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12 3 4 5 6 7 8 9 RESOLUTION NO A Resolution authorizing the City Attorney to enter into a contract with Carlton Fields Jorden Burt, P.A. to provide the City of South Miami with legal representation in the case of Schwartz, et al. v. City Commission of the City of South Miami. WHEREAS, the City Commission adopted Ordinance No. 18-15-2225; and 10 WHEREAS, the plaintiffs in the case of Schwartz, et al. v. City Commission ofthe City of South 11 Miami have filed suit seeking a Writ of Mandamus directing City Commission to take a subsequent vote 12 on Ordinance No. 18-15-2225; and 13 14 WHEREAS, the litigation of land use issues is very specialized and it would be in the best 15 interest of the City to hire a trial attorney who has experience in this area of the law; and 16 17 WHEREAS, the City Attorney has received a very favorable recommendation of Richard 18 Ovelmen who has been rated by Martindale-Hubbell as a preeminent lawyer based on his AV rating that 19 he has maintained for twenty-five years. According to his resume, Mr. Ovelmen has practiced 20 constitutional, appellate, land use, local government, media, antitrust and intellectual property law for 21 more than thirty years; and 22 23 WHEREAS, Mr. Ovelmen has advised the City Attorney that Mr. Ovelmen and his team of 24 lawyers at Carlton Fields Jorden Burt, P.A. will have sufficient time to respond to the court's order to 25 show cause as to why the petition for mandamus should not be issued by March 30,2017. 26 27 NOW THEREFORE BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE 28 CITY OF SOUTH MIAMI, FLORIDA THAT: 29 30 Section 1. The City Attorney is authorized to enter into the attached retainer agreement with 31 Carlton Fields Jorden Burt, P.A. and Mr. Richard Ovelmen as the lead attorney for the purpose of 32 providing the City of South Miami with a defense in the case of Schwartz, et al. v. City Commission of 33 the City of South Miami. 34 35 Section 2. Severability. If any section clause, sentence, or phrase of this resolution is for any 36 reason held invalid or unconstitutional by a court of competent jurisdiction, the holding shall not affect 37 the validity of the remaining portions of this resolution. 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 Section 3. Effective Date. This resolution shall become effective immediately upon adoption. PASSED AND ADOPTED this __ day of _____ , 2017. ATTEST: CITY CLERK READ AND APPROVED AS TO FORM, LANGUAGE, LEGALITY AND EXECUTION THEREOF CITY ATTORNEY APPROVED: MAYOR COMMISSION VOTE: Mayor Stoddard: Vice Mayor Welsh: Commissioner Harris: Commissioner Edmond: Commissioner Liebman: Richard J. Ovelmen Attorney At Law 305-347-6805 Direct Dial rovelmen@car1tonfields.com Dr. Philip K. Stoddard Mayor of South Miami 6130 Sunset Drive South Miami, Florida 33143-3209 pstoddard@southmiamifl.gov March 10,2017 ATTORNEYS AT LAW Miami Tower 100 S. E. Second Street 1 Suite 4200 Miami, Florida 33131-2113 P.O. Box 0191011 Miami, Florida 33101-9101 305.530.0050 1 fax 305.530.0055 www.carltonfields.com Atlanta Hartford Los Angeles Miami New York Orlando Tallahassee Tampa Washington, D.C. West Palm Beach PRIVILEGED AND CONFIDENTIAL ATTORNEY WORK PRODUCT AND ATTORNEY CLIENT COMMISSION Re: Schwartz, et al. v. City Commission of the City of South Miami Case No. 2015-022211-CA-01 11th Circuit Court, Miami-Dade County, Florida Dear Mayor Stoddard: We are pleased that you have asked Carlton Fields Jorden Burt, P.A., to represent City Commission of the City of South Miami (the "City") in connection with the above matter. This letter will confirm our discussions with you about your engagement of the firm and the basis on which the firm will provide its legal service to the City. Scope of representation. It is our understanding that, in connection with this representation, we will defend the City of South Miami in the above captioned matter. As this matter progresses, the nature or scope of the services we are to render may change and, in that event, it may be necessary for us to seek a modification of this agreement. The basis for fees and costs. We are customarily compensated on an hourly basis for our services, and we propose to follow that arrangement here. My discounted hourly rate for this matter will be $550. The rates of other attorneys in our firm who may work on this matter are Jason Kairalla at $425 and Justin Wales at $300. These rates are periodically adjusted and the rates in effect when services are rendered will be used in preparing our statement. If you have any questions about those adjustments, we will, of course, be happy to discuss them with you. Clients are responsible for our customary charges for fees related to legal services rendered and for costs and disbursements incurred by our firm on the client's behalf, as described in the enclosure "Charges and Terms for Legal SeNices," (the "enclosure") which is considered part of this engagement letter and to which we respectfully direct your attention. Bills for some third party costs may be transmitted directly to you for payment, and it is expected that these bills will be paid by you upon receipt. Carlton Fields Jorden Burt, P.A. 111067479.1 Carlton Fields Jorden Burt, P.A. practices law in California through Carlton Fields Jorden Burt, LLP. Dr. Philip K. Stoddard March 10, 2017 Page 2 No binding estimate of fees. We are mindful of your interest in controlling the cost of legal services. Our goal likewise is to represent you efficiently and in a cost-effective manner. Toward this end, we will attempt to ensure that work is allocated among senior and junior attorneys (or paralegals, where appropriate) to maintain high quality service at a reasonable cost. To the extent practicable and consistent with our professional responsibilities, we will accommodate your wishes about staffing this case. We cannot determine at the outset the amount of time, the expertise, or the costs that will be required, and there are many factors that can change any such estimate. Because of these uncertainties, I am unable to provide you with any estimate of our fees upon which you can reasonably rely. Billing frequency, review and payment of invoices. We will send you our invoice for our fees and costs each month. We will include with the invoice a reasonably detailed' description of the services and costs covered by the invoice. Our statements are due on receipt. Please note year-end bills rendered by December 11,2017, must be paid no later than December 28,2017. Additional details of our billing practices agreed to herein is provided in the enclosure. We will provide you with statements after the end of every month for work performed and expenses recorded on our books during the previous month. To deal with any concerns efficiently and while memories are fresh, itwill be important for you to review all statements as soon as you receive them and notify us promptly of any concern. To that end, you agree to review each statement and notify our Firm in writing within 15 days of the date of the statement of any error, deficiency, or question about the statement or the services rendered, and agree that the absence of such notice will be deemed an agreement with the correctness and accuracy of the statement rendered. If any statement is not paid when due, then we must reserve the right to suspend performing legal services until you have made arrangements satisfactory to the Firm for payment of anyamounts due and for future services and expenses. Submission of advance fee/cost deposit. We ask that you forward to us, with your executed copy of this letter, an advance fee and cost deposit in the amount of $5,000. This advance fee shall be held by our firm as explained in the enclosure. In the event of delay in payment of our outstanding invoices or near the end of our financial year (December 31), we reserve the further right to apply advance fee deposits to outstanding invoices. Payment may be made by check or wire transfer. Wire Transfer instructions are as follows: 111067479.1 Bank Name Address City, State, Zip ABA No. SWIFT CODE Account Name Accountholder Address: City, State, Zip Account No. Reference Florida Community Bank 1255 Tamiami Trail . Charlotte, FL 33953 066016766 FCBNUS33 Carlton Fields Jorden Burt, P.A.Trust Account 4221 W. Boy Scout Blvd., Suite 1000 Tampa, FL 33607 3108772800 City of South Miami Dr. Philip K. Stoddard March 10, 2017 Page 3 Additional client obligations. Our ability to represent you depends in large part on information you provide us. Your communication to us concerning the representation is privileged, meaning that we will not disclose it without your consent or when required by law or under exceptional circumstances described in the Rules of Professional Conduct. It is important that you be truthful and complete in informing us of the facts surrounding the matter so that we can properly analyze the legal issues and advise you. In addition, there are decisions in the course of any legal representation that must be made by the client. For these reasons, we must always have your current contact information, and you agree to promptly respond to any requests for information, consultation or decisions. ' Please review the cautions in the enclosure concerning electronic communications. Your signature below will acknowledge those warnings and agree to the recommendations. We encourage you to write or call us at any time if you have any question about our invoice or about our serVices. We will be pleased to discuss any concerns that you may have. If these arrangements are satisfactory, please print out and sign a copy of this letter and return it to me at your earliest convenience. We look forward to working with you on this matter, and, again, we appreciate the opportunity to be of service to you. RJOlma Enclosures 111067479.1 Very truly yours, CARLTON FIELDS JORDEN BURT, P.A. By: _____________ _ Richard J. Ovelmen Accepted and agreed to this __ day of _______ ,2017. CITY OF SOUTH MIAMI By: _____________ _ Philip K. Stoddard, Mayor CARLTON FIELDS JORD~N BURT, P.A. CHARGES AND TERMS FOR LEGAL SERVICES Our firm's goal is to provide·its clients with legal services of high quality, rendered promptly and responsively to the clients' needs. In return, clients are expected to pay promptly the firm's statements for such professional services and related disbursements. The purpose of this memorandum is to set forth the basis upon which our firm bills its clients for legal services and related charges, and the terms on which such statements are rendered. 1. Retainers. A retainer is a sum of money paid to a lawyer to guarantee the lawyer's future availability. A retainer is not payment for past legal services and is not payment for future services. Some clients keep us "on retainer" even though they have no current legal work. A lawyer cannot represent one client adverse to another current client without the consent of both. The rules are different with respect to former clients. Without a separate agreed retainer for the firm to maintain you as a current client, the attorney-client relationship between the firm and a client shall be deemed ended 30 days after the date of the final bill for any matter. 2. The Basis for Fees. (a) Hourly. In most cases, our firm's fees are determined with reference to the time expended by firm members, associates, legal assistants and other professionals on the matter, at hourly rates established in relation to the experience and skills of the person performing the work. Our firm's hourly rates are revised periodically to reflect increased skills, costs, and other factors. Clients may obtain information about the range of the rates currently in effect from the attorney in charge of the matter. [(b) Alternatives to hourly fees. In limited circumstances alternative billing arrangements can be agreed --such as a fixed fee, which may be non-refundable. When the size, complexity, difficulty, or urgency of a matter, or the particularly good result obtained, or similar factors so dictate, we may increase our fee accordingly.] 3. Advance Payments of Fees and Other Charges. Our firm's policy is to require an advance fee deposit for hourly billings. We will hold the advance fee·in trust and apply it to the final invoice for the matter. In the event the client is late in paying earlier invoices, we will apply the advance fee to satisfy those invoices. The client will then be. expected to restore the advance fee to the original amount, as a condition for our continuing the representation. Otherwise, we reserve the right to terminate the representation at that point, and the client will be obligated to pay any remaining balances of fees and costs still due and owing. Because of the importance of our year-end accounting (December 31), we reserve the right to apply advance fees to outstanding invoices by year end. Advance fee deposits are applied first to disbursements and then to fees for legal services at applicable rates. Advance fee deposits are held in a client trust account, until withdrawn. Our firm does not segregate advance payments received from clients nor earn or pay any interest with respect to them. If our firm's representation is terminated, unless otherwise agreed any portion of the advance payment not applied by or owed to our firm for its fees and disbursements with respect to services performed and disbursements accrued prior to such termination will be refunded. 4. Costs and Disbursements. Clients are billed for the costs incurred on their behalf such as filing fees, court reporter charges, out-of-pocket expenditures, and travel as well as our customary charges related to legal services rendered, including long distance telephone, 111067479.1 photocopying, messenger service, computerized research, mailing, express delivery, overtime secretarial charges, bills rendered to the firm by third party providers of services, and other expenses. Costs are posted and billed based on standard rates published by the provider or contained in contracts with the firm. In some cases, the provider may grant volume discounts, which are not substantial in amount and are impossible to predict, and it is not practical to adjust the bill to reflect such discounts. Bills for some third party costs, including arbitration or mediation costs and expert witness fees, may be transmitted directly to the client for payment, and it is expected that these bills will be paid by the client upon receipt. 5. Frequency of Billing. Statements for services and disbursements are generally rendered monthly. In certain transactional matters, our firm may render a statement upon the completion of the transaction or, if the transaction is not completed, at the time work is completed. 6. Payment Terms. All statements for professional fees, other charges, and disbursements are due upon receipt. Our firm reserves the right to terminate its services if statements are not paid when due. Termination will not discharge the obligation to pay our firm all amounts owed. Because it is important to resolve any questions about a bill while memories are still fresh, each invoice must be reviewed and any questions raised within 15 days of receipt, or any issue will be deemed waived and the invOice agreed to. Any invoice for which payment has not been received within 35 days of invoice date will bear . interest <;I.t the statutory rate for th.e jurisdiction of our office where the engagement originated. The per annum statutory interest rates for the current year are: Florida -4.97%; Georgia -7%; New York -7%; Washington, D.C. -6%; Connecticut -8%; California -7%. 7. Document Retention. Your Documents Submitted to Us. We will return any original documents you submit to us after they are no longer needed for the representation. After the matter is concluded we review our files for such original documents and then return them. Nevertheless, please keep copies of original documents you send us. . Your Documents Relating to the Matter. If this is a matter in litigation, or as to which litigation is anticipated, PLEASE do not destroy any documents or physical thing connected In any way with the dispute. If you have a program of regularly destroying old documents, please suspend it with respect to documents that might be associated with the matter. This also applies to electronic records, e-mails, and the like. We will discuss this subject with you at greater length, but recent developments in the law have made the matter of document preservation important. Our Document Retention. After a matter is concluded, our policy is to a) return original client documents; b) destroy duplicates, drafts, non-essential or interim pleadings, depositions, transcripts, discovery, incidental correspondence, and the like; c) either (i) digitally reproduce the remaining documents and destroy physical copies or (ii) store the remaining file at a secure off-site facility for 6 years and d) destroy the file after 6 years with no further notice. Please let us know if you want us to deliver any part of the file to you after the matter is concluded. 111067479.1 CARLTON FIELDS JORDEN BURT, P.A. BASIS OF CHARGES FOR ANCILLARY SERVICES January 1 , 2017 COMPUTER RESEARCH (Includes Westlaw, Lexis and All Other On-Line Computer Searches) LITIGATION SUPPORT SECRETARIAL/wORD PROCESSING OVERTIME POSTAGE FEDERAL EXPRES8UPS MILEAGE REIMBURSEMENT FAX TRANSMISSIONS TELEPHONE CHARGES REPROGRAPHIC SERVICES OUT-OF-POCKET COSTS 111067479.1 Standard Lexis, Westlaw rates without markup Please refer to the attached Practice Technology Cost sheet $ 40 per Hour Actual Cost Actual Cost 53.5 cents per mile (Will change as the IRS changes the amount of the allowable mileage reimbursement) $ .20 per page for outgoing faxes plus the cost of any long distance phone call Clients are billed for the actual cost of long distance calls. Cellular phone calls are billed at $ .20 per minute. Clients will be charged $ .20 per copy for routine reproduction services and $.50 per copy for color reproduction services. Clients are requested to provide a cost retainer to cover estimated out-of-pocket costs which may be incurred by the Firm during the representation. LITIGATION SUPPORT PRICING FOR CFJB-PREFERRED VENDORS (All processing fees include OCR, De-Dupe, and Bates labeling where appropriate.) Service Data Processing and Review Platform Server Data Collection 111067479.1 Internal CFJB $220/hour IRIS (Relativity) $300/hour Driven (One) $275/hour FfI (Ringtail) $325/hour Revised 9/2/2016 CARLTON FIELDS JORDEN BURT, P.A. ELECTRONIC COMMUNICATIONS It is likely that during the course of this engagement both you and the firm will use electronic devices and Internet services (which may include unencrypted wired or wireless e- mail, cellular telephones, voice over Internet, electronic data/document web sites, and other state of the art technology) to communicate and to send or make available documents. Although the use of this technology involves some degree of risk that third parties may "hack into" or otherwise access confidential communications, we believe and, by agreeing to the engagement letter, you agree that the benefits of using this technology outweigh the risk of accidental disclosure. Nevertheless, just as we have policies and systems in place designed to make our electronic communications with you reasonably secure, it is equally important that you also communicate with us in a manner that reasonably protects the confidentiality of information we share and any attorney-client privilege that may apply to our communications.' This means that you should not use any computers or other electronic devices, networks, or Internet addresses that are owned, controlled, or may be accessed by others, including but not limited to, your employer, a hotel, library or Internet cafe, or a shared home computer, to send or receive confidential information to or from us. Any device you use should be password protected and not accessible for use by any third party. 6/26/15 111067479.1 RICHARD J. OVELMEN Carlton Fields Jorden Burt, P.A. 100 S.E. Second Street, Suite 4200 Miami, Florida 33131 CONFIDENTIAL PROFESSIONAL RATINGS Mr. Ovelmen is a Martindale-Hubbell "preeminent" lawyer based on maintaining his "A V" rating for more than twenty-five years. He has been listed in the Best Lawyers in America since 1996. He has bee.n repeatedly named a Florida "Super Lawyer." And the South Florida Legal Guide has named him an outstanding attorney for the past several years, and the Outstanding Media Lawyer for 2011. PROFESSIONAL EXPERIENCE 2014 to present: 1997-2013 33023913.4 Carlton Fields Jorden Burt, Litigation Shareholder. Mr. Ovelmen has practiced constitutional, appellate, land-use, local government, media, antitrust, and intellectual property law, including particularly First Amendment, defamation, trademark and copyright litigation, litigation regarding access to government held information, privacy, and trade secret claims for more than thirty years. His practice also includes complex class action defense, commercial litigation, Bert J. Harris Act Claims, litigation concerning Developments of Regional Impact, local referenda and initiatives, and international litigation. Mr. Ovelmen has defended or participated in the defense of more than 100 libel or slander cases. He has represented both Universities and students in litigation involving academic and educational disputes. Jorden Burt LLP, Litigation Partner. He was Chairman of the Firm's Appellate .Practice Group, supervised the peer review process for all Firm appellate briefs, and created the Firm's in-house training program for legal writing. The program consisted of sophisticated "nuts and bolts" seminars on brief writing, Rule 23(f) Petitions, stay motions, writing briefs generally seeking discretionary review, interlocutory appeals, and preservation of issues for appeal. His areas of practice included appeals to all courts, defamation and intellectual 1 property litigation, class action litigation, constitutional litigation, and local government or land-use litigation. 1988-1997: Baker & McKenzie, International Litigation Partner. Routinely handled litigation matters involving First Amendment and other constitutional issues; local government and land-use; media relations; libel and privacy issues; retraction demands; FOIA, trade and business defamation defenses; intellectual property, trademark, trade secret, copyright, antitrust, and franchising disputes; product liability defense; constitutional litigation; complex commercial litigation; international litigation, and appeals to all courts. 1982-1988: The Miami Herald Publishing Company, General Counsel. Chief litigation counsel to the company, but also exercised authority over all of the newspaper's legal affairs, "business side" and "newsroom", litigation and non-litigation. Argued cases for The Miami Herald in the Florida Supreme Court, the United States Courts of Appeals, and the inferior state and federal courts. Wrote numerous briefs amici curiae on press issues in the United States Supreme Court for many national media companies. Other responsibilities included pre-publication libel review of news articles, editorials, and advertising; antitrust counseling, negotiating leases, handling copyright and other intellectual property questions, drafting contracts, and distributorship agreements, as well as supervising the handling of tax opinions, personal injury claims, and labor or E.E.O.C. matters. Time magazine recognized the Miami Herald as one of the nations "10 Great Newspapers" during Mr. Ovelmen's time as G.C. 1981-1982: Paul & Thomson, Litigation Partner. 33023913.4 Litigation partner specializing in First Amendment, and other constitutional cases, particularly libel, intellectual property, land-use, County Charter issues; and Developments of Regional Impact litigation, and antitrust law. Practice was largely appellate or summary judgment oriented, but also included several notable antitrust and libel trials, as well as commercial suits, franchising, and products liability defense. Principal duties other than litigation included recruiting and training of associates. Paul & Thomson was recognized by The American Lawyer as one of 'Thirteen Great Small Law Firms" in United States during Mr. Ovelmen's tenure with the firm. The fIrm has since dissolved, but Dan Paul, Frank Burt, and Mr. Ovelmen -all partners at Paul & Thomson reunited at Jorden Burt. 2 1978-1981: Paul & Thomson, Litigation Associate. 1997-2016 SELECT CASES Worked in a broad range of fields including constitutional litigation, local government law, constitutional tax litigation, press law, antitrust law, intellectual property, products litigation, commercial disputes, and libel. Participated in a number of major trials. Special Outside Counsel to City of Miami Beach. Selected constitutional land-use litigation. Among Mr. Ovelmen's more interesting cases are the following: SUPREME COURT PRACTICE 33023913.4 McPherson ,v. US., 131 S. Ct. 1445 (2015). Cert. Petition US. Supreme Court. IMS v. Sorrell, 131 S. Ct. 2653 (2011). Amicus brief for TechlFreedom successfully supporting Respondents. ACLU v. Miami-Dade County School Board, 130 S. Ct. 659 (2009). Successful brief in opposition to Cert. Petition. South Florida Water Management District v. Miccosukee Tribe ofIndians of Florida, No. 02-626 (S. Ct.). Co-counsel to Miccosukee Indian Tribe in victory before the United States Supreme Court in which the Tribe sought to require the South Florida Water Management District to obtain Clean Water Act permit for pollutants being discharged into the Everglades. US. Dept. of Justice v. Reporters Committee For Freedom of the Press, 489 U.S. 749 (1989). Represented American Newspaper Publishers Association, American Association of Newspaper Editors, and others in United States Supreme Court in FOIA case involving public access to FBI "rap sheets". The Florida Star v. BJ.F., 109 S. Ct. 2603 (1989). Successfully represented press amicus parties in United States Supreme Court on the merits of the privacy question: whether a newspaper may be held strictly liable for publication of the name of an alleged rape victim. 3 Butterworth v. Smith, 110 S. Ct. 1376 (1989). Successfully represented press amici in U.S. Supreme Court in challenge to Florida Statute punishing state grand jury witnesses Who speak publicly about their testimony after investigation is closed. Arkansas Writer's Project v. Ragland, 107 S. Ct. 1722 (1987). Successfully represented press amici in suit challenging discriminatory tax on the press. Globe Newspapers v. Superior Court, 457 U.S. 596 (1982). Wrote the brief on behalf of more than 50 national media clients successfully arguing the First Amendment is violated by the automatic exclusion of the press from trial testimony by minor victims of sex crimes. LOCAL GOVERNMENT 33023913.4 International Players Championship v. Matheson, (Fla. Cir. Ct.). Granted summary judgment on professional tennis center developer's challenge to decades-old development restrictions on Crandon Park. Decision later affIrmed per curium by Florida's Third District Court of Appeal. Regalado v. City of Miami, (Fla. Cir. Ct.). Successfully defeated dismissal and partial summary judgment motions in lawsuit asserting City mislead voters by seeking voter approval of a purportedly "privately funded" skyscraper complex when development would be subsidized with millions government funding. Negotiated settlement whereby developers agreed never to accept public money for project and to pay $400,000 in attorney's fees to plaintiffs. Eisenberg v. City of Miami Beach and Club Madonna v. City of Miami Beach involved residents that brought unrelated 1983 civil rights claims against the City for supposed violations of their constitutional rights. In both instances fully defeated plaintiffs' claims and were able to recover attorneys' fees. Hoefling v. City of Miami (11 th Cir.). Reversed district court order granting the City's Motion to Dismiss in 1983 civil rights action against City for unlawfully taking and destroying a marine resident's houseboat without due process. Club Madonna v .. City of Miami Beach, No. 08-23469-CIV- Moore/Turnoff (S.D. Fla.). Successful defense of City and 4 Commissioners in action challenging constitutionality of Ordinances prohibiting sale of liquor in nude establishments, and asserting violation of First Amendment right of access to legislative process. MCZ/Centrum Flamingo, LLC v. City of Miami Beach, No. 08-22419- AltonagalBrown (S.D. Fla.). Successful defense of City in unconstitutional takings suit over baywalk easement at largest development in the City. Sierra Club v. Robert B. Flowers, No. 09-10877-GG (United States Court of Appeals, 11 th Cir.). One of lead appellate counsel for limestone mining companies in Everglades Lake Belt District in appeal that successfully reversed district court. Mike Costa Foliage, Inc. v. Department Of Agriculture And Consumer Services, No. 3D02-1344 (Fla. Dist. Ct. App. 2003). Successfully opposed efforts by Florida Department of Agriculture to destroy Nursery's grove of 3,000 calamondin mother trees which were allegedly "exposed" to Asian Strain Citrus Canker. City of Miami Beach v. Swedroe, 788 So. 2d 404 (Fla. Dist. Ct. App. 2001). Successful defense of City in injunctive and contempt proceedings with regard to architect's suit for revocable permit for use of Cityright-of- way. West Side Partners, Ltd. v. City of Miami Beach, No. 98-13274 CA-30 (Fla. Cir. Ct.). Successful defense of City's Charter Amendment requiring referendum approval of density increases to waterfront property; defense of multiple Bert J. Harris claims against City brought by German developer Thomas Kramer regarding repeal of city-wide Design Review Bonus zoning; defense of bad faith claim against City. Miami Heat Limited Partnership v. David C. Leahy & Stop New Arena Committee, 682 So. 2d 198 (Fla. Dist. Ct. App. 1996). Successfully obtained court ruling that the county's Home Rule Charter controls over a contrary municipal ordinance. DEFAMATION 33023913.4 Abrams v. Rose, No. 09-33197-CA-13 (Fla. Cir. Ct.). Successful defense of Jewish Women Magazine and author of article allegedly defamatory because it states husband raped and abused wife. 5 33023913.4 BankAtlantic v. Richard Bove, Ladenburg Thalmann & Co., No. 08- 32714(19) (Fla. Cir. Ct.). Successful defense of Ladenburg in libel action brought by Bancorp BankAtlantic and BankAtlantic over allegedly defamatory analysts' report. Club Madonna v. lane Gross, No. 04-11708 CA 02 (Fla. Cir. Ct. 2004). Motion to dismiss libel suit granted with prejudice as to all statements alleged defamatory in suit by nude nightclub and owner against wife of City of Miami Beach Commissioner. Ford v. American Reliable Insurance Co., No. CV-S-01-0413-DWH- PAL, (S.D. Nev.). Successful defense of libel suit brought by nationally known boxing judge against insurer. Rexall Sundown v. Dr. Matthias Rath, No. 99-CIV-8972 (S.D. Fla. 1999). Successful libel defense of Dr. Matthias Rath, an eminent German research doctor who was one of the discoverers of "bad cholesterol" and partner to Nobel Laureate Linus Pauling. Plaintiff, a publicly held vitamin manufacturer sued Rath in West Palm Beach state court for allegedly libelous statements made on a Netherland's web site to the effect that Rexall is controlled by organized crime. Mr. Ovelmen removed the case to federal court. The federal district court then dismissed the case on personal jurisdiction grounds, holding that the largely passive web site did not provide a basis for jurisdiction over the defendants under the Due Process Clause. After filing a notice of appeal to the Eleventh Circuit, the plaintiff filed a voluntary dismissal with prejudice. Smith v. C.A.N.F., 731 So. 2d 702 (Fla. Dist. Ct. App. 1999). Successful defense on appeal of adverse jury verdict (did not handle case in trial court) in libel suit against Professor Wayne Smith, Director of Cuban Studies at Johns Hopkins University brought by the Cuban American National Foundation, the preeminent national organization of Cubans in America. The appellate court held that an allegedly defamatory "sound byte" from Professor Smith, that was included in a public television documentary, had to be considered in proper context, and when done so was not susceptible of defamatory meaning. The appellate court entered judgment for Smith, and the Florida Supreme Court denied review. Mijares v. Mortgage Asset Research Institute, No. 99-CIV-0182 (S.D. Fla. 1999). Successful defense of libel suit brought by mortgage broker allegedly defamed in letter from PMI Mortgage Insurance Company to insured denying coverage under mortgage insurance policy on the grounds' 6 that the insurance policy was procured by fraud in which the mortgage broker participated. Morse v. Meredith Corp., No. 96-014345 (Fla. Cir. Ct. 1996). Successful defense of libel suit against Ladies Home Journal based on statements made by wife of baseball star Cal Ripken. Jorge Mas Canosa v. New Republic and Ann Louise Bardach, No. 94- 2681-CIV-DAVIS (S.D. Fla. 1995). Successful defense of major libel suit brought by arguably most powerful Cuban American with no retraction or correction by author who had been sued on over 130 statements published in article; magazine publisher retracts "cover line" only. Kuhl v. Daily Business Review, 93-1707-CIV-KING (S.D. Fla. 1995). Successful defense of libel suit brought by Canadian developer on article concerning misuse of conduit revenue bonds. Cypress v. Tamiami Partners, 662 So. 2d 1292 (Fla. Dist. Ct. App. 1995). Successful defense of libel suit brought by ousted Indian "bingo" hall management against Chief of Miccosukee Indian Tribe and Dexter Lehtinen, its General Counsel. Sanford L. Bohrer and F. Lee Bailey were plaintiffs' counsel. Magda Montiel Davis v. Marieta Fandino, et aI., 653 So. 2d 516 (Fla. Dist. Ct. App. 1995). Successful defense of three libel suits brought against hispanic media by former congressional candidate. Centrone v. Miami Herald Publishing Co., (Fla. Cir. Ct. 1988-1994). Successful defense of libel suit brought by neurosurgeons and their affiliated companies. Plaintiffs' counsel Jonathan Lubell of New York City and local trial counsel, Dianne Weaver. Suit targeted over 120 statements published in twelve articles that were part of a series of fifty- two articles about the plaintiffs. Hard damages suffered were in excess of $100 million. Thirteen consecutive partial summary judgments obtained from trial court; voluntary dismissal ultimately taken by plaintiffs; case amicably resolved on appeal. OPEN GOVERNMENT 33023913.4 American Securities Insurance Co. v. Florida Office of Insurance Regulation, (Fla. Cir. Ct.). Obtained summary judgment in a "reverse Public Records Act" lawsuit against the Florida Office of Insurance Regulation. 7 Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988). Successfully represented press parties in suit seeking access to divorce file of state senator. Miami Herald Publishing Co. v. City of North Miami, 420 So. 2d 653 (Fla. Dist. Ct. App. 1982), 452 So. 2d 572 (Fla. Dist. Ct. App. 1984), approved and remanded, 468 So. 2d 218 (Fla. 1985). On behalf of The Miami Herald, persuaded the court the state public records law applies to the litigation files of city and county attorneys. Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1985). Successfully argued for the State of Florida and The Herald that all meetings between public bodies and their lawyers must be held in public under the State Sunshine Law. Forsberg v. The Housing Authority of the City of Miami Beach, 455 So. 2d 373 (Fla. 1984). Successfully representing press amici, wrote the principal brief arguing that the right to privacy does not extend to records pertaining to subsidized public housing.' . Small Business Administration v. Miami Herald Publishing Company, 670 F.2d 610 (5th Cir. 1982). Successfully argued that SBA loan documents are subject to the F.O.LA. Parsons & Whittemore v. Metropolitan Dade County, 429 So. 2d 343 (Fla. Dist. Ct. App. 1981). Convinced the Third District Court of Appeals that records of a garbage-to-energy plant were not "public records". Krause v. Reno, 366 So. 2d 1244 (Fla. Dist. Ct. App. 1979). Successful Sunshine law suit for access to proceeding of Citizen's Corpmittee which assisted in selection of police chief. FIRST AMENDMENT 330239 J3A Wollschlaeger v. Governor of State of Florida, __ F.3d _ (llth Cir. 2016) (en banc). Amicus brief for American Bar Association supporting rehearing en banco Pending en banco Miami-Dade County School Board V. ACLU, No. 06-14633-GG (llth Cir. 2009). Successful appeal for School Board in infamous "Cuban Book Ban" case reversing injunction. 8 33023913.4 State of Minnesota v. American Bankers Insurance Co. of Florida, No. K2-03-1467 (D.C. Minn.). Successful First Amendment defense of insurer accused of making political contributions which were illegal under Minnesota law. The State alleged that insurer made campaign contributions to the National Republican Party which were later routed back to Minnesota State political campaigns and which were intended to illegally influence these political campaigns. Powell v. Allstate Insurance Co., 652 So. 2d 354 (Fla. 1995). Successfully represented amicus curiae AC.L.D. in case to decide whether racially bigoted remarks during jury deliberations are grounds for new trial or inhere in the jury's verdict. In Re Advisory Opinion to the Governor, 509 So. 2d 292 (Fla. 1987). Argued on behalf of the Florida Press Association and other media in this landmark case. involving the constitutionality of a state sales tax on newspapers, advertising, other services. Palm Beach Newspapers v. Burk, 471 So. 2d 571 (Fla. Dist. Ct. App. 1985) (en banc); 504 So. 2d 378 (Fla. 1987). Unsuccessfully argued on behalf of The Miami Herald that the press enjoys a First Amendment right of access to pretrial criminal depositions. Rasmussen v. South Florida Blood Service, Inc., 500 So. 2d 533 (Fla. 1987). Argued unsuccessfully for plaintiff as amicus curiae that the right to privacy does not protect the identity of blood donors who have AIDS. Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986). Representing amici curiae, successfully argued to the Court that journalists have a qualified First Amendment privilege not to give compelled testimoriy in a criminal prosecution. United States v. Posner, 644 F. Supp. 885 (S.D. Fla. 1986). Successfully briefed right of press access to Victor Posner trial exhibits. Keller v. Miami Herald Publishing Co., 778 F.2d 711, (l1th Cir. 1985). Successfully briefed right of press to publish satirical political cartoons in libel action. In re Tribune Co., 784 F.2d 1518 (11th Cir. 1986). Argued for press intervenors that the three judge panel should provide guidance to the lower courts on press access rights to bench conferences. 9 COMPLEX COMMERCIAL AND CLASS-ACTION LITIGATION 33023913.4 In Re Florida Cement and Concrete Antitrust Litigation, No. 09-23187- CIV-Altonaga (S.D. Fla.) and No. 09-23493-CIV-Altonaga (S.D. Fla.). Co-counseled in successful defense of civil class action antitrust price- fixing case brought against Florida concrete manufacturers. Aegon USA, Inc. "actual charges" litigation: Mr. Ovelmen is involved in the defense of approximately 22 cases, some national class actions, others state class actions, and still others individual actions, asserting claims that the Life Investors' Insurance Company must pay its insureds under supplemental cancer policies the healthcare providers' "list prices" instead of much lower fees actually paid to them by primary healthcare insurers, including: Gooch v. Life Investors Insurance Co. of America, No. 1:07-0016 (M.D. Tenn.). Smith v. Life Investors Insurance Co. of America, No. 2:07-cv- 00681 (W.D. Pa.). Pipes v. Life Investors Insurance Co., No. 1:07-CV-00035-SWW (E.D. Ark.). Bear Stearns & Co. v. Matthew Denn, Insurance Commissioner for State of Delaware, DCA Case No.: 5D08-3029 (Fla. Dist. Ct. App. 2008) Successful appellate mediation of early CDO litigation involving failure of msurance company. London v. Wal-Mart Stores, Inc., No. 99-1298-CIV-UNGARO- BENAGES (S.D. Fla.); Hartv. American Bankers Insurance Co., No. 01- 19722 CA 24 (Fla. Cir. Ct.). Successful defense of class action lawsuit seeking to void tens of thousands of insurance certificates on the theory that insurer's alleged non-compliance with certain technical regulatory requirements of Florida Insurance Code rendered the insurance illegal and void ab initio. Roger London v. Wal-Mart Stores, Inc., et al.. 340 F. 3d 1246 (l1th Cir. 2003). Obtained discretionary 23(f) review of trial court's class certification order. Thereafter, obtained reversal of order which certified, class of insureds seeking to void their insurance certificates for alleged 10 non-compliance with certain technical regulatory requirements of Florida Insurance Code. Cheatwood v. Barry University, 835 So. 2d 1146 (Fla. Dist. Ct. App. 2002). Successful defense of appeal challenging trial court's denial of class certification to a class of law students. purportedly injured by University's delay in obtaining accreditation. State of Florida v. Globe, 648 So. 2d 110 (Fla. 1994}. Successfully represented NBC, The New York Times, and other amici curiae in support of Globe's defense of criminal prosecution for publishing name of alleged rape victim in William Kennedy Smith case. Presented First Amendment defense of statutory privacy claim for all media parties. GAF Corp. v. Zack Co., 445 So. 2d 350 (Fla. Dist. Ct. App. 1984). Successfully defended GAF Corp. in roofing materials dispute by establishing "economic loss" rule in Florida. Boeing v. Clark, 395 So. 2d 1226 (Fla. Dist. Ct. App. 1981). Persuaded the Third District that an airplane manufacturer should not be held liable for injury to a stewardess caused by engine noise. Bank of America International v. Compania Anonima Simantab, 373 So. 2d 68 (Fla. Dist. Ct. App. 1979). Successfully argued to the Third District that a "single act" by a Venezuelan Corp. could constitute "doing business" in Florida. INTELLECTUAL PROPERTY 33023913.4 Rath, Health Now, Inc. v. Network Marketing, L.C., 790 So. 2d 461 (2001). Successfully represented Dr. Matthias Rath by establishing that a party waives right to arbitration by obtaining temporary injunctive relief from court rather than from arbitrator. Carl L. Herrmann Partners, Inc. v. Safeware, the Insurance Agency, Inc., No. CV-99-7851 (C.D. Cal. 2000). Successfully resolved action alleging trademark, copyright and trade secret violations based on alleged use of competitor's meta-tags and meta-descriptions. Health Net v. Matthias Rath, Inc., Dr. Matthias Rath, No. CV-99-1122 (C.D. Ca 2000). Successful defense of trademark infringement and dilution action brought by California HMO against Dr. Matthias Rath and his company. 11 RETRACTIONS PUBLICATIONS, SPEECHES AND LECTURES 33023913.4 Citizen Watch Co. of America, Inc. v. Time Products Corp., No. 98-2276- CIV-MORENO (S.D. Fla. 1999). Successful defense of trademark action against alleged gray market importers of genuine Citizen watches allegedly not authorized for sale in the United States. Givenchy S.A. v. Carlos Martinez-Christensen, No. 97-1039-CIV- GRAHAM (S.D. Fla. 1997). Successful trademark infringement action for Givenchy, halting sale of unauthorized but "genuine" timepieces in U.S. Florida Software Services, Inc. v. Basis Information, No. 93-CV-71-ACC (M.D. Fla. 1994). Successful defense of Flserv in software licensing dispute involving trade secret, intellectual property, and copyright issues. Florida Software Services, Inc. v. Citicorp Information Services, Inc., (Fla. Cir. Ct. 1991). Successful defense of CIR in Bank accounting software licensing dispute, raising sophisticated intellectual property issues; mini- trial for several days on preliminary injunction. Although Mr. Ovelmen generally defends libel suits, for a number of clients he has agreed to seek retractions or corrections from news media which have defamed them. Mr. Ovelmen has been able to obtain satisfactory corrections, retractions, or apologies from numerous media for corporations, public officials, public figures, and private persons. For example, Mr. Ovelmen obtained both a retraction and a letter of apology from Money magazine for The Hartford for an article defaming the Company's 457 plans. Mr. Ovelmen has also successfully represented Pep Boys, Kendall Coffey, and Thomas Kramer in defamation claims against media. Mr. Ovelmen often speaks and writes on libel and appellate law, and press and intellectual property issues. His most common fora are the following: 12 33023913.4 Libel Defens'e Resource Center. Mr. Ovelmen has been the principal author for more than 20 years of the annotated summary analysis of Florida libel precedent published each year in L.D.R. c.' s 50 state libel law survey. He is an L.D.R. C. lecturer on libel topics. The Fourth Annual Conference on Litigating Regulatory Takings Claims. Mr. Ovelmen spoke at the Georgetown University Law Center in the fall of 2002 at the national conference which explored takings and related constitutional challenges to land use, environmental and other regulatory programs. Mr. Ovelmen's monogram publication for the conference analyzed Florida's recently enacted Bert J. Harris Private Property Protection Act. The Practicing Law Institute. For more than twenty-five years Mr. Ovelmen has been the principal author of the annual survey article on cases addressing the right of access to government information published by PLI in its Communications Law Handbook. For three years he co-authored the PLI article on Newsrack Litigation. He has been a PLI faculty member and panelist for more than twenty years. The American Bar Association. Mr. Ovelmen recently authored the Chapter on "Judicial Review of Agency Decisions with Respect to FOI Requests" for the FOIA Monograph produced by the ABA Central and East European Law Initiative. Mr. Ovelmen has twice been a featured speaker for the litigation section of the ABA, at the annual conventions in London and Atlanta, lecturing on American and English libel suits and psycho-linguistic studies of jury instructions in libel trials. He has spoken on panels for the ABA Forum Committee on Communications Law, addressing the issues of "chill" on freedom of expression caused by libel suits and press responses to retraction demands and other complaints. 13 ACADEMIC 33023913.4 The Florida Bar. Mr. Ovelmen has been a featured speaker, panelist and moderator at the Florida Bar's annual Media Law Conference on more than a dozen occasions. He has spoken about presslbar cross-perceptions, access to legal proceedings, press coverage of celebrated cases, subpoenas on reporters, public records and libel; written articles on access, subpoenas, and privacy for the Bar's annual publication: The Reporter's Handbook, and has been a featured speaker on software franchise litigation to patent bar of the Southern District of Florida. Mr. Ovelrrien created and participates in the seminar on the First Amendment Decisions of the United States Supreme Court that are handed down in the current Term that is presented each year at the Florida Bar Annual Convention. This is the longest running Florida Bar Seminar, having been offered continuously for a quarter of a century. The Florida Press Association. Mr. Ovelmen has been a frequent lecturer on access rights or privacy at the Florida Press Association's annual convention. Intellectual Property. Mr. Ovelmen has given numerous speeches on intellectual property issues including misappropriation, immunity under the Communications Decency Act, select patent and trademark litigation issues, the relationship between the First Amendment and Copyright, and other related subjects. Expect Focus. Mr. Ovelmen contributes articles to the Firm's newsletter from time to time. University of Miami School of Law, Former Adjunct Professor. Mr. Ovelmen most recently taught constitutional litigation at the law school. In other years he taught copyright law, intellectual property, legal writing, and First Amendment law. Lectured on appellate advocacy and judged the moot court finals. 14 EDUCATIONAL BACKGROUND PERSONAL rev. 10116 Family Status: DatelPlace of Birth: 33023913.4 University of Miami, College of Liberal Arts, Former Lecturer. During past years, when not teaching at the law school, Mr. Ovelmen several times taught Media Law to undergraduate students majoring in journalism and political science. Yale Law School, Class of 1978. Research Assistant at Yale Law School and a Teaching Assistant in philosophy and law at Yale College. Participated in the Faculty/Student Legal Theory Workshop. Fields of interest were legal philosophy, the First Amendment, and antitrust. Butler University, Class of 1974. Attended under a full academic scholarship and was President of the Student Body, Vice President of the Student Assembly, a three-time recipient of the Outstanding Student Award; recipient of the Outstanding Freshman Award; Chairman and Founder, Butler Civil Liberties Union; and graduated with honors. , LaPorte High School, LaPorte Indiana, Class of 1970. Graduated fifth in a class of 570, the top male student. Participated in student government and intramural football, softball and basketball. Has been married for thirty-five years to Nancy; and has a thirty-one year old son, James, and a twenty-five old son, Peter. Born, 1952 in LaPorte, Indiana (near Notre Dame at South Bend). Raised in LaPorte, a small, middle-class town of 23,000, until entering Butler University at Indianapolis in 1970. 15