 90 minutes, McElhinny poured special effort into depicting Samsung as, not only an unscrupulous competitor, but so unethical that it failed to live up to its obligation to disclose pending patents to other members of an international standards body, the European Telecommunications Standards Institute (ETSI), as it was required to do.
 McElhinny seemed to be talking the jury's language.  Not so much for the other guy:

Samsung's Verhoeven, when his turn came, disputed the last assertion first. Samsung has made important contributions to wireless standards and under ETSI rules, confidential, proprietary information did not have to be disclosed during its application for a Korean patent. "Any suggestion otherwise is without merit," he said.


That's how lawyers talk.  Not jurors.  I wonder what the jury will think of this:
Verhoeven didn't deny that Samsung studied and duplicated some features of the iPhone. "Being inspired by a good product is not copying. It's competition, people competing with each other. There's nothing wrong with that," he said.
 If I'm Samsung, I'm hammering this point:
Samsung is a key supplier to Apple. Twenty-six percent of the iPhone is built using Samsung components, a situation that is expected to continue, regardless of the outcome of the trial. Under an avalanche of charges that Samsung copies rather than innovates on its own, Verhoeven responded that Samsung employs 1,000 of its own designers. It designs both components and its own products. It must be able to innovate on its own, if Apple keeps buying its products for its devices, he asserted. 

The cross of the first witness didn't go much better with asking the one question too many:


Apple lavished similar care on the user interface. "We wanted to make a device that was breathtakingly simple, something very easy to understand, something that you just wanted to pick up and use."
"It felt like an entirely new thing," he concluded.
Under cross examination, Verhoeven asked him if he had seen the similar Samsung designs. Stringer answered that he might have. "Did you see a design with four soft buttons at the bottom," Verhoeven persisted. Stringer answered that he might have, he wasn't sure.
"Did you think it was beautiful?" asked Verhoeven.
"Well," said Stringer, "it didn't stick in my mind." 

Tuesday, July 31, 2012

No more appellate judges till election

That's according to the BLT.  Totally ridiculous. The 10th Circuit nominee was supported by both parties and yet the Senate won't confirm because of election year politics.  Absurd.

Rumpole is asking about the all-time great judges.  I'm biased -- hands down it's Judge Edward B. Davis.  Everything you could ever want from a judge.  Fair, treated lawyers and clients with respect, funny when appropriate...  didn't care about stats, or pushing cases, or reversals.  Just cared about doing the right thing in the right way.

On a different topic, here's an article about an army trial in which the jury acquitted the defendant on some serious charges and convicted on lessers.  According to the article, the military jury will conduct a sentencing hearing and then sentence the defendant.  I absolutely love this idea and think we should use it in federal court, at least as a recommendation.  The jury -- which has heard the actual evidence -- is much better able than the federal sentencing commission to give advice to the federal judge as to the appropriate sentence.  Agree?