South Florida Legal Guide\'s Top Lawyers regularly handle complex and challenging cases throughout the region and beyond. Here are recent examples of their legal skills and expertise in a variety of practice areas.
Compensating Creditors at Blue and Green Diamond
It took Thomas Lehman, a partner at Tew Cardenas LLP, five years to close out the bankruptcy case of the Blue and green Diamond condominiums on Miami Beach. But when the case was resolved in November 2008, all creditors received 100 percent payments for their claims.
"Unlike a typical real estate bankruptcy where the only creditor to get money back is the construction lender – our team was able to generate more than $69 million from the sale of assets," said Lehman, who represented developer New Florida Properties. "In this case we were able to pay 100 percent to all the creditors and provide funds to the condominium association for final completion of the project. It was a very successful result."
Construction on the Blue and Green Diamonds – whose two 45-story oceanfront condominium towers on Miami Beach were among the tallest such buildings in the U.S. – began in the late 1990s with completion in 2000. However, only about two-thirds of the development's 630 residential units had been sold.
In November 2001, Union Planters Bank filed for foreclosure on a $50+ million construction loan, and three months later New Florida Properties, led by Brazilian developer Mucio Athayde, filed for Chapter 11 bankruptcy protection.
"At that time, the project was under a dark cloud," said Lehman. "Brokers wouldn't sell units, the subcontractors would not work on the Blue and Green Diamonds and the construction lender would not provide funds to complete the work. By filing for Chapter 11 bankruptcy, we were able to address all those issues in a transparent manner, and put the entire project in a more positive light."
Under an agreement approved by U.S. Bankruptcy Judge Jay Cristol, the reorganized project emerged from bankruptcy. A team of professionals led by Barry Mukamal, CPA, MarcumRachlin, a division of Marcum LLP, worked closely with Lehman to sell the remaining 136 units, along with 20 cabanas, 14 parking spaces and 130 storage lockers. Those sales provided funds for 100 percent payouts to all creditors, with a $3.6 million final return to the original developer. After sending out those checks in November, the bankruptcy case was finally closed by Judge Cristol.
Thomas R. Lehman
Partner Tew Cardenas LLP
Settling the Broward Sheriff's Office Strip-Search Case
For nearly a decade, the Broward Sheriff 's Office (BSO) regularly practiced strip searches of individuals arrested for traffic, regulatory and misdemeanor offenses. That included Daisy Cole, who was strip searched three times in the 12-hour period she was held in jail on a charge of obstructing justice without violence, and Martha Echeverry, who was strip-searched after being arrested for a misdemeanor battery charge. Charges against both women were dropped.
"No one should go through what these women went through," said Gerald Richman, shareholder, Richman Greer, who was the lead attorney in a successful class action lawsuit against the BSO. "This was a difficult case involving a clear violation of rights."
The original case was filed in 2002 by Fort Lauderdale criminal defense attorney Kevin Kulik, based on a Florida law that states no one arrested for a traffic, regulatory or misdemeanor offense can be strip-searched without probable cause or reasonable suspicion that the defendants possessed drugs, weapons or stolen property.
Kulik turned to Richman Greer to provide class action expertise. In 2005, the class was certified, and in 2006 the Fourth District Court of Appeal affirmed the decision.
In April 2008, Richman – assisted by Richman Greer attorneys Gary S. Betensky and Manuel Garcia-Linares – successfully negotiated an $11.5 million settlement on behalf of all class members. As class representatives, Cole and Echeverry received $50,000 and each of the 4,000-plus class members was eligible for a payment of $1,000.
The class consisted of anyone arrested for a minor crime who was subjected to a strip search without probable cause from Dec. 13, 1998, to Oct. 5, 2007. Class members had to prove they were incarcerated. The class also included anyone who was strip-searched, even if they were released on their own recognizance or bond under a policy in effect from December 1998 to November 2001.
Broward Circuit Judge Jeffrey Streitfeld signed the final settlement order in August 2008, noting the result provided relief to class members "under circumstances where the liability issues are still vigorously contested among the parties to this litigation."
Gerald F. Richman
Richman Greer, P.A.
Corporate and Business
Merging Republic Services and Allied Waste Industries
In December 2008, Republic Services, Inc. and Allied Waste Industries closed a $16 billion merger, creating the second largest waste management and environmental services company in the United States. The corporate transaction, which resulted in a combined company under the name of Republic Services Inc., was also a success for Akerman Senterfitt, which served as lead counsel for Republic throughout the process.
"The Republic Services -Allied Waste merger was not only very large, but also very complicated," said Jonathan Awner, chair of Akerman Senterfitt's Corporate Practice Group. "Obtaining financing in the middle of the credit crisis, handling Waste Management's unsolicited bid for Republic, dealing with environmental permit issues in multiple jurisdictions, and working through antitrust concerns, posed extraordinary challenges."
To address those diverse issues, five other South Florida Legal Guide Top Lawyers – Stephen Roddenberry, William Arnhols, James Bramnick, Susan Eisenberg and Ronald Ravikoff – were among the more than 20 Akerman attorneys who played a role in the transaction. "At Akerman, we have a strong, proven record of getting deals done in a wide array of business sectors," said Awner. "The deals we continue to close in the current economy underline the strength and talent of all our attorneys."
The transaction was structured as a merger of equals in which approximately $4 billion of Republic stock was issued to Allied shareholders in exchange for all outstanding Allied stock. In mid-September, Republic obtained a new $1.75 billion credit facility and modified an existing $1.0 billion credit facility in connection with the transaction.
The Akerman team negotiated the merger agreement, performed extensive due diligence, handled the deal's securities registration, debt financing, employee benefits and executive compensation, tax issues and environmental/regulatory matters, and closed the deal on behalf of Republic.
One of the more daunting tasks required before the closing of the merger included the review of hundreds of landfill and transfer station permits from the separate companies for the transaction, as well as thousands of municipal and other contracts, and obtaining necessary consents and approvals. Akerman has assisted Republic Services for more than 10 years on numerous corporate, securities and finance matters.
Jonathan L. Awner
Chair, Corporate Practice Group
Recovering Funds in ‘Megayacht' Fraud Case
Last July, the president of Aicon Yachts, LLC in Fort Lauderdale, called a customer buying a 2002 Cranchi yacht to be sure everything was in place for the upcoming closing. He was surprised when the client told him the closing had already taken place that afternoon and that he'd already given the $375,000 payment to one of the firm's yacht brokers.
Aicon Yachts called Fort Lauderdale criminal law attorney Leah Mayersohn for emergency help in dealing with the apparent theft. Although the funds had already been wired to New York, she was able to freeze the account, by filing a motion for an emergency injunction. She later filed suit alleging breach of contract, illegal conversion and violation of the Florida Deceptive and Unfair Trade Practices Act.
An investigation conducted in conjunction with local law enforcement authorities and the FBI uncovered the details of the fraud. Apparently, the yacht broker had set up a corporate entity in New York called Aicon Yachts, Inc. and opened a bank account at JPMorgan Chase with documents listing himself as corporate president. He then changed the date of the closing and had the funds wired to New York.
"Fortunately, we were able to move quickly, as the yacht broker had been planning to flee the country," Mayersohn said. "Ultimately, all but $20,000 of the client's costs were recovered – a very satisfactory resolution of the case for my client."
Mayersohn, who handles a large number of corporate criminal investigations, said the yacht broker's case was far from unique. "As the economy has declined, we have seen an increase in employee thefts, management criminal trouble and customer criminal activity," she said. "It is vital for a company to handle these matters promptly and effectively in order to achieve their desired results."
LEAH H. MAYERSOHN
Mayersohn Law Group, P.A.
Connecting Metrorail to Miami International Airport
One of South Florida's most complex and important eminent domain cases ended in January with a settlement that will enable Metrorail to connect its new line to Miami International Airport. Mark Tobin, shareholder, led Brigham Moore's legal team, which represented FPT Florida, Inc., a metals recycler whose parcel at 3700 NW North River Drive in Miami was condemned by Miami-Dade County. It was the final tract needed to connect the Liberty City Earlington Heights Station with the new Miami Intermodal Center at the airport.
"This was an extraordinarily complicated eminent domain case involving three parties, FPT, Miami-Dade County and Florida Power & Light (FP&L)," said Tobin. "This is a great example of how government and an owner can work together to find a creative solution that protects private property rights and the owner's business, while enabling the public to secure what it needs for its project."
The transaction was consummated on January 9, 2009, when title was transferred by Miami-Dade County depositing $9,350,000 pursuant to the final judgment entered by the court – far more than the county's initial offer of $1.7 million.
Initially, the county wanted to condemn a large portion of FPT's parcel through a partial taking that would have essentially put the company out of business. Then, Tobin presented a detailed engineering and financial analysis demonstrating the devastating impact that would result from the acquisition initially proposed by the county.
A key aspect of the case was how to deal with FPL's high-voltage power line easements and towers, easements for access to the other parcels and for electrical distribution as well as temporary easements for use in construction of the new public improvements.
"To the county's credit, it took the time to understand the complexities of the FPT operations and became committed to finding a workable solution," said Tobin.
The negotiated agreement provided for a phased "cure" plan, paying FPT to temporarily relocate its operations to the east side of the parcel while land development and construction crews worked on the columns and elevated Metrorail guideway to extend over the Miami River and connect to the airport. In April, county leaders celebrated groundbreaking of the $526 million, 2.4-mile Earlington Heights Connector.
Mark a. Tobin
Partner Brigham Moore, LLP
Piercing a Bahamian Trust
In 2001, a Wyoming judge finalized a bitter divorce between Nancy Breitenstine and Jerald R. Breitenstine. The couple had two children, as well as several million dollars in marital assets in a number of U.S. and international jurisdictions. Prior to the divorce, the husband had created a Bahamian trust using marital money, as well as funds from two trusts that had been created for the children.
After a seven-year legal battle, Joseph I. Zumpano and Leon N. Patricios, partners at Zumpano Patricios & Winker, P.A. were able to pierce that trust and recover approximately $4 million on behalf of Nancy Breitenstine.
"At the start of the case, our client had minor children, and when the case finished, she was a grandmother," said Zumpano. "This was an incredibly important case in that a Bahamian court saw the reality of what occurred and stood up for justice and rule of law."
Patricios said that one of the key steps in the fight occurred in 2001 when Zumpano, working with local counsel in The Bahamas, led his team to obtain an injunction freezing the ex-husband's assets. "If that had not occurred, the chances of getting a penny would have been miniscule," he said.
In 2005, a Bahamian judge issued a personal judgment against Jerald Breitenstine that included his bank accounts and real estate properties. "We established he had defrauded his spouse and that the trust was part of a fraudulent scheme," said Zumpano. In November 2008, the court ordered the funds in the trust to be turned over to Nancy Breitenstine.
The Breitenstine case marks a second historically important case in which Zumpano and Patricios have successfully collected funds in cross-border disputes under difficult and complex circumstances. In 2006, they made history in the Weininger v. Castro case, wherein almost $24 million was recovered for the daughter of a CIA pilot who was assassinated on orders from Fidel and Raul Castro.
Joseph I. Zumpano and Leon n. Patricios
Zumpano Patricios & Winker, P.A.
Labor & Employment
Defending a Liability-Related Suit
In July 2000, a national laser corrective surgery institute, wrongfully used a prominent ophthalmologist's name, likeness and biography in a series of advertisements in South Florida newspapers. The eye specialist was negotiating an employment agreement, but never joined the company. To compound the problem, the institute also had distributed marketing brochures nationwide to its various centers around the country.
Paul O. Lopez, a director with Tripp Scott and chair of the firm's labor and employment practice, defended the institute from the ophthalmologist's claims for royalties, disgorgement of profits, punitive damages and compensatory damages under the Federal Lanham Act.
"The hotly contested case was litigated for six years," said Lopez. "Liability was established against my client since there was no dispute about the facts and the applicable law. However, the question that eventually was tried in Broward County Circuit Court was damages."
The plaintiff had requested $30 million in damages based on the institute's profits and gross revenues during the time the institute was using his name. However, after hearing Lopez' arguments, the judge awarded $93,000 to the plaintiff, substantially less than an earlier settlement offer.
In March, nearly nine years after the incident, the Fourth District Court of Appeal affirmed the trial court's ruling on all counts, and the verdict remains intact. "All in all, I believe our team did a fantastic job in defending a very difficult case where liability was found, where the law was against us," said Lopez, "but we kept the damages award far below what the potential exposure was due to the facts and circumstances of the case."
Paul O. Lopez
Chair, Labor and Employment Practice
Resolving a Patent Infringement Matter
When faced with a difficult intellectual property issue, Montreal-based CryoCath Technologies Inc. turned to John Christopher, a partner at Christopher & Weisberg, P.A., to help find a solution.
The Fort Lauderdale/Washington D.C. firm launched a suit against Boston Scientific Corp. related to patent infringement in the medical device field, in the U.S., Canada and before the International Trade Commission. Thanks to Christopher and trial attorney Jason Buratti of the firm's Washington office, the case was resolved successfully, clearing the path for a "win-win" merger between CryoCath and Medtronic, Inc. in 2008.
"The strategy was to assert the patent rights of our client, developed over many years with respect to advanced medical devices for treating heart problems, to either force the accused party to stop its infringing activity or enter into an mutually advantageous business agreement," said Christopher, a registered patent attorney. "Such an agreement was reached, the cases were settled, and the path was cleared for commercialization of our client's unique, life-saving, medical products in the United States."
Under the terms of the merger agreement, Medtronic, through a wholly owned subsidiary, acquired the outstanding shares of CryoCath for approximately US$380 million. "Medtronic's offer reflected its endorsement of our cryoablation technology and the role that our flagship product, Arctic Front®, will play in treating atrial fibrillation patients around the world," said Jan Keltjens, president and CEO of CryoCath, in a press release announcing the merger plans. "Joining forces with Medtronic at this stage in our development will dramatically expand our reach and accelerate innovation to the benefit of patients today and tomorrow."
Christopher & Weisberg, P.A.
Personal Injury/Wrongful Death
Compensating an Injured Tow-Truck Driver
On the evening before Thanksgiving 2005, a tow-truck driver went to help a stranded motorist on Florida's Turnpike. He parked his truck on the side of the road and got out to talk to the other driver. Although the transmission indicator was in the "park" position, the tow truck rolled over the driver. He lost his leg and suffered other serious injuries, spending nearly a year and a half in the hospital.
The driver and his wife filed a lawsuit in 2006 in Palm Beach County. After the case had been in litigation for almost a year, the attorney turned down the case. At that point, the driver and his wife asked Lytal, Reiter, Clark, Fountain & Williams, LLP , to represent their interests.
Partners Joseph J. Reiter and Donald R. Fountain, along with associate W. Hampton Keen, pushed aggressively for compensation for their client, based on the severe personal injuries he suffered.
Reiter and Fountain have represented clients in numerous automotive design, manufacturing defect and vehicular accident cases winning numerous multi-million dollar verdicts.
After hiring engineers and experts from across the country, Reiter, Fountain and Keen determined that a defect in the shift system caused the unintended vehicle movement. Four component manufacturers vigorously defended the case with expert depositions across the country.
As the trial began early in 2009, the various defendants settled the case confidentially. As Reiter said, "Thanks to the firm's efforts, the driver does not need to worry about his future needs."
Joseph J. Reiter and Donald R. Fountain, JR.
Lytal, Reiter, Clark, Fountain & Williams, LLP