Transcript :

Etan Mark | 00:00:01:09 – 00:00:34:21

00:01:22:27 – 00:01:45:23
Etan
So Jordan and I had the pleasure of working on a pretty significant case involving the city of Miami Beach and Clark Construction. It was fun, it was. Now, you’ve got a lot of experience working with different municipalities and suing municipalities, and obviously you have experience working for Broward County as well, right?

00:03:19:19 – 00:03:47:12
Etan
So, um, so you and I have the pleasure of working on that case together. The Clark construction case is a pretty significant matter involving city, Miami Beach. Um, I thought one of the, there were a number pretty interesting components to that case. One was, I think the transition to a private judge. I think it was unusual and obviously general speaking, dealing with, uh, cases against municipalities and local government.

00:03:47:26 – 00:03:48:06
Etan
Uh.

00:03:48:21 – 00:04:08:16
Jordan
Yeah. I mean, there were a lot of specific, specific issues we dealt with that were unique to, to suing a local government. Like we have that prompt payment issue. There is an issue where a client wasn’t being paid in a timely fashion for work that the city acknowledged that they did. And that became a big point of contention during the case.

00:04:09:18 – 00:04:30:08
Jordan
So, yeah, I mean, the thing that’s interesting when you’re dealing with a city or any government is a lot of people don’t realize there are specific rules that governments have to follow, that private companies necessarily don’t have to. So, you know, if you’re able to establish that they’re not following those rules, it could really give you some significant leverage in litigation.

00:04:30:18 – 00:04:51:09
Etan
And that’s exactly what happened in in the court case. There was a statute that the city was not following or we believe that the city was following it. And it was not a statute that I had personal familiarity with. I didn’t even know that the statute existed, frankly. But Jordan’s got so much experience in local government work. And as a.

00:04:51:09 – 00:04:51:25
Etan
Former.

00:04:52:09 – 00:05:11:02
Etan
Attorney for Broward County, he sort of had this level of familiarity that I just did not have, and he identified the issue. We brought a motion and and we were successful in prosecuting him. And I think I think that that put a lot of pressure on the city to ultimately drive a pretty successful resolution. And I guess.

00:05:11:11 – 00:05:35:15
Jordan
Absolutely. Another thing about the case that was really interesting is, you know, it was one lawsuit, but it was really a bunch of smaller lawsuits consolidated into one. Our client was in addition to their own claims against the city. They were passing through a bunch of claims that their subcontractors had against the city. And it was a contractual procedure that was in place that was really the only way these subcontractors could bring their claims against the city.

00:05:35:15 – 00:05:44:18
Jordan
So it really was like a bunch of consolidated cases and one and each of those mini cases in and of themselves were pretty significant. Yeah.

00:05:44:19 – 00:06:07:17
Etan
Yeah. I mean that case that was at its core, that was a very complicated construction case. It involved the renovation of the city, Miami Beach Convention Center. It was a, well, $600 million contract. And so there was something something in that range. It’s a beautiful facility. Clark did an amazing job, and they always do an amazing job. And the city.

00:06:08:05 – 00:06:39:25
Etan
And Clark, on to a dispute over amounts that were owing. And it was like Jordan indicated sort of a 12 or 13 little construction cases within a very large construction case. It was just a fascinating case. And it was also one of those cases where I really enjoyed the team, not just our team, but I thought we were serving as local counsel, really, for a well-regarded Virginia law firm.

00:06:39:25 – 00:07:01:06
Etan
And we learned a lot from them and sort of their construction expertize. And that was a really nice we had really good synergies there and frankly, even opposing counsel I thought were just very professional, high quality people. And it’s just nice when you work on cases and everybody’s fighting each other hard and trying to do right by their client.

00:07:01:06 – 00:07:05:15
Etan
But it’s incredible how effective you can be without being a jerk.

00:07:05:20 – 00:07:06:01
Etan
Yeah.

00:07:06:16 – 00:07:28:13
Etan
And that was nice. And also that case was unusual because we we made a decision pretty early on to move the case to a private judge. Know a lot of people don’t know this, but Florida has this mechanism where any lawsuits filed, if the parties agree, you can literally take the case out of the courts and hire a judge to try the case for you.

00:07:28:23 – 00:07:38:06
Etan
And it’ll be just as binding as any court and just as precedential, really, as any as any other court. So that was that was an interesting twist on that case as well.

00:07:38:06 – 00:07:55:19
Jordan
Yeah. And especially for such a big case with so many issues, you know, because he was our private judge for it. He he remembered the issues a lot of times, if you don’t have the benefit of that type of situation, every time you’re getting in front of the judge, you’re kind of explaining a lot of the same issues.

00:07:55:19 – 00:08:04:02
Jordan
But here you’re really building on a foundation. So by the time we got to trial, he was already fully up to speed on a lot of the issues that we were dealing with in the case and really understood it.

00:08:04:13 – 00:08:34:07
Etan
Right. I mean, we were anticipating this case was going to be, well, like a week non-jury trial, maybe longer and maybe longer in complex business division in Miami-Dade Circuit Court in the possibility of us getting eight consecutive weeks in that courthouse in all the way during COVID as well, was almost going to be a possible. And it was just we just made the decision early on that it was in our client’s best interest to get this in front of a private judge.

00:08:34:07 – 00:08:49:09
Etan
Even though I thought that the trial judge was a fantastic. But to get us in front of a private judge that we knew was going be able to push the case quickly and give us the certainty and finality that we wanted in a much faster over a much faster timeframe.

00:08:49:13 – 00:08:53:05
Etan
Yeah, sure. Something that’s anything worth talking about.

00:08:53:05 – 00:09:18:13
Etan
Yeah. No, I think you’re right and then right. I mean, I think that as we’re talking about I mean, you know, this was also this case was filed, I think in December of 2020, 19, 2019, December of 2019. And we tried it in November of 21. Right, October. August. All right. So so we filed the case in December of 20 of 2019.

00:09:18:21 – 00:09:31:14
Etan
We tried it in August of 2021. And that’s a fast turnaround for a case that involves I think we took more than 60 depositions in that case. I think we had how many experts in that case?

00:09:31:14 – 00:09:34:06
Jordan
I think each side probably had about 15 on average.

00:09:34:06 – 00:10:01:27
Etan
Yeah, we had two. So we had, you know, dozens of experts and it was a massive, massive pull to get us to where we were. Millions of documents were produced. It was it was a big case. And we did. And we tried it over Zoom. We tried it with zoom witnesses and Zoom exhibits and Zoom presentations. And it was it was a new experience for us, but it was a lot of fun.

00:10:03:05 – 00:10:11:09
Etan
Probably. We’re talking about sovereign immunity and touching on that. Can you riff on that a little bit? I’ll I’ll Phoebe, what.

00:10:11:09 – 00:10:11:19
Etan
Kind.

00:10:11:20 – 00:10:12:23
Etan
Of the offer is not.

00:10:12:23 – 00:10:13:21
Jordan
In relation to them. No.

00:10:14:10 – 00:10:47:18
Etan
I guess just generally so one of the I think a lot of folks aren’t aware of this concept of sovereign immunity and how that plays into litigation against government entities. People think that you can just sue government entity for billions of dollars. Sky’s the limit. But that’s not really how the law is set up. Do you want to talk a little bit about sort of sovereign immunity and how that sometimes plays into strategic thinking when it comes to suing municipalities or other local governments?

00:10:47:18 – 00:11:15:28
Jordan
Yeah, sure. So, I mean, yeah, the default rule is that you you can’t sue a public entity, whether it’s a local government, the municipality or even the state. You generally find some exception to that rule. So, you know, one of the things that we’ve been doing a lot with recently is constitutional violations. For something like that, you normally will have some type of mechanism to bring a lawsuit in other areas.

00:11:15:28 – 00:11:44:01
Jordan
If you’re in a contract with the government, there’s a long line of cases holding that by entering into a contract. The sovereign, which I believe or government you’re dealing with, has essentially waived sovereign immunity with respect to that contract. So if there’s a breach of that contract or some type of issue resulting from that contract, the aggrieved party has three course bringing a lawsuit and then you really do try to think of anything else.

00:11:44:01 – 00:11:44:28
Jordan
We really deal with it.

00:11:45:20 – 00:11:46:15
Etan
No. No.

00:11:48:27 – 00:12:43:24
Etan
One, we spend a few minutes talking about the case, too. I think it’s also worth chatting about so after well, we were we were approached not too long ago to represent a group of businesses on the road on Miami Beach that were accused of. Well, that let me start we’re going to actually the city of Miami Beach passed an ordinance that basically recently passed an ordinance that said that if you have past violations of this, if you are operating a restaurant on Lincoln Road and you’ve got outdoor seating and you have violations in the past for example, noise violations or overflow garbage or other sort of issues that you have that they are allowed to

00:12:43:24 – 00:13:07:12
Etan
revoke your ability to serve food and to operate as a restaurant on Lincoln Road. So that ordnance was passed. And then what the city was doing is they were retroactively applying that ordinance to businesses and saying, oh, hey, you know, a year ago you got these violations so you no longer you can no longer operate business as a sidewalk cafe.

00:13:08:11 – 00:13:40:11
Etan
Well, as anyone who’s been to Lincoln or knows, if you can operate a restaurant as a sidewalk cafe, you’re screwed like you’re out of business. Nobody’s coming to your restaurant, you got to shut it down. And rent is not cheap. By making road. So after the city passes ordinance and informed a couple of restaurants on Lincoln Road that they were going to be shut down and that they had two weeks to to close up shop, we kind of jumped in on an emergency basis to help the clients, and I thought that was a pretty neat experience.

00:13:40:11 – 00:13:41:20
Etan
So what happened next year?

00:13:42:00 – 00:13:42:12
Etan
Well.

00:13:43:02 – 00:14:08:12
Jordan
It was an interesting case because from the outside it might seem like fairly routine, just, you know, government action. But the reality was it really would have had a devastating impact on our clients. And, you know, when it comes down to it, there certain fundamental principles and rules that a municipality has to follow when passing laws, particularly laws that will impact the livelihood of people who are residing or doing business within the city.

00:14:09:09 – 00:14:28:19
Jordan
So we essentially filed a an emergency motion for injunctive relief, seeking to stop enforcement of this new rule. We got in front of the judge as quickly as we could and be successful in getting a temporary injunction, stopping that law from going into effect and cases. And it’s still going on.

00:14:28:22 – 00:14:54:12
Etan
Yeah, I mean, because one of those things is due process. I mean, we’ve all heard about due process. We all kind of know what the process is. We’ve seen My Cousin Vinny, we get it. But when the city one of the provisions in the statute that we identified as being unconstitutional was this provision that said that the city manager had the right and basically the total discretion to grant or deny these sidewalk cafe permits.

00:14:54:29 – 00:15:22:16
Etan
And although in this particular case, we have a city manager who happens to be a lovely person and and I have no doubt that she would have exercised her discretion appropriately. The mere fact that she has that discretion is enough to make it on constitutional, because the next city manager may not like, you know, Brazilian steakhouses or may not like paella.

00:15:22:16 – 00:15:26:20
Etan
And that would not be a fair grounds to shut down a restaurant.

00:15:27:11 – 00:15:42:03
Jordan
And even with the best intentions, without firm guidelines in place for how you’re supposed to treat people and making sure that everyone is treated equally, just, you know, inadvertently, you can have different applicants. We were looking for these licenses being treated differently on a case by case basis.

00:15:42:08 – 00:16:04:15
Etan
Yeah. So it’s kind of one of these areas of the law it’s dealing with core constitutional issues is not necessarily something we do every day here, but those cases do come across our desk and when they do, it’s pretty, it’s pretty funny. That was that was a really fun case. But and it was great because we got the injunction, the restaurants were able to continue to operate and the city is now in the process of appealing off.

00:16:04:20 – 00:16:08:21
Etan
So it’s been a real good, real good result for the clients. Yeah, it’s a good job.

00:16:09:00 – 00:16:11:16
Jordan
Thanks. I think it was mostly my doing.

00:16:11:16 – 00:16:18:03
Etan
I did a good job, I argue, to be easier to get done.

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