Judge Huck Reversed Over "Love Boat" Jurisdictional Ruling!

Did you know Judge Huck is presiding over a case involving the "Love Boat" of 70s TV fame?

Not only that, like most relics of the 70s including possibly Lauren Tewes and Ted McGinley (the ship's photographer!), it is in "deteriorating and defective condition."

Ouch.

Thanks for spoiling another treasured childhood memory.

You May Want to Avoid Swimming at North Beach.

The good ole' Army Corps of Engineers, recently lambasted in Harry Shearer's excellent documentary "The Big Uneasy," comes under fire by Judge Huck for negligently depositing large rocks along the North Shore beaches, causing at least one very severe injury:

The Court concludes that the government breached its duty to Downs because the Corps allowed rocks, up to a basketball in size, to be placed in the beach fill on Phase 2 and knowingly allowed at least some of these rocks to become exposed in the surf zone between 72nd and 73rd Streets. The Court also finds that the government’s breach of its duty was a proximate cause of the injuries that Downs sustained when he dove diagonally into the ocean and hit his head on a rock. The injuries sustained by Downs were a foreseeable result of the government’s negligence.  See Crislip v. Holland, 401 So. 2d 1115, 1117 (Fla. 4th DCA 1981) (“In order for injuries to be a foreseeable consequence of a negligent act, it is not necessary that the initial tortfeasor be able to foresee the exact nature and extent of the injuries or the precise manner in which the injuries occur. [A]ll that is necessary . . . is that the tortfeasor be able to foresee that some injury will likely result in some manner as a consequence of his negligent acts.”) The Court also concludes, as discussed above, that Downs’, Miami-Dade County’s, the State of Florida’s, and the City of Miami Beach’s negligence each contributed to Downs accident and resulting injuries.

Knowingly allowing basketball-sized rocks to be placed along the surf line on Miami Beach?

No doubt the Greater Miami Convention & Visitors Bureau will somehow turn this into a positive -- come visit Miami Beach get a free kettle bell/beach rock workout!

Judge Huck and the "Love Shack" (End of Headline).

As a famous unicyclist once said,

There are known knowns. These are things we know that we know. There are known unknowns. That is to say, there are things that we know we don't know. But there are also unknown unknowns. There are things we don't know we don't know.

Here are the things we know:

1.  Judge Huck went up to the 11th Circuit to sit by designation.

2.  Georgia is in fact the home of the B-52s.

3.  Judge Huck sat on a panel that found itself in a Love Shack.

That's all I'm saying.....

(God it's slow around here -- see what I have to work with?)

"The Situation" Sues His Dad (With Richard Wolfe's Help)!

The Situation Dad Complaint


Courtesy of our friends at Riptide, it appears that Jersey Shore's "The Situation" has sued his polite, exceedingly charming father in the 305 and has hired our own Richard C. Wolfe to prosecute dear old Daddy.

The case is before Judge Huck.

Can you imagine the father appearing before Judge Huck pro se?

Here's a taste of what Judge Huck can expect:

11th Circuit Affirms Guts of YoPlus Class Cert Decision.

Judge Huck's Yoplus class certification decision was closely watched, and no doubt gave some indigestion.

Insert groan here.

Yet the 11th, via Judge Fay, has affirmed its reasoning and Judge Huck's "scholarly" analysis, though it was kicked back to remove any reliance element from the class definition:

The district court’s analysis in its Order on Motion for Class Certification is sound and in accord with federal and state law. The reasoning reflected therein is well within the parameters of Rule 23’s requirements for certification of a class. And, if the definition of the class had been in accord with the legal analysis, we would have readily affirmed.1 However, at the end of the district court’s Order, it defined the class in a manner which seems to conflict with its earlier sound analysis. In its analysis, the district court repeatedly stated that a plaintiff need not prove reliance on the allegedly false statement to recover damages under FDUTPA, but rather a plaintiff must simply prove that an objective reasonable person would have been deceived. And, this is correct. Notwithstanding this analysis, the district court went on to define the class as “all persons who purchased Yo-Plus in the State of Florida to obtain its claimed digestive health benefit.” Order at 21 (emphasis added). The class definition limits the class to those who purchased YoPlus “to obtain its claimed digestive health benefit,” which takes into account individual reliance on the digestive health claims. Had the district court defined the class in a manner which did not take individual reliance into account, such would be consistent with the district court’s earlier analysis. Thus, we vacate the Order certifying the class and remand to the district court for further consideration.

Seriously, what kind of maroon believes that "magic yogurt" somehow improves your digestive health?

(Wait a second, people are taking Donald Trump's run for the Presidency seriously.  On second thought, don't answer that.)

SFL Friday -- Judge Huck Rules Against WSVN Over Nielson Methodology Change.

It's Friday and a three day weekend honoring that warmonger Martin Luther King, so perhaps it's fitting that Judge Huck has ruled today on a very interesting antitrust case involving whether Nielson properly captures minority and/or poor viewership (don't tell anyone, but I hear there's a lot of overlap).

Judge Huck in his Order granting partial summary judgment gives a nice summary of the claims brought by WSVN's parent company Sunbeam, which deal with a change in how viewership is measured:

This case arises out of controversy surrounding Nielsen’s October 2008 implementation of its Local People Meter methodology, a People Meter method replacing the Meter-Diary method in the Miami-Fort Lauderdale television market. Id. ¶ 3.  Sunbeam alleges that Nielsen implemented Local People Meters despite its knowledge that certain demographic groups—in particular, minorities—do not use the technology properly, leading to inaccurate ratings. Id. ¶ 57. Sunbeam alleges that this practice has drawn the criticism of customers, minority groups, advertisers, and congressional leaders, and contravenes an industry association’s recommendations. Id. Sunbeam further alleges that this flaw can be corrected by modifying survey methodology and statistics. Id. ¶ 82. The consequences of the change to the Local People Meter methodology have been profound: a dramatic reduction in WSVN’s ratings—in some cases by as much as fifty percent—resulting in lost advertising revenue of $1 million per month and a $100 million decrease in WSVN’s going-concern value. Id. ¶ 10.

Sunbeam contends that its injury is the result not merely of a defective ratings product, but of antitrust violations. Sunbeam alleges that Nielsen engaged in the following exclusionary and monopolistic conduct: (1) mandating contract provisions that prevent competitors from entering the market; (2) undertaking transactions and business strategies intended to neutralize actual or potential competitors; (3) imposing punitive pricing on customers who resist its practices; (4) utilizing defective ratings data to attract and retain new cable customers, thereby foreclosing a potential avenue of competitor entry; (5) imposing on its customers onerous contract provisions that, inter alia, leave them with no effective contractual recourse in the event of breach; and (6) charging noncompetitive prices for its rating services. Id. ¶ 13.

Hmm, this strikes me as a very difficult antitrust claim to establish..

Who are Nielson's competitors, for example?

The Judge finds all sorts of problems, including the aforesaid lack of competition as well as causation, and focuses on the zero-sum nature of TV viewership ratings:

For years, Sunbeam was pleased with the status quo of the Meter-Diary method, which even Sunbeam admits has flaws, but other stations, including cable stations, were not. Now some of those other stations may be satisfied, and Sunbeam is not. Were Nielsen to be compelled to revert to the Meter-Diary method or institute a new method entirely, it would likely face new complaints and possibly new antitrust actions from other stations, cable or broadcast, dissatisfied with their decreased allocation. This precarious position does not mean that Nielsen should be immune from some suit. The law does require, however, that Sunbeam present a triable issue of damages and, as to lost ad revenue and going-concern value, it cannot do so without undue speculation.

The Court did defer on the state court counts and permitted additional briefing, so all is not lost yet (actually, it probably is).

Boy, reading that thing was exhausting -- I'm cutting out for some well-deserved windsurfing but will try to check in tomorrow.

Have a great weekend!