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DAILY BUSINESS REVIEW

by Raychel Leanand Charles Toutant

As more and more litigation emerg-es over an off-patent drug with a pur-ported ability to treat COVID-19, judges are increasingly finding themselves in a bind: forced to ponder the merits of unapproved treatment and essentially second-guessing physicians whose pa-tients don’t get what they want.

That’s generated concern among health-care lawyers, some of whom see growing requests for the anti-parasite drug Ivermectin as a Hail Mary attempt to keep loved ones alive.

Courts across the country have or-dered hospitals to allow COVID-19 patients to undergo treatment with Ivermectin, overruling protests and ar-guments over standards of care that exclude the drug. Orders have been issued mandating Ivermectin treat-ment, even though the Food and Drug

Miami attorney Stuart Ratzan said he finds “a lot of mistrust in all directions right now as it re-lates to medicine and science,” but he still doesn’t think future courts will be filled with litigation over hospital treatment protocols.

Ivermectin Litigation is Forcing Judges to Make Medical Decisions for COVID-19 Patients

SEE IVERMECTIN, PAGE A2

by Michael A. Mora

A Fort Lauderdale insurance attorney had a defense win in an aviation case that he said exemplifies a recent trend in which insurance defense lawyers are in-creasingly contesting the application of warranties in litigation due to plaintiffs failing to comply with the conditions for application of the warranties.

Rory E. Jurman, a partner at Hinshaw & Culbertson and lead attorney for Starstone National Insurance, landed an order granting summary judgment in favor of the defendants in a dispute brought by Neubert Aero Corp. involv-ing an unqualified pilot that claimed damages from an emergency landing.

“The insurance industry relies heav-ily on warranties and plaintiff attorneys are trying to throw them out,” Jurman said in an email. “Issues include wheth-er or not federal or state law applies. But there is Florida case law about aviation and maritime insurance policies.”

The dispute dates to an off-field emergency landing of an aircraft carry-ing Neubert Aero President Timothy W. Neubert, the sole occupant and pilot of the airplane, according to court docu-ments.

Neubert’s pilot certificate was for “airplane single-engine land, instrument

by Michael A. Mora

The Miami-Dade County Courthouse is back!

Miami-Dade Chief Circuit Judge Nushin G. Sayfie said the courthouse at 73 W. Flagler St. will reopen to the public on Dec. 6.

“Our first priority was and continues to be the safety of all who work at and vis-it the Miami-Dade County Courthouse,” Sayfie said Wednesday. “Based upon the assurances we have received from the county that the building is safe, we are happy to be able to reopen the Miami-Dade County Courthouse and resume normal operations there beginning Dec. 6.”

Sayfie closed the courthouse in July due to a report that recommended par-tial closure and further analysis of the building due to structural safety con-cerns. And in the press release, Sayfie noted that the basement columns were particularly concerning.

As a result of the closure, court opera-tions, such as hearings and trials, contin-ued in alternative locations. Meanwhile, Miami-Dade County hired engineers

Broward Attorney Lands Defense Verdict in Case That Follows Insurance Litigation Trend

Historic Miami-Dade County Courthouse to Reopen: What Lawyers Need to Know

“The insurance industry relies heavily on war-ranties and plaintiff attorneys are trying to throw them out,” Rory E. Jurman, a partner at Hinshaw & Culbertson, said.

by Dan Roe

New York law firms continue to fol-low their clients to South Florida.

The latest is Falcon Rappaport & Berkman, a business law firm with Manhattan and Long Island offices that recently announced a Boca Raton loca-tion with local trust and estates lawyer Ian Horowitz, who merged his practice with the New York firm.

In an interview, managing part-ner Kenneth Falcon said he’d known Horowitz while the attorneys were earn-ing LL.M.s at Georgetown, and frequently deferred to Horowitz for Florida trusts and estates, tax, and real estate matters.

“We’ve been working together more and more, as our clients are moving to Florida or having second homes in Florida,” said Falcon. “We decided we’d formalize the arrangement and bring Ian on board.”

Horowitz studied law at the University of Florida before earning his Master of Laws at the Georgetown University Law Center. His office on Glades Road will serve as Falcon Rappaport’s, said Falcon.

Falcon added that the Boca Raton location has an upside for the emerg-ing technology, intellectual property, and cryptocurrency practice of partner

New York Business Law Firm Opens in Boca Raton

SEE BOCA, PAGE A2

SEE COURTHOUSE, PAGE A6SEE INSURANCE, PAGE A6

MIAMI-DADE

VOL. 96, NO. 106

OFFICIAL COURT NEWSPAPER OF SOUTH FLORIDA

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Administration, the Centers for Disease Control and Prevention, the World Health Organization and the American Medical Association have warned against using the drug to treat COVID-19.

That’s concerning, according to Miami attorney Stuart Ratzan of Ratzan Weissman & Boldt, who handles medical malpractice cases.

“It’s hard to understand how a judge could supplant his own politics or view of medicine and science for that of actual medical doctors and scientists,” Ratzan said. “You shouldn’t be compelled to be-come a quack or a snake oil salesman by a judge who’s got no training or experi-ence in the field. Unless or until the sci-ence or the medicine says something is the standard of care, based on evidence, you should not be able to go to a judge and have the judge exchange his own view or her own view of what is medi-cally sound for that of people that are trained to do it.”

Ratzan said he finds “a lot of mistrust in all directions right now as it relates to medicine and science,” but he still doesn’t think future courts will be filled with litigation over hospital treatment protocols.

“I don’t see it because there’s rational thinking in the law,” Ratzan said. “I don’t think the law will create a long-term opportunity for this kind of nonsense. I think it’s sensationalist for now but I don’t think it’s a long-term problem.”

Equally skeptical is personal injury litigator Aaron Davis, co-founder of Davis Goldman in Miami, who said, “I don’t believe that a case is ever worth pursuing under a theory of, ‘You could have just tried something else and chose not to.’”

“There’s a reason why standards of care are developed and why certain agencies approve medication, and it’s because they go through a series of test-ing and safety profiles,” Davis said.

And while there might some basis for providing Ivermectin without ticking every necessary box, Davis noted that without that requisite safety profile “you might as well just spin the wheel of any medication and try it out.”

“That’s not the way that we treat peo-ple in this country,” Davis said.

Studies to evaluate Ivermectin as a treatment for COVID-19 have been in-consistent, inconclusive and too small to be considered reliable, according to some medical authorities.

WHAT DOES FLORIDA LAW SAY?Of particular relevance to Ivermectin

litigation is Florida Statute Chapter 499.0295, known as the Right to Try Act. It lists detailed criteria for the use of experimental treatments for patients with terminal conditions. But its word-ing is somewhat broad, leaving plenty of room for interpretation—and litigation.

Under the statute, Florida patients have a right to try experimental medi-cation if they’ve considered all approved treatments, provided written informed consent and received documentation from their doctor explaining that they’ve met requirements. The legislation also notes that it doesn’t create a private cause of action against manufacturers or anyone involved in the patient’s care if the investigational drug results in any harm.

Florida probate statutes also allow loved ones to be appointed decision-makers, meaning they can make certain requests on a patient’s behalf.

That means it’d be wise to have fami-lies seeking Ivermectin treatment sign a document absolving hospitals, doctors

and others involved in the patient’s care of any responsibility. As prospective de-fendants, hospitals and doctors should also be poised to respond quickly and seek an emergency stay or order deny-ing injunctive relief, according to health-care lawyers.

A DANGEROUS PRECEDENT?In grappling with such a novel issue,

judges have invariably disagreed over how to handle it.

In Ohio, one trial judge issued a temporary order urging the University of Cincinnati West Chester Hospital to administer Ivermectin to COVID-19 pa-tient Jeffrey Smith. But that was swiftly reversed by Hamilton County Common Pleas Judge Michael Oster Jr., who said “Public policy should not and does not support allowing physicians to try ‘any’ type of treatment on human beings.”

Complicating matters is the fact that litigation doesn’t always lend itself to swift action. That’s meant some patients with COVID-19 have died before their cases could be resolved.

That’s what happened at a hospi-tal in Louisiana, which was ordered to treat 64-year-old Charlotte Ratley with Ivermectin. She died without receiving it, less than 24 hours after Judge John Keller issued the ruling.

And on Friday, a Palm Beach County teacher died after her husband’s lawsuit failed to force doctors to treat her with Ivermectin. Palm Beach Circuit Judge James Nutt threw out the lawsuit, find-ing it set a dangerous precedent by al-lowing judges to undermine doctors’ decisions.

The biggest obstacle for plaintiffs seek-ing Ivermectin treatment, in Ratzan’s view, is demonstrating that it’s a safe and effective way to treat COVID-19 and that the standard of care warrants it.

Ratzan said that means the best thing hospitals and doctors can do to protect themselves is to simply “continue prac-ticing evidence-based medicine.”

BIG PERSONALITIESFox News personality Tucker Carlson

and comedian Joe Rogan have been among those promoting Ivermectin as a treatment for COVID-19.

But a West Seneca, New York, com-mercial litigator named Ralph Lorigo has had a big role in taking the Ivermectin battle to court.

Lorigo has brought about 40 motions in 25 states seeking to compel hospitals to allow COVID-19 patients to receive treatment with Ivermectin, and he won in “the great majority” of cases, he said.

In one such case, an Illinois judge ruled Nov. 8 that a hospital must permit a 71-year-old COVID-19 patient to be treated with Ivermectin, despite the hos-pital’s protests that the drug is not part of its standard of care.

The judge, Paul Fullerton, cited the relatively minor side effects of adminis-tering Ivermectin and noted that the pa-tient is “basically on his death bed.”

The patient’s family arranged for a doctor who doesn’t have admitting privileges at the defendant hospital to come in for the sole purpose of pre-scribing and administering Ivermectin to the patient. The judge also ordered that the patient’s daughter release the hospital from liability before the drug can be administered.

CALLS FROM ACROSS THE COUNTRYLorigo said he had no experience in

health care law when he got a call earlier this year from a longtime client whose family member was hospitalized with COVID-19.

The hospital refused the family’s re-quest to be treated with Ivermectin, but Lorigo obtained a court order allowing it. The case was written up in the Buffalo News, and soon Lorigo began getting calls from across the country from oth-ers seeking Ivermectin treatment for hospitalized relatives.

Lorigo, for his part, is firmly convinced that Ivermectin is an effective treatment for COVID-19. Many of his clients turn to Ivermectin after other types of treatment fail to show results. He doesn’t dispute a hospital’s right to establish its own stan-dards of care.

“It’s not like when you go into a res-taurant and you want chicken, and they don’t have chicken, so you go to the next restaurant. You go into the hospital, and you can’t leave because you’re on a ven-tilator,” he said.

“I believe hospitals do have the right to set their standard of care but if that standard of care is not working, I be-lieve hospitals have the duty and the obligation to give you alternatives. If you can have somebody prescribe a reasonable alternative and you have informed consent, you’re entitled to that,” Lorigo said.

Lorigo said he believes the reason Ivermectin has not been embraced as a treatment for COVID-19 lies in the domi-nant role of drug companies in the health-care industry. He posited that companies producing vaccines for COVID-19 have sought to discredit Ivermectin because if it were seen as a viable treatment, the vaccines may not have been able to gain approval on an emergency basis from the Food and Drug Administration. He alleged that the FDA and CDC are “gov-erned by Big Pharma,” and that hospi-tals make a significant profit from treat-ing COVID patients with remdesivir, a drug that is commonly prescribed, and more expensive.

Raychel Lean is ALM’s Florida bureau chief, overseeing the Daily Business Review. Email her at rlean@alm.com or follow her on Twitter via @raychellean.

Moish Peltz, who primarily resides in New York but may travel to South Florida to meet clients in those sectors.

“Demand is significant because there aren’t a lot of attorneys with full-service law firm capabilities in the space outside of Big Law,” Falcon said. “Our rates are substantially more affordable for a proj-ect that’s jsut getting off the ground.”

Falcon Rappaport & Berkman’s opening is the latest in a chain of New York law firm office launches and part-ner laterals in South Florida.

Last month, the New York-based health care law firm Garfunkel Wild

opened an office in Fort Lauderdale with the hiring of former hospital system as-sociate GC Amanda Bhikhari following a “client migration to Florida.”

The same month, Mound Cotton Wollan & Greengrass added commer-cial litigator Wendy Stein Fulton from Kiernan Trebach.

Earlier in the year, Mineola, New York law firm Meltzer, Lippe, Goldstein & Breitstone opened a Boca Raton of-fice with former Gunster partner Seth Kaplan and former Bilzin Sumberg Baena Price & Axelrod associate Jennifer Einersen.

Dan Roe covers the business of law, focus-ing on Florida-based and national law firms. Contact him at droe@alm.com. On Twitter: @dan_roe_.

FROM PAGE A1

FROM PAGE A1

IVERMECTIN

BOCA

The FMU Legal Scholars Pipeline Program is designed

to inspire students to consider careers in the legal

profession. Through collaboration with regional high

schools and other organizations, the program will create

a pipeline of talented students who are college-ready and

prepared to successfully pursue undergraduate degrees

in Law and Government from Florida Memorial University

and ultimately enter law school.

This week the FMU Legal Scholars Pipeline Program wishes to thank:

TRAILBLAZERwww.trailblazerlaw.com

A2 dailybusinessreview.com FRIDAY, NOVEMBER 19, 2021 DAILY BUSINESS REVIEW

FLORIDA LEGAL REVIEW

by Curt Anderson

Construction of a luxury building next door triggered the collapse of an already frag-ile Florida condominium that killed 98 people in June, ac-cording to a new lawsuit.

The lawsuit, filed late Tuesday on behalf of Champlain Towers South victims and family mem-bers, contends that work on the adjacent Eighty Seven Park tower damaged and destabi-lized a building in dire need of major structural repair.

Champlain Towers, the law-suit claims, “was an older build-ing in need of routine repairs and maintenance, but it was not until excavation and construction be-gan on the luxury high-rise con-dominium project next door” that the building became unsafe.

“The collapse was entirely preventable,” the lawsuit says.

Champlain Towers was in the midst of its 40-year struc-

tural review when it collapsed without warning in the early morning hours of June 24. The collapse has triggered multiple federal and state investiga-tions and a flurry of lawsuits by victims, families and condo owners.

The lead investigating agen-cy is the National Institute for Standards and Technology, which recently estimated its probe could take as long as two years.

The lawsuit contends that ex-cavation, pile-driving and other work at Eighty Seven Park be-tween 2016 and 2019 caused vibrations that weakened the shaky structure next door. In addition, groundwater was fun-neled from the new building to the Champlain Towers prop-erty basement after developers bought a small road separating the two, the lawsuit says.

This latest 169-page com-plaint is a potential class action

that could represent all victims and their families. It was filed as part of an existing case in Miami-Dade County Circuit Court that also involves the planned sale of the Champlain Towers property to benefit victims.

The lawsuit does not cite a specific amount of damages but could run into the hundreds of millions of dollars, according to attorneys involved in the case. The nine defendants include developers of Eighty Seven

Park, an engineering firm, the Champlain Towers South con-do association and a Miami law firm.

The defendants denied that construction of Eighty Seven Park was responsible for the building collapse. The 18-story building is located in Miami Beach immediately south of the Champlain Towers site in Surfside.

“As numerous media reports have documented, Champlain Towers South was improperly designed, poorly constructed, signficantly underfunded and inadequately maintained and repaired,” said attorney David B. Weinstein, who represents 8701 Collins Development LLC.

“We expect a full review of the facts — and the ongoing investigation by NIST — will affirm our position,” Weinstein said in an email.

Curt Anderson reports for the Associated Press.

by Dara Kam

In expert reports submitted to a fed-eral judge, political science professors embroiled in a controversy with the University of Florida harshly criticized a new state elections law that makes it harder for voters to cast ballots by mail, saying the changes will have a disparately negative impact on Black, Hispanic and disabled voters.

The reports were filed on behalf of plaintiffs in a lawsuit challenging the constitutionality of the law (SB 90), championed by Gov. Ron DeSantis and approved by the Republican-dominated Florida Legislature this spring.

In one of the reports, for example, University of Florida professor Sharon Austin said the new law is a backlash against Black and Hispanic voters’ in-creased use of early voting and vote-by-mail in the 2020 general election.

“SB 90 is yet another attempt to dis-enfranchise Black and Hispanic voters so that they will not be able to elect their preferred representatives,” she argued.

Groups challenging the law hired Austin, Michael McDonald and Daniel Smith, who is chairman of the univer-sity’s political science department, to testify as experts. But UF administrators initially rejected the professors’ requests to work for the groups, saying it would be “adverse” to the university’s interests to aid the challenge to the law.

A national outcry over the school’s attempts to silence the faculty members led UF President Kent Fuchs to grant permission to the professors to testify as experts and get paid. Fuchs also set up a task force to explore the issue. The ten-ured professors and three others have filed a separate lawsuit challenging the policy that gives the school discretion in blocking faculty members from testify-ing against the state.

According to court documents filed last week, each of the three political sci-ence professors are being paid $450 an hour to serve as experts in the elec-

tions lawsuit filed by groups that in-clude Florida Rising Together, Hispanic Federation and Equal Ground Education Fund.

The law, in part, set new restrictions on the availability and use of drop boxes, where people can drop off vote-by-mail ballots. Under the law, supervisors of elections must have the boxes staffed at all times and can only use the boxes during early voting hours and at early voting sites. Supervisors who violate the requirement face $25,000 fines.

The drop-box restrictions are “di-rected at a practice that was used to an unprecedented degree by minority vot-ers” in the 2020 general election, Smith wrote in a report filed in the lawsuit.

The drop-box limits “will curtail in whole or in part 122” drop boxes de-ployed by supervisors of elections in last year’s general election and “decrease the

opportunities of tens of thousands of vot-ers across the state to return their mail ballots,” he found.

The legal challenge also targets part of the law that imposes restrictions on providing such things as food and water to people waiting in line to vote within 150-foot “non-solicitation” zones outside polling places.

Smith said the restrictions will affect racial and ethnic minority voters, who often have to wait longer in line than white voters to cast ballots.

The lawsuit also alleges that part of the law requiring third-party voter regis-tration groups to provide disclaimers to people signing up to vote is intended to have a chilling effect on groups conduct-ing registration drives.

“Persons of color in Florida are five times more likely” than white individu-als to rely on third-party organizations

when registering to vote, Smith’s report said.

The new restrictions on groups “that predominantly circulate in urban and racially and ethnically diverse communi-ties … are directed at a practice that has been disproportionately used to register minority voters in past elections, and will decrease the opportunities of thou-sands of individuals to register to vote every year, with the burdens falling most heavily on persons of color,” he added.

The new law also makes it a crime to distribute, order, request, collect, deliver or possess more than two vote-by-mail ballots other than a voter’s own ballot or the ballot of an immediate family mem-ber. Plaintiffs allege that the provision will make it more difficult for people liv-ing in congregate settings or in crowded households to cast ballots by mail.

Austin’s report detailed the history of “voting discrimination against Black and Hispanic voters that has plagued the state for several decades, “ as well as Florida legislators’ lengthy record of making changes to elections laws fol-lowing record turnouts by Black and Hispanic voters.

The state’s historic attempts to disen-franchise minority voters provide “im-portant context” for this year’s election-law changes, she argued.

The 2021 law “was not passed in a vacuum,” Austin wrote.

“Indeed, SB 90 is in many ways a cul-mination of years of attempts by white legislators and governors to discrimi-nate against Black and Hispanic voters,” she added. “My analysis of Florida’s legislative responses to increased Black and Hispanic voter participation demon-strates that Florida has passed legisla-tion intended to make it more difficult for Black and Hispanics to vote at all, as well as to vote early and by mail, and that this was plainly the intended pur-pose of Florida’s most recent legislation, SB 90.”

Dara Kam reports for the News Service of Florida.

SHUTTERSTOCK

Champlain Towers was in the midst of its 40-year structural review when it collapsed without warning in the early morning hours of June 24.

SHUTTERSTOCK

Political science professors are embroiled in a controversy with the University of Florida over a new state elections law that allegedly makes it harder for Black, Hispanic and disabled voters to cast ballots by mail.

Lawsuit: Florida Condo Collapse Triggered by Building Work

UF Political Science Profs’ Reports Target Elections Law

DAILY BUSINESS REVIEW FRIDAY, NOVEMBER 19, 2021 dailybusinessreview.com A3

by Jacqueline Thomsen

It may be the beginning of the end for defamation lawsuits filed over the 2020 election.

In many states, the statute of limita-tions for defamation expires after a year. Now, more than a year after the election, the window to litigate over certain false claims is closing—at least in some dis-tricts.

Attorneys for Smartmatic, the voting technology company, seemed to recog-nize this in filing a new lawsuit against attorney Sidney Powell in D.C. federal court Friday. That complaint notes that it’s “materially identical” to a lawsuit previously filed in New York state court, where a judge has yet to rule on wheth-er it has personal jurisdiction against Powell. She is the only defendant in that lawsuit, which also targets Fox News and Rudy Giuliani, who is raising the personal jurisdiction issue.

“It is commenced in this court as a precautionary measure to protect Smartmatic, whose reputation and busi-ness has been damaged by Ms. Powell, by preserving Smartmatic’s claims un-der the relevant statute of limitations, and as a prophylactic measure in the event that personal jurisdiction is found lacking in the Supreme Court of the State of New York,” the new complaint reads. “This court has already found personal jurisdiction over Ms. Powell in a related lawsuit for claims arising out of substan-tially similar events. Smartmatic also intends to respectfully request a stay of this precautionary action until the per-sonal jurisdiction issue is finally resolved by the New York courts.”

The allegations in the complaint, filed on Nov. 12, detail allegedly false state-

ments that were first made on Nov. 12, 2020.

An attorney for Smartmatic also filed a letter in the New York state court ex-plaining the new D.C. complaint. “In the event this court were to dismiss Ms. Powell for lack of personal jurisdiction, Smartmatic would have to prosecute its claims against Ms. Powell in a lawsuit timely commenced in another forum that has personal jurisdiction over her,” reads the letter from lawyer Edward Wipper. “With respect to this timing, many states have a one-year statute of limitations for defamation actions. Smartmatic there-fore had to file a separate lawsuit at this time to comply with this limitation.”

Still, Wipper stressed that its “pre-ferred forum is—and always has been—

in this court in New York,” and the com-pany had “no choice” but to file the D.C. complaint.

While defamation legal experts said they don’t typically see multiple claims filed in this area of the law, Jay Tidmarsh, a law professor at the University of Notre Dame, said it’s generally common in civil litigation.

“I can understand the motivation here, given that there’s a question about personal jurisdiction over one of the parties,” Tidmarsh said, referring to the New York case.

Lawyers for Smartmatic and Dominion have filed multiple lawsuits in several courts against figures they allege defamed them by claiming the voting tech companies were part of an effort

to rig the 2020 election against then-President Donald Trump and for candi-date Joe Biden. In addition to the D.C. federal court and New York state court, attorneys for both companies have also pursued actions in Delaware Superior Court, where companies such as Fox and Newsmax are incorporated.

The statute of limitations for most states, including New York and D.C., is one year. A similar statute also exists in Colorado, where Dominion has its headquarters. Delaware’s statute is lon-ger, allowing complaints to be filed two years after alleged defamatory action. Smartmatic’s American headquarters are in Florida, where the statute of limi-tations is two years.

That could also prove significant if defamation claims are pursued against Trump personally, as in 2019 he de-clared himself a citizen of Florida. When previously asked if the former president could be the target of a lawsuit, mem-bers of Dominion’s legal team have said they’re keeping all options on the table.

Dominion also has not stopped pur-suing new complaints, filing a lawsuit last week in Delaware targeting more Fox corporate entities.

Roger Schechter, a law professor with George Washington University, said there may be a “final gasp” of defamation lawsuits filed over the coming months in districts where the statute of limitations is set to soon expire. “They were out in the press and making statements all the way up through Jan. 6, certainly, so I think there is a teeny window of another month or two,” Schechter said.

Jacqueline Thomsen covers Washington, D.C., federal courts and the legal side of poli-tics. Contact her at jathomsen@alm.com. On Twitter: @jacq_thomsen.

by Amanda Bronstad

An attorney for Monsanto made a key argument before an appeals court: Federal law preempts lawsuits over its Roundup pesticide.

In a matter of first impression, a pan-el of the U.S. Court of Appeals for the Eleventh Circuit asked few questions. At issue is whether the judges agree with the premise behind the U.S. Court of Appeals for the Ninth Circuit’s May 14 holding that the Federal Insecticide, Fungicide, and Rodenticide Act does not preempt common-law claims. The ruling upheld Roundup customer Edwin Hardeman’s $80 million verdict in 2019.

“I followed the Hardeman analysis. It makes sense logically,” Eleventh Circuit Judge Robin Rosenbaum told plain-tiffs lawyer Ashleigh Madison during Tuesday’s oral arguments, referring to the Ninth Circuit’s ruling in Hardeman v. Monsanto. However, in a 2019 letter, the Environmental Protection Agency warned manufacturers that slapping a cancer warning label on their pesticides would be false and misleading and vio-late federal law.

“Let’s say Monsanto put the label on that you desire, and now it’s got this is-sue with EPA,” Rosenbaum said. “What is the answer to that?”

Madison, of Southeast Law in Savannah, Georgia, said the EPA’s letter

doesn’t have the “force of law” and was focused on glyphosate, not Roundup.

Monsanto attorney David Zoints of Covington & Burling in Washington, D.C., disagreed.

“You cannot put a safety warning on a glyphosate pesticide without getting [the] EPA to agree to do that,” he told the panel.

The appeal is the latest effort by Monsanto, now owned by Bayer, to toss thousands of lawsuits over Roundup as part of a “five-point plan” announced earli-er this year. Monsanto reached settlements totaling nearly $10 billion last year but continues to face thousands of claims that Roundup causes non-Hodgkin lymphoma.

Numerous federal courts have dis-agreed with Monsanto on its preemp-tion argument, most recently the Ninth Circuit’s ruling, which comes in the only federal trial over Roundup. Monsanto petitioned the U.S. Supreme Court to re-verse that decision.

Many of the same amici in the Supreme Court case filed briefs before the Eleventh Circuit.

The plaintiff, John Carson, alleged that he got malignant fibrous histiocytoma, a different form of cancer than non-Hodg-kin lymphoma, after using Roundup. On Dec. 21, U.S. District Judge R. Stan Baker of the Southern District of Georgia tossed most of the claims, including Carson’s allegation that Monsanto failed to warn about Roundup’s safety.

In a settlement with Monsanto, Carson agreed not to pursue the case but appealed the decision pertaining to the claim for failure to warn. Lead coun-sel in the separate Roundup multidis-trict litigation, in California’s Northern District, filed a letter before the Eleventh Circuit accusing Monsanto of participat-ing in a “pay-to-appeal scheme” in order to get a potentially advantageous federal preemption ruling from the Eleventh Circuit. Monsanto rejected the allega-tions, calling them “inflammatory rheto-ric and mistaken assertions.”

In court, Monsanto has repeatedly cit-ed the EPA’s conclusions that Roundup’s key ingredient, glyphosate, is not car-cinogenic. Adding a safety warning to Roundup’s label would conflict with FIFRA, which regulates pesticides, ac-cording to Monsanto.

“The district court was correct in ruling that state-based failure-to-warn claims different from or in addition to EPA’s science-based label, like those in this case, are preempted by federal law under FIFRA, and there is no basis for a different outcome on appeal,” Bayer said in a statement. “The EPA and indepen-dent regulatory authorities around the world have repeatedly concluded, based on their own rigorous assessments, that glyphosate can be used safely and is not carcinogenic.”

But what if there were “irrefutable ev-idence” that glyphosate caused cancer?

That was the question posed on Tuesday by Rosenbaum, who described the sce-nario as a “far-fetched hypothetical.”

“Under those circumstances, if the EPA, for whatever reason, didn’t get around to changing its mind as a matter of law, I guess, then states would not be able to, under your analysis, require Monsanto to put that warning in their label, even if there were irrefutable evidence of the cancer-causing ability of a product—for example, glyphosate,” the judge said.

Zoints said that states still could ban the product.

Madison countered that FIFRA, un-like other federal regulatory acts, con-tains a “very unique provision” under which state law claims, like failure to warn, are not preempted if they are consistent and not “in addition to or dif-ferent from” its misbranding require-ment. That distinction was outlined in the Supreme Court’s 2005 decision in Bates v. Dow Agrosciences, which found FIFRA did not preempt state law claims alleging damages to peanut crops.

“It’s our position that Dr. Carson’s state law failure-to-warn claim paral-lels, or is narrower than, FIFRA’s mis-branding requirement,” Madison said on Tuesday.

Madison did not respond to a request for comment.

Amanda Bronstad is the ALM staff reporter covering class actions and mass torts nation-wide. Contact her at abronstad@alm.com.

MANUEL BALCE CENETA/ASSOCIATED PRESS

Lawyers for voting technology company Smartmatic recently filed a “precautionary” lawsuit against Sidney Powell, above, in Washington, D.C., noting that the statute of limitations there were about to expire.

Is Time Running Out for 2020 Election Defamation Lawsuits?

Monsanto Goes Before 11th Circuit to Resolve Roundup Lawsuits

FROM THE COURTS

A4 dailybusinessreview.com FRIDAY, NOVEMBER 19, 2021 DAILY BUSINESS REVIEW

by Katheryn Hayes Tucker

Mike Andrews, of Montgomery, Alabama-based Beasley Allen, has been working on litigation against Boeing since soon after the crash of Ethiopian Airlines Flight 302, a 737 MAX, on March 10, 2019.

Days afterward, he traveled to Ethiopia, then rode several hours to the scene of the crash. Andrews described it as a 45-foot crater—large enough to hold a three-story building—in Tulu Fara vil-lage near Bishoftu, Ethiopia. He said the aircraft “throttled into the ground at nearly 600 miles per hour.” Only frag-ments of the plane remained, along with personal belongings of the passengers.

This week, Andrews reached a ma-jor milestone for his clients. They are the daughters of Juliah Mwashi, who worked with a nonprofit devoted to lead-ership programs for girls. They were 16 and 18 when their mother was killed in the second of the two 737 MAX crashes. The plane was grounded after that to correct a defect.

Under an agreement filed with the U.S. District Court in Chicago, Mwashi’s daughters will be able to recover com-pensatory damages in exchange for not seeking punitive damages, using Illinois law, Andrews said. The recovery will come in addition to the $2.5 bil-lion Boeing agreed to pay in a deferred prosecution agreement with the U.S. Department of Justice that absolves company leaders from criminal charges.

“This is a significant step in the right direction, but there are obviously many steps to go,” Andrews said after Judge Jorge Alonso signed off on the agree-ment Monday. “We have to determine by mediation or by trial the amount of com-pensatory damages.” But, he added, “This agreement obviously gets us closer.”

The global agreement was negotiated by the plaintiffs’ executive committee for the crash. Defense attorneys for Boeing include: Dan Webb, Christopher Essig, Julia Johnson and Matthew William Francis Poplawski of Winston & Strawn

in Chicago; Christopher Martin Ledford, Mack Harrison Shultz , Jr. and Michael E. Scoville of Perkins Coie in Seattle; Daniel Thomas Burley and Jonathan Buck of Perkins Coie in Chicago.

“We extend our deepest condolences to the families of those lost on Lion Air Flight 610 and Ethiopian Airlines Flight 302. Since the accidents, Boeing has made significant changes as a company, and to the design of the 737 MAX, to ensure that accidents like those never happen again,” the company said in a statement shared by a corporate representative.

“Boeing is committed to ensuring that all families who lost loved ones in the acci-dents are fully and fairly compensated for their loss,” the company said. “The agree-ment approved by the Court is an impor-tant step forward in that process. By ac-cepting responsibility, Boeing’s agreement with the families allows the parties to fo-cus their efforts on determining the ap-propriate compensation for each family.”

The first crash killed 189 people, and the second, 157. Andrews said many of the victims of the second crash, like his clients’ mother, worked for nonprofit or-ganizations. They were on their way to a United Nations environmental meet-ing in Nairobi, Kenya. “There were more than 30 countries represented by indi-viduals on that flight, many of them on humanitarian missions,” he said.

Andrews has made several trips back to Africa to work on the case and visit his clients. But the images he saw on the first trip are still on his mind.

“It was sobering to say the least,” he said.

The progress made in the case thus far has been meaningful to his clients and their family, and not just out of fi-nancial considerations, he said.

“A large part of the comfort the girls have felt is they know their voices are being heard,” Andrews said. “They truly are dedicated to making sure this doesn’t happen again.”

Katheryn Hayes Tucker is an Atlanta-based reporter covering legal news for the Daily Report and other ALM publications.

by Meghann M. Cuniff

A federal judge approved $23.1 million in attorney fees in a class action over Wells Fargo’s auto insurance gap coverage program, a final step in a settle-ment that’s changing how the banking giant operates.

The award is more than half the $45 million settlement fund, but U.S. District Senior Judge James V. Selna of the Central District of California said in an order finalized Monday the set-tlement is worth “at least $84 million, and has a likely future value to class members of ap-proximately $107 million.”

The money will go to the class counsel, led by Jason Frank, Scott Sims and Andrew Stolper of Frank Sims & Stolper in Irvine. Franklin Azar of Franklin D. Azar & Associates in Colorado and Charles Schaffer of Levin Sedran & Berman in Philadelphia were also on the case.

And according to them, the value of the settlement is far greater than the $107 million identified by Selna because of fundamental changes it’s bring-ing to Wells Fargo’s Guaranteed Asset/Auto Protection program, which pays customers the gap between auto insurance cover-age and the total cost of the car.

Previously, a customer with GAP coverage for a five-year loan could pay the loan in three years, but Wells Fargo would

keep the full five-year GAP fee. Under a change implemented because of the lawsuit, that cus-tomer would be reimbursed for two years of GAP coverage no longer needed.

A plaintiff’s expert estimated GAP refunds will total $417 million over the next four years, which attorneys noted is money Wells Fargo wouldn’t be paying had it not been for the lawsuit.

“Wells Fargo will be essen-tially waiving its argument that it does not have the contractual obligation to issue the refund or that customers must provide a written request as a prereq-uisite for a refund, at least for a four-year period. Obtaining this business practice change was one of the primary goals of this lawsuit,” according to a declaration from Frank. “While the change is not permanent under the terms of the settle-ment, class counsel hopes and believes that the four-year pe-riod will demonstrate to Wells Fargo that it should adopt this change on a permanent basis.”

Wells Fargo is represented by McGuireWoods as well as a North Carolina-based team from Troutman Pepper Hamilton Sanders. McGuireWoods part-ners Alicia Baiardo and David Powell from San Francisco ap-peared at Monday’s hearing in Santa Ana. They didn’t oppose the fee award.

Filed by Frank Sims & Stolper in 2018, the proposed class ac-

tion is not related to the mas-sive scandal over secret fees for unwanted car insurance that engulfed Wells Fargo in 2017 and included a $390 million multidistrict litigation settle-ment in 2019, also litigated in the Central District. The case never reached the class certi-fication stage, but according to filings, Wells Fargo estimated the potential membership at nearly 2.7 million customers.

In addition to the future GAP fee refunds, Wells Fargo has already paid $33.36 million in refunds to members of a sub-class, according to Frank’s dec-laration, with approximately 105,274 people receiving an average of $316.87. The addi-tional $22 million or so in the

$45 million settlement fund that remains after attorney fees will give subclass members an ad-ditional payment “of up to $5” and will pay other approved claims, Frank said.

Frank called the compensa-tion plan “essentially a complete win” for the subclass members.

The fee award is based on a lodestar of approximately $10.8 million stemming from 17,711.6 hours of work and hourly rates ranging from $150 to $450 for paralegals and $900 to $1,000 for partners. It comes to $23.1 million be-cause of a 2.13 multiplier to the lodestar, which Selna said was reasonable. He also approved $260,982.42 in litigation ex-penses.

However, Selna took issue with the plaintiff attorneys’ request that the 15 named plaintiffs each receive $7,500, observing that the $112,500 total is more than 23 times the average recovery for statutory subclass members.

The judge said time dec-larations showed all but one spent 12 to 41 hours, bringing an hourly rate between $182 and $625 that he deemed un-reasonable. He reduced the service payments to reflect an hourly rate of $125. One plaintiff had 94 hours, which would have meant an increase to $11,750, but Selna kept his payment at $7,500. The other payments range from $1,500 to $5,125.

According to court docu-ments, the fees were suggested by someone Selna knows well: Retired U.S. District Judge Andrew J. Guilford, a Judicate West neutral who joined the case as a mediator last year. Guilford, whose chambers were next to Selna’s, said in a decla-ration he recommended the fee awards based on evidence and arguments from both sides. He’s experienced with Wells Fargo, having presided over the auto insurance MDL that settled in 2019 for $390 million.

Meghann Cuniff reports for The Recorder, an ALM affiliate of the Daily Business Review. Contact her at mcuniff@alm.com. On Twitter: @meghanncuniff.

Pictured from left are Ethiopia’s civil aviation chief Wosenyeleh Hunegaw, Birmingham, Alabama, attorney Leah Chege; Ethiopian Minister of Transport and Communications Dagmawit Moges; Beasley Allen lawyer Mike Andrews, and investigator Abate Reta.

JAMIE RECTOR

U.S. District Senior Judge James V. Selna said that the settlement is worth “at least $84 million, and has a likely future value to class members of approxi-mately $107 million.”

Ethiopian Airlines Crash Lingers for Plaintiffs Lawyer in Boeing Case

Judge OKs $23M in Fees in Wells Fargo Insurance Gap Class Action

FROM THE COURTS

DAILY BUSINESS REVIEW FRIDAY, NOVEMBER 19, 2021 dailybusinessreview.com A5

by Dylan Jackson

Former Boies Schiller Flexner deputy chair and co-managing partner Natasha Harrison is leaving the firm to start her own boutique, ac-cording to a source close to the firm.

Harrison previously an-nounced in September that she was stepping down from the deputy chair role after having been elevated to the position following the departure of former co-managing partner Nick Gravante to Cadwalader, Wickersham & Taft late last year. Her departure was first reported by Bloomberg on Wednesday.

With Harrison’s eleva-tion last year came the un-derstanding that she would eventually take the reins from founder David Boies. She cited professional and personal reasons for step-ping down from that post.

Neither Harrison nor a firm representative immedi-ately responded to a request

for comment on Harrison’s departure.

“The significant and per-sistent challenges posed by the pandemic weighed heav-ily in her ultimate decision. Most notably as it relates to the pandemic, international travel restrictions have pre-vented Natasha from spend-ing the kind of time in the U.S., actively engaging with the leadership team,” the firm said in a September memo about her decision to leave the deputy chair posi-tion.

Her departure also whit-tles down the firm’s four-attorney management com-mittee to just three: partners Sigrid McCawley, Matthew Schwartz and Alan Vickery.

While its future leadership is in flux, the firm will likely reelect Boies to another term as chairman.

Harrison first joined the firm in 2013 from Bingham McCutchen and built the London outpost from the ground up. Even as the firm saw its revenue plummet by

38% last year as the firm lost more than a third of its part-nership, that office remained profitable, posting a 12% in-crease in revenue.

A source close to Boies Schiller said Harrison’s deci-sion to start a boutique, rath-er than join another firm, is a prudent decision. Now, she will have the flexibility and freedom to work with mul-tiple U.S.-based firms with business in the U.K.

Earlier this year, accord-ing to a source close to the firm, Harrison and others were pitted against firm founder Jonathan Schiller over his son and firm part-ner, Joshua Schiller, who was detained following a domes-tic violence incident earlier this year. Harrison and oth-ers in the firm wanted to take more concrete action against Joshua Schiller.

The firm hired New York attorney Danya Perry to con-duct an investigation and, roughly a month later, the firm announced in a memo that leadership had not seen

any evidence that the incident between Joshua Schiller and his wife involved any physi-cal abuse. The firm leaders added that they “appreciate Josh’s patience with his leave as the firm conducted its in-vestigation.” Prosecutors dropped the charge in April.

Last week, Boies Schiller announced its first office opening in roughly a decade when it said it is expanding into Milan, Italy. The firm hired a four-partner team from an Italian boutique firm.

“The addition of highly regarded attorneys also fur-ther expands our practice capabilities, including for in-ternational arbitration work, and creates opportunities for BSF to advise Italian and EU companies in their U.S.-based work,” firm co-manag-ing partner Vickery said in a statement.

Dylan Jackson writes about the business of law and race. Contact him at djackson@alm.com. On Twitter: @DylanBJackson.

Harrison Leaves Boies Schiller for Own FirmTHE FIRM

airplane,” and he received an endorse-ment in his pilot logbook from a certi-fied flight instructor that mainly certi-fied that he received training “to qualify for solo flying.”

But the aircraft was a multiengine airplane. And the insurance policy specifically noted that Neubert was re-quired to obtain a multiengine rating, as well as additional requirements, before flying multiengine aircraft, court docu-ments show.

Despite damage to the aircraft, the insurance company denied Neubert’s claim, stating that the president failed to meet the special conditions of the policy that “required him to obtain a multien-gine rating and an instrument for mul-tiengine aircraft prior to solo flight,” ac-cording to court documents.

Ford & Harrison Tampa partner Tracey K. Jaensch, the lead attorney for Neubert Aero, did not respond to a re-quest seeking comment.

But Jaensch argued that the phrase “multiengine rating” was ambiguous

and susceptible to interpretation in favor of coverage because of the cer-tificate and the certified flight instructor endorsement. However, U.S. Magistrate Judge Philip R. Lammens, in his report and recommendation, stated Jaensch’s argument was “unavailing.”

Now, U.S. District Judge James S. Moody Jr., who sits in the Middle District of Florida, ruled in favor of the defendants, Starstone National, as well as London Aviation Underwriters Inc. and Southwest Aviation Group of Arizona Inc.

The ruling saved the defendants hundreds of thousands of dollars, as well as being on the hook for plaintiff’s attorney fees, counsel said.

Jurman also identified another case demonstrating this trend of strictly con-struing warranty terms. In Travelers Property Casualty Company of America v. Ocean Reef Charters, the U.S. Court of Appeals for the Eleventh Circuit reject-ed the appellees’ argument to invoke application of the warranties, and sent the case back to the U.S. District Court in the Southern District of Florida.

Under Eleventh Circuit precedent, federal maritime law required strict

compliance with captain and crew warranties in a marine insurance pol-icy, according to the opinion. And since Ocean Reef breached the warranties, there was no coverage for the loss of the 92-foot Hatteras yacht under its policy.

Jurman, who was not involved in the litigation, said the federal appellate court concluded that there was no en-trenched maritime rule governing cap-tain or crew warranties, and that, as a result, Florida law applied to determine the effect of Ocean Reef’s breaches, which lead to the court determining that the denial of coverage was justified.

“The trend is important because the Eleventh Circuit highlighted how im-portant these warranties are and what needs to be reviewed in terms of con-sistency with Florida law, and if Florida law applies,” Jurman said. “So just because you have a warranty in your policy, whether it be marine or aviation, that doesn’t mean it’s going to be en-forced. That was an awakening for the insurance industry.”

Michael A. Mora covers litigation and is based in South Florida. You can contact him by email: mmora@alm.com.

that conducted structural tests since the closure of the building.

The tests went smoothly, leading the county’s internal services department to conclude that the building is structur-ally sound, and the courthouse may be reoccupied by the public and return to normal operations, officials said.

Now, some attorneys have expressed optimism about the historic courthouse reopening in less than three weeks, in-cluding Sabrina Puglisi, the president of the Miami-Dade Bar and first female

criminal defense attorney to lead the or-ganization.

“The health and safety of all the peo-ple that enter the building has always been a priority to Chief Judge Sayfie,” Puglisi said. “The attorneys and litigants in our community are, no doubt, ready to return to normal operations.”

Eric Bluestein, a partner at Dolan Dobrinsky Rosenblum Bluestein in Miami and president of the Miami-Dade Trial Lawyers Association, said attorneys previously expressed to him their frustration about logistical issues, such as which courthouse to subpoena witnesses, as well as communicating with the court about their cases.

But Bluestein said it will be easier for litigators to speak with the judges and their staff about questions involving their cases now that attorneys can ac-cess the judges in their chambers when the courthouse reopens.

“If you’re in the courthouse for some-thing, sometimes you can poke your head in and speak to the judicial assis-tant,” Bluestein said. “And maybe say, ‘Hey, did what I send last week show up? Do I need to send it again?’ You can have some sort of conversation with them and really figure out what’s happening.”

Michael A. Mora covers litigation and is based in South Florida. You can contact him by email: mmora@alm.com.

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by Andrea Rodriguez

Cuba’s top diplomat said that the fizzled attempt by young activists to en-courage anti-government protests this week was a failure in political communi-cation by the organizers, who he again accused of being supported by U.S. in-terests.

Foreign Minister Bruno Rodríguez spoke two days after no Cubans turned out for demonstrations and a few hours after it was revealed that one of the main organizers, playwright Yunior García, had gone to Spain.

“It is clear that what I called a failed operation — a political communication operation organized and financed by the United States government with million-aire funds and the use of internal agents — was an absolute failure,” Rodríguez said in an interview with The Associated Press.

Organizers on Monday complained that they had been kept from leaving their homes by supporters of Cuba’s Communist government or by threats from police to be arrested if they took to the streets.

The foreign minister argued that the activists aren’t representative of most Cubans and called on the U.S. govern-ment to loosen restrictions on visiting the island.

“I wish they would allow Americans their freedom to travel and that they could come to Cuba and see the reality first hand and discover the deception to which they are frequently subjected, with the aim of sustaining an obsolete, geno-cidal policy that violates human rights and international law and causes suffer-ing among the Cuban people,” he said.

Rodríguez also questioned the atten-tion given to the call for protests, saying it seems “that Cuba is the only country in the world in which a protest that did not happen becomes international news.”

The organizers had been hoping to repeat the outpouring of anti-govern-ment sentiment in mid-July, when thou-sands took to the streets in cities across the island to protest shortages of goods and power blackouts. Some even called for a change in government.

García and the Archipelago group, which is an online platform of young ac-tivists, sought to hold demonstrations to demand the release of prisoners, especial-ly those arrested during the July unrest, human rights and a national dialogue.

Rodriguez repeated the Cuban gov-ernment’s contention that United States was the real force behind the protest effort. He said that of the thousands of Twitter participants and “users” in-volved in promoting the protests, “less than 2%” were actually in Cuba.

In a statement Tuesday, Archipelago blamed the failure of the protests on government coercion. It said there were “more than 100 activists under sit-down, arbitrary detentions, enforced disap-pearances, acts of repudiation, violence, threats, coercion and hate speech.”

After the group reported it had been unable to contact García, the playwright on Wednesday reported on his Facebook account that he had left Cuba and was

in Spain with his wife, Dayana Prieto. García called the trip an “odyssey” and

said the couple were in good health and with “intact ideas.”

The foreign minister said Cuba’s government had no involvement in García’s de-

parture.“I guess he is exercising

the right that any Cuban has to travel and move freely. There is no

martyr capacity in those who organize this kind of farce and failed operations under instructions and funding from the U.S. government,” Rodríguez said.

He also complained about U.S. eco-nomic sanctions and said U.S. President Joe Biden hasn’t done anything to re-verse the tough policies that were tak-en by President Donald Trump against Cuba.

“The daily reality of the Cubans, of every Cuban family, continues to be difficult, living under the burden of the blockade measures, in particular the measures of President Trump during the pandemic,” Rodríguez said.

He said Biden is pursuing “with equal rigor” the same policies, and he said the damage in Cuba from U.S. economic strictures have been intensified by coro-navirus pandemic.

The Biden administration has spoken repeatedly in support of the Cuban ac-tivists and praised the anti-government protests. In July, the U.S. announced new sanctions on Cuba’s national revolution-ary police and its top two officials while seeking to ramp up pressure on the is-land’s government.

Andrea Rodriguez reports for the Associated Press.

by Diane Jeantet

Brazil’s government rolled out a new welfare program, temporarily ensuring much-needed financial help for millions of families while also worrying experts because funding and other details have yet to be determined.

The cash-transfer program is called Brazil Aid and replaces Bolsa Familia (Family Grant), a widely praised, two-de-cade-old initiative of the leftist Workers’ Party. The new program increases the monthly stipend for each beneficiary to an average of 224 reais ($40) from 190 reais and also will raise the number of recipients.

It is expected to reach 17 million families by year-end, up from the 14.5 million enrolled in Bolsa Familia before the pandemic, but less than half of those who received emergency pandemic pay-ments, which ended last month. That has caused some confusion for many Brazilians about whether they remain eligible for assistance.

President Jair Bolsonaro created Brazil Aid in August with an emergency provisional measure that Congress must ratify before Dec. 9. The clock is tick-ing, but lawmakers in the Chamber of Deputies are awaiting Senate approval of a proposed constitutional amendment that would raise maximum government spending and free up funding for the program.

The amendment is divisive, however, as it has heightened investor concerns over the potential for excessive govern-ment spending.

Political analysts, meanwhile, say Bolsonaro is effectively rebranding an existing program to buoy his reelec-tion chances. He is expected to compete in next year’s election against former President Luiz Inácio Lula da Silva, who launched Bolsa Familia in 2003. Bolsonaro is trailing in early polls, after a bump in his approval ratings from the government’s pandemic welfare pro-gram faded.

Brazil’s pandemic aid was among the most generous in the world, and had al-ready prompted some market concern that Latin America’s largest nation was spending beyond its means. Brazil Aid, while a sharp drawdown from the pan-demic outlay, will represent additional costs over that of Bolsa Familia.

Pedro Guimarães, chairman of the state-owned bank distributing welfare aid, Caixa Econômica Federal, sought to allay fiscal concerns at a news confer-ence Wednesday.

“From the payment standpoint we have no problem. Zero problem,” Guimarães said.

Regardless of funding, critics have questioned the reasons for discontinu-ing a welfare program that drew broad acclaim for its achievements. Bolsa Familia was the subject of thousands of

academic studies in Brazil and abroad, which reported significant reductions in poverty, inequality and infant mortality.

Researchers also found greater access to basic health and said school atten-dance — one requirement to receive the benefit — also improved. The birth rate of Brazil’s poorest families decreased, contradicting a common claim that the program would encourage women to have more children.

“There were always very modest sums, but it always worked well. It’s a program that was cheap, efficient and effective,” said Pedro Ferreira de Souza, who co-authored a 2019 study on Bolsa Familia for the government’s Institute for Applied Economic Research. “This new program raises more questions than it answers.”

Brazil Aid does create a series of new benefits, including for working parents who cannot secure child care and for small family farmers in exchange for food donations. These provisions, how-ever, won’t come into effect until addi-tional funding has been earmarked.

“You have these nine new types of benefits, many of which are variants of previous benefits. They’re not (en-tirely) new, but they’re interesting,” said Marcelo Neri, director of the Getulio Vargas Foundation’s social policy center.

Tereza Campello, who was part of a team that worked on the creation of Bolsa Familia in 2003, expressed anger

that a long-standing pillar of Brazil’s fight against poverty is being toppled.

“I’m outraged. It’s not even sadness, it’s outrage,” said Campello, who later served as Brazil’s minister of social development and fight against hunger. In her time as minister, Campello said, she received del-egations from dozens of countries inter-ested in learning about Bolsa Familia.

“What drives this new program? It’s not scientific evidence, it’s not people’s reality. It’s improvisation and electoral interest. These are the only two things that drive this public policy,” she said.

On Wednesday, some Brazilians headed to bank branches to inquire about payments, complaining about the shortage of information regarding who is eligible for the benefits and how much they will be. Lines were spotted in some parts of Brazil, though their sizes were a far cry from the chaos some analysts had predicted.

Waiting in one line in Rio de Janeiro, Suzanne Vieira, 22, said she had been getting the emergency pandemic aid and was surprised to find no money depos-ited into her bank account this month. She is unemployed and has two chil-dren, with a third on the way.

“I don’t know what I’m going to do,” she said.

Diane Jeantet reports for the Associated Press. AP writers Débora Álvares in Brasilia and Diarlei Rodrigues in Rio de Janeiro con-tributed to this report.

RAMON ESPINOSA/ASSOCIATED PRESS

Cuban Foreign Minister Bruno Rodríguez argued that the activists aren’t representative of most Cubans and called on the U.S. government to loosen restrictions on visiting the island.

Cuban FM Tells AP That Fizzled Protest Effort Was US Failure

Brazil Swaps Acclaimed Welfare Program for Untested Stand-In

FOCUS LATIN AMERICA DAILY BUSINESS REVIEW FRIDAY, NOVEMBER 19, 2021 dailybusinessreview.com A7

Commentary byMichael L. Hymanand Nicole R. Kurtz

A Florida condominium association and its board of directors refused to

grant an accommodation to allow an owner to leave his shoes outside the front door of his unit in a con-dominium building with outdoor walkways. As a result of its unyielding re-solve, the association now faces a costly, and poten-tially dire, federal discrim-ination lawsuit brought against it by the U.S. Department of Justice. The DOJ’s complaint al-leges that the association, in refusing to allow the unit owner to leave his shoes outside of his unit’s front door, committed var-

ious violations of the Fair Housing Act. Furthermore, the entire matter has also been chronicled online in an extensive news report by The Daily Beast.

The website’s article begins by noting that Charlie Burge, the unit owner who sought an accommodation that would allow him to maintain his shoes outside his unit’s front door, is a 9/11 responder who suffers from medical ailments stem-ming from his front-line work at the World Trade Center site. Before moving to Florida, he had worked for the New York City Department of Sanitation for 35 years, and he spent more than 400 days clearing debris at ground zero. As a result of this work, the article states that Burge suffers from upper respiratory issues,

gastrointestinal ailments, skin cancer and PTSD; all of which federal officials have certified as being related to cleanup work performed at the WTC site.

After he retired in 2015, Burge and his wife Anna moved to a residence they owned at the Links South at Harbour Village, a condominium community on the Ponce Inlet south of Daytona Beach, Florida. In order to avoid aggravating his symptoms, and on the advice of his doc-tor, the couple began leaving their shoes outside of their front door. As their door is set back by several feet from the outdoor open-air walkway of their building, they were able to keep their shoes in a spot where they would not block anyone’s path.

A couple of years passed without com-plaint, but in October 2017 the association’s board of directors pre-sented the Burges with a rule violation notice informing them that they had 10 days to remove the shoes from the hallway.

POLICE RETRIEVE SHOESAccording to the DOJ’s lawsuit, which

was filed on Oct. 8, what then ensued constituted a clear pattern of FHA vio-lations and housing discrimination. The DOJ’s complaint asserts that, due to Burge’s disability, the FHA required the board to have made a reasonable ac-commodation to the Burges by allowing them to keep their shoes outside their door so they could have had an equal opportunity to use and enjoy their home.

Instead, after a subsequent notice from the board in January 2018, the couple opened their front door and found their shoes missing, so they called the police.

Officers then helped them to retrieve their shoes from the association’s man-agement office. The following month, this entire sequence of events repeated itself, and again the police helped the Burges retrieve their shoes from the office.

Subsequent communications from the association’s attorney warned the Burges to cease and desist from leaving their shoes outside the door, and threat-ened an injunction. The town’s chief of police also visited the couple to inform them that they could no longer have its officers come to the condominium to re-trieve their shoes.

The couple ultimately retained an at-torney who submitted a formal request for a reasonable accommodation to the

association, asking it to allow the Burges to leave their shoes outside their unit for health reasons. The request included a recommendation from

Burge’s doctor not to track “outdoor al-lergens, chemicals or pollutants” into the unit because of his various health condi-tions, and a request from a physician’s assistant to let the Burges leave their shoes outside the unit. The request also included an academic study on shoe-borne pathogens, as well as a letter from the WTC Health program that outlined the specifics of Burge’s various maladies.

ASSOCIATION INCREDULOUSIt only took two days for the associa-

tion’s attorney to respond to the accom-modation request with a demand for further documentation together with an explanation as to why the accommoda-tion was necessary.

The association also requested per-mission to inspect and photograph the couple’s residence and “examine all shoes and vegetation within the unit and balcony.” Through its attorney, the association asked for authenticated cop-ies of Burge’s medical and prescription records for the past two years, copies of any test results for any allergens or molds within the unit in the past year, and any authoritative materials substan-tiating the correlation between an aller-gy documented by Burge and the need to store shoes outside.

A subsequent letter from Burge’s phy-sician stated that he “is allergic to mold, mites, dust, pollen, trees, and grasses, all of which may exacerbate his conditions,” and “these upper respiratory conditions cause difficulty primarily with breath-ing and swallowing, but can also affect speaking, eating, and hearing.” Bringing the shoes inside put Burge “at unnec-essary risk of inflammation, difficulty breathing or swallowing, a possible com-plete inability to breathe or swallow,” the physician wrote, also noting that leaving the shoes outside gave any pollutants or allergens a chance to dissipate outdoors in the open air.

After more than a year of back-and-forth communications by the attorneys, the association concluded that the “doc-tor’s letter does not connect the dots by stating specifically the nexus of such al-lergies to the specific substance presum-ably on his shoes.” The DOJ complaint states that the association’s legal counsel also asked if Burge had retained a doctor or lab to test his shoes, if Burge’s doc-tor advised him how to deal with shoes inside his vehicle, and “if Mr. and Mrs. Burge had any peer-reviewed medical articles that substantiated the correla-

tion between Mr. Burge’s allergies and leaving his shoes outside.”

DISCRIMINATORY ACTSThe Daily Beast article states that a

source, who asked for anonymity, told the reporter that the association’s board members began to lash out in response to the accommodation request. Unfounded rumors about Mr. Burge and his wife began to circulate throughout the com-munity, and the board made statements during its meetings about the costs of Mr. Burge’s legal maneuvers.

Additionally, when Mr. Burge began washing his shoes before going inside using a spigot located in the garage, management removed the spigot handle.

The website’s article also states that the association was not holding other residents to the same standard. A build-ing source says one resident would leave bags of dog feces outside of his door, and Mr. Burge also noted that the president of the association regularly parked a double stroller for his family outside of his unit.

The Burges’ attorney filed a complaint in April 2019 with the U.S. Department of Housing and Urban Development, the federal agency then headed by Trump appointee Ben Carson, and HUD de-termined the condo association had indeed discriminated against Burge. This cleared the way for the DOJ to file its lawsuit, United States of America v. The Links South at Harbour Village Condominium Association, in the U.S. District Court for the Middle District of Florida.

Based on the information from The Daily Beast’s exhaustive report and the allegations from the DOJ’s complaint, it seems there is a strong case to be made against the association for its refusal to grant Burge’s requested accommoda-tion. Perhaps the dispute became per-sonal for members of the board of direc-tors, who obstinately refused to recon-sider their prior decision even in light of seemingly verifiable and official medical documentation confirming a legitimate need for the accommodation.

As a result, the legal costs and potential liabilities for the Links South at Harbour Village will be substantial, but the take-aways from this case present priceless lessons for all other community associa-tions that come completely free of charge. Associations and their boards of directors must act in a reasonable manner when making determinations over requests for accommodations based on physicians’ recommendations. Steadfastly refusing to accept valid documentation presented by unit owners could lead to extremely severe legal and financial consequences, not to mention news coverage that re-mains online in perpetuity and could negatively impact property values.

Visit https://bit.ly/3pg8SEY to read The Daily Beast article, which is perfect example of such a report.

Michael L. Hyman and Nicole R. Kurtz are attorneys with the South Florida law firm of Siegfried Rivera who focus on community association law and are based at the firm’s Coral Gables office. They are both regular contributors to its condo and HOA law blog, www.FloridaHOALawyerBlog.com, and Hyman is board certified as a special-ist in community association law by The Florida Bar. The firm also maintains offices in Broward and Palm Beach counties, and its attorneys focus on construction, real estate, community association and insurance law. www.SiegfriedRivera.com, 305-442-3334.

DOJ Discrimination Suit Over Shoes Left Outside Holds Lessons for Community Associations

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A8 dailybusinessreview.com FRIDAY, NOVEMBER 19, 2021 DAILY BUSINESS REVIEW

by Tom McParland

President Joe Biden’s nomination of U.S. District Judge Alison J. Nathan to serve on the U.S. Court of Appeals for the Second Circuit marked the first time that the Biden administration has looked to elevate a sitting federal judge to the Manhattan-based appeals court.

If she is confirmed, the 49-year-old Nathan, of the Southern District of New York, would become just the second openly lesbian woman to serve as a fed-eral appeals court judge, after the Senate earlier this month approved the nomi-nation of Beth Robinson, a former as-sociate justice of the Vermont Supreme Court, to serve on the same court.

Her selection could also signal a tac-tical shift for the Biden administration, which, until now, has looked outside the federal bench to fill Second Circuit va-cancies and fulfill Biden’s pledge to add both professional and demographic di-versity.

“It’s a very inside-the-box pick,” said John Collins, a visiting law professor at George Washington University Law School.

Of the three nominees confirmed so far, only Robinson had experience serv-ing as a judge on a state court. Biden’s two other nominees, Myrna Perez and Eunice Lee, had backgrounds in voting rights and criminal defense, respectively.

Following Nathan’s nomination, there are still two other vacancies outstanding on the Second Circuit.

Nathan, an appointee of President Barack Obama to the Southern District of New York bench, has built a reputation

as a standout judge, known for her han-dling of high-profile and sensitive mat-ters, including her work currently pre-siding over the criminal trial of Jeffrey Epstein associate Ghislaine Maxwell.

She has also notably held the Manhattan U.S. Attorney’s Office to ac-count for alleged misconduct in the bun-gled prosecution of an Iranian business-man who had been accused of funneling millions of dollars through the American financial system.

Prior to her appointment, Nathan clerked for U.S. Judge Betty Binns Fletcher of the Ninth Circuit Court of

Appeals and Associate Justice John Paul Stevens on the U.S. Supreme Court. She has also taught at Fordham University School of Law and New York University School of Law.

From 2009 to 2010, Nathan served as a special assistant to Obama, and af-ter her stint in the White House, worked in the New York attorney general office as a special counsel to the state solicitor general.

Carl Tobias, a professor at the University of Richmond School of Law, said that elevating sitting federal judges could be an increasingly appealing op-

tion for Biden heading into the 2022 election cycle.

The administration, he said, would likely look to fill existing vacancies quick-ly after a jarring 2021 election night in Virginia and New Jersey signaled that Democrats’ razor-thin Senate majority could be in danger heading into the mid-term elections.

“I think the administration is mak-ing a priority of judgeships and filling as many as possible before 2022,” Tobias said.

“My guess is that would indicate to move as quickly as possible, and the quick-est way to move is to elevate,” he said.

Both Tobias and Collins agreed that a number of diverse candidates remain on the district court benches, particular-ly in New York’s Southern and Eastern Districts and in Connecticut.

But elevating could also allow Biden to reshape the district court bench in the same way that he has for the Second Circuit.

According to the Administrative Office of the U.S. Courts, there are four additional judicial vacancies in the Southern District alone, along with three in the Eastern District and one in the Northern District. And any further selec-tions among those ranks would be an-other opportunity for Biden to build out a deeper roster of young, liberal talent on the lower courts.

“I think it’s a good bet for elevation,” Tobias said.

Tom McParland reports for the New York Law Journal, an ALM affiliate of the Daily Business Reviw. Contact him at tmcparland@alm.com. On Twitter: @TMcParlandALM.

by Jason Grant

Saying the Biden administration and the U.S. Department of Justice are “com-mitted to fully discharging our respon-sibilities to Indian nations,” the DOJ an-nounced a total award of $104 million for services to tribal-community crime victims, including at least some funding for legal services.

The money, which comes in large part via more than 140 awards made through the DOJ’s Crime Victims Fund Tribal Victim Services Set-Aside pro-gram, can be used for an array of vic-tim services, according to the DOJ’s announcement. Those include the development and implementation of new tribal-community service pro-grams and overall strategic planning and needs assessment, as well as more specified on-the-ground services in-cluding legal services, crisis abuse in-tervention, medical care, shelter and transitional housing, and education and employment-readiness services.

“American Indian and Alaska Native crime victims deserve the same access to services and the same level of support available to survivors in other communi-ties,” Associate Attorney General Vanita Gupta said in a statement that accompa-nied the announcement.

“This administration, and this Department of Justice, are committed to fully discharging our responsibilities to Indian nations, especially to those who have experienced the pain and loss that follow victimization,” she added.

Acting Assistant Attorney General Amy Solomon of the DOJ’s Office of Justice Programs, said in the same an-nouncement of the nearly $104 million award, “American Indians and Alaska Natives experience crime and victim-ization at disproportionate rates, and they are often unable to access the

services they need to begin the road to healing.”

According to the news release, the money awarded comes from the DOJ’s Office for Victims of Crime, which a com-ponent of its Office of Justice Programs. The DOJ also pointed out that the Crime Victims Fund, which is tied to the set-

aside program, was established by the 1984 Victims of Crime Act, and that it isn’t paid for with tax dollars. The fund’s money comes from criminal fines, for-feited bail bonds, penalty fees and spe-cial assessment fees collected by U.S. Attorneys’ Offices, U.S. Courts and the Bureau of Prisons, said the DOJ.

In addition to almost $101 million com-ing from the set-aside program to support Tribal communities, another $3 million will be distributed under the Children’s Justice Act Partnership to Tribes, said the DOJ. That money will be used for re-sponding to cases involving criminal child abuse and neglect, the agency said.

The DOJ also noted in its news re-lease that the nearly $101 million set-aside program award will, among other things, be used to:

• Support Tribal grantees with ca-pacity building, training, and techni-cal assistance ($6.8 million) via the Tribal Set-Aside Training and Technical Assistance Program, the Tribal Financial Management Center, and the Human Trafficking Capacity Building Center;

• Send funding to the Bureau of Indian Affairs to support the Federal Crime Victim Assistance Fund ($30,000) and certain Victim Specialist positions (more than $1.7 million); and

• Hold the next National Indian Nations Conference ($680,796).

Jason Grant covers legal stories and cases for the New York Law Journal, an ALM affili-ate of the Daily Business Review. Contact him at jgrant@alm.com. On Twitter: @JasonBarrGrant.

EVAN VUCCI/ASSOCIATED PRESS

Until now, President Joe Biden has looked outside the federal bench to fill Second Circuit vacan-cies and fulfill his pledge to add both professional and demographic diversity.

DIEGO M. RADZINSCHI

“American Indians and Alaska Natives experience crime and victimization at disproportionate rates, and they are often unable to access the services they need to begin the road to healing,” said acting Assistant Attorney General Amy Solomon of the Department of Justice’s Office of Justice Programs.

Biden Federal Court Nomination May Underscore Tactical Shift

DOJ Awards $104M for Tribal-Community Crime Victim Services

FROM THE COURTS

DAILY BUSINESS REVIEW FRIDAY, NOVEMBER 19, 2021 dailybusinessreview.com A9

by Lynn Pollack

Commercial real estate in the US is nowhere near bubble territory in the near-term, but investors would be well-served to consider the three- to five-year supply and demand outlook before snapping up assets.

That’s according to John Chang, Senior Vice President and Director of Research Services at Marcus & Millichap.

Consider industrial, an asset class that’s up 22.3% over pre-pandemic lev-els, with revenues up by 11% and vacan-cies at a low near 4%. Despite that gap, “investors are purchasing these proper-ties based on rising demand driven by e-commerce and supply chain disrup-tions,” Chang says. “But even though in-dustrial absorption is at a record level, so is construction, and new development could ultimately bypass demand.”

It’s a similar story for multifamily.“There’s a lot of speculation that apart-

ment pricing is overheated,” Chang says. “We’re seeing cap rates hit record lows and record high prices in many markets, mostly high population growth areas.”

The average price per unit for apart-ments nationally is up 11.9% over end of

2019 levels, according to M&M data, but rev-enues are up by 12.6% and vacancies are at a record low of 2.8%. Because of that, there’s “no bubble here,” according to Chang.

“The current pricing is substantiated by revenue growth, at least at a national level. In addition, there are numerous

signs we are in a severe housing short-age that will fuel demand for apart-ments,” he says.

Self-storage is comparable: prices are up by 15.5% and revenues are up by 17.2%, while vacancy is at a record low. Supply side risk is limited for the next few years,

but the big question is whether demand will hold. Chang acknowledges that’s “a bit of an open debate,” but says that since mil-lennials are driving 39% of the self-storage demand and many of them are unable to enter the homebuying market, those self-storage needs are sustainable. Chang has bigger concerns, he says, about the supply and demand outlook for the sector over the next three to five years because the pace of construction will reignite.

Retail isn’t anywhere near bubble ter-ritory, with prices up just 1.9% over pre-pandemic levels, and revenues are up by 2.2%. The asset class “actually looks like a bit of a bargain right now,” Chang says, “especially with retail centers making a recovery.”

Same goes for urban office, where prices are down 2.5% and revenues are down by 9.6% over pre-pandemic levels. Suburban office is a little more aggres-sive, with prices up by 11.5% and reve-nues down by 1%. Significant migration to the suburbs from millennials could also drive future demand, making sub-urban office a “reasonable bet.” Return to office plans will be key to the outlook for the sector, Chang says.

Lynn Pollack reports for GlobeSt.com.

by Paul Bergeron

Property database ATTOM will start incorporating climate change in its rat-ings at the property level for five haz-ards—wildfire, flood, heat, storm and drought. It is one of a growing number of analytics providers that are adding climate change into their calculations. Moody’s REIS, for instance, announced last month it was making climate risk scores available on its analytics platform.

ATTOM will be assessing each prop-erty with a 0-100 rating for the five hazards, with projections going as far out as 2050—a period within the lifes-pan of a 30-year mortgage signed today. ATTOM’s climate change risk data will be updated quarterly.

“Understanding current and future climate change risk has become a very important data point for many of our customers in real estate, mortgage and insurance industries,” says Sean Mooney, vice president of product at ATTOM.

Customers can use ATTOM’s climate change risk solution to evaluate proper-ties for investment decisions, assess risk

for new product development, or to enrich a real estate portal with unique content.

Moody’s climate risk scoring meth-odology analyzes both current and fu-

ture risk and follows the firm’s recent expansion into sub-sovereign climate risk scores introduced by Moody’s ESG Solutions.

LITTLE ACTION SO FAR As these firms add climate change

risk to their platforms, they may well find an audience with only moderate interest in the data. For instance, de-velopers in Miami—a city at great risk from climate change—are not yet inte-grating climate risk analysis into prop-erty assessments, according to Moody’s research.

From 2015 to 2019, the Miami metro saw the highest percentage of assets ex-posed to flooding, yet it added the most volume of new space to its inventory during this period.

“While these results tend to contra-dict the basic idea that risk should lead to lower development, more nuanced theory does support the potential for less impact to be realized in areas which have greater wealth and/or are amenity filled,” Moody’s notes.

Paul Bergeron reports for GlobeSt.com.

by Erik Sherman

Single-tenant medical net lease is looking very healthy. Cap rates for the subsector, involving properties from $2 million to $8 million, dropped 55 basis points year over year to 5.95% in Q3 of 2021, according to a new report from the Boulder Group. The overall net lease group also saw a cap rate compression, but of 23 basis points.

In other words, a year ago, medical net lease was trading at a 28-basis point discount to the general category. Now it’s at a 4-basis point premium. “It’s outper-formed the market by 32 basis points last year, which is fairly significant,” Boulder

Group president Randy Blankstein tells GlobeSt.com. “A lot of net lease-investors are over allocated in retail. They want to rebalance, and that’s buy more in medi-cal and in industrial.”

But industrial is wickedly popular these days, with cap rates in some geo-graphic areas and types pushed down into the threes. The properties can be extremely expensive, especially when talking of major logistics space for an Amazon or Target or FedEx.

The boost was a shot in the arm from a general pandemic kick in the pants. “Clearly a beneficiary from Covid,” Blankstein says. “And an aging demo-graphic, so a lot of need for the product.

Another impact of the pandemic was a swift increase in demographic shift from major urban centers to the sun belt, with secondary and tertiary metro areas seeing fast influxes. People need housing, office space, retail, and medical treatment.

Then, there are the shifts in prac-tice and operations of the medical industry. Younger doctors graduating from medical school have an increas-ingly hard time operating indepen-dently. Many find work as employ-ees, either in a hospital satellite of-fice, a larger physician’s practice, or an urgent care facility. “You still see a lot of doctor groups getting larger

and larger, for better or worse,” says Blankstein.

“Now with inflation worries on every-one’s mind, medical has greater escala-tions than most of retail does,” Blankstein adds. “It’s something you can buy in an inflationary environment, and it will re-tain some of its value. What is driving the $2 million to $8 million category, there’s a base that wants to diversify out of re-tail. Medical looks like a relative bargain in that respect [compared to industrial].”

Blankstein expects this category of medical net lease to continue its growth trend through at least 2022, with “every category of medical” growing.

Erik Sherman reports for GlobeSt.com.

STOCK.ADOBE.COM

Maybe not tomorrow, but investors would be well-advised to consider medium term fundamentals.

SHUTTERSTOCK

Wildfire, flood, heat, storm and drought are now part of ATTOM’s rating system.

Is Commercial Real Estate Headed for a Bubble?

Another Property Database Adds Climate Change Risk to Its Analysis

Medical Net Lease Makes Its Bones with Investors

COMMERCIAL REAL ESTATE

A10 dailybusinessreview.com FRIDAY, NOVEMBER 19, 2021 DAILY BUSINESS REVIEW

DAILY BUSINESS REVIEW FRIDAY, NOVEMBER 19, 2021 dailybusinessreview.com A11

CITY OF DORALNOTICE OF PUBLIC HEARING

All residents, property owners and other interested parties are hereby notified of a Zoning Workshop on Thursday, December 2, 2021 at 6:00 p.m. The Meeting will take place at the City of Doral, Government Center, 1st Floor Multipurpose Room located at 8401 NW 53rd Terrace, Doral, Florida, 33166.

The following application will be presented:

HEARING NO.: 21-12-DOR-02APPLICANT: Fortuna Real Estate LLC, on behalf of Farmasi USA (the “Applicant”)PROJECT NAME: Farmasi USAPROJECT OWNER: Emre TunaLOCATION: 10780 NW 27th Street, Doral, Florida 33172FOLIO NUMBER: 35-3030-034-0010SIZE OF PROPERTY: 3.73 acresFUTURE LAND USE MAP DESIGNATION: IndustrialZONING DESIGNATION: Industrial DistrictREQUEST: The Applicant is proposing to develop a two-story 71,690 square foot building to accommodate Farmasi USA headquarter with showroom and offices (9,064 sq. ft. for 1st level offices and 7,069 sq. ft. for 2nd floor offices) along with a 55,557 square foot warehouse and distribution center.

Location Map

ZONING WORKSHOP PROCESS: The zoning workshop consists of two sessions: 1. First Session. The first session of a zoning workshop shall provide a forum for members of the public to learn about proposed developments within the city. Developments may be presented to the public simultaneously, in several locations within the meeting site. During this session, members of the public are encouraged to ask questions and to provide feedback to the applicant about the proposed development. The applicant shall provide visual depictions, such as renderings, drawings, pictures, and the location of the proposed development. In addition, representatives of the applicant shall be available to answer questions that members of the public may have about the proposed development. The members of the City Council shall not be present during the first session of the zoning workshop.

2. Second Session. The second session of a zoning workshop shall provide a forum for the City Council to learn about the proposed developments discussed at the first session of the zoning workshop. No quorum requirement shall apply. Developments shall be presented by the applicants sequentially, one at a time, for the City Council’s review and comment. The applicant shall again present visual depictions of the proposed development. In addition, the applicant shall be available to answer any questions that members of the City Council may have about the proposed development.

No quorum requirement shall apply nor will any vote on any project be taken, but roll call will be taken, as it is a publicly noticed meeting.

Information relating to this request is on file and may be examined in the City of Doral, Planning and Zoning Department located at 8401 NW 53rd Terrace, Doral, Fl. 33166. Maps and other data pertaining to these applications are available for public inspection during normal business hours in City Hall. Any persons wishing to speak at a public hearing should register with the City Clerk prior to that item being heard. Inquiries regarding the item may be directed to the Planning and Zoning Department at 305-59-DORAL.

Pursuant to Section 286.0105, Florida Statutes, if a person decides to appeal any decisions made by the City Council with respect to any matter considered at such meeting or hearing, they will need a record of the proceedings and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for introduction or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In accordance with the Americans with Disabilities Act, all persons who are disabled and who need special accommodations to participate in this meeting because of that disability should contact the Planning and Zoning Department at 305-59-DORAL no later than three (3) business days prior to the proceeding.

NOTE: If you are not able to communicate, or are not comfortable expressing yourself, in the English language, it is your responsibility to bring with you an English-speaking interpreter when conducting business at the City of Doral during the zoning application process up to, and including, appearance at a hearing. This person may be a friend, relative or someone else. A minor cannot serve as a valid interpreter. The City of Doral DOES NOT provide translation services during the zoning application process or during any quasi-judicial proceeding.

NOTA: Si usted no está en capacidad de comunicarse, o no se siente cómodo al expresarse en inglés, es de su responsabilidad traer un intérprete del idioma inglés cuando trate asuntos públicos o de negocios con la Ciudad de Doral durante el proceso de solicitudes de zonificación, incluyendo su comparecencia a una audiencia. Esta persona puede ser un amigo, familiar o alguien que le haga la traducción durante su comparecencia a la audiencia. Un menor de edad no puede ser intérprete. La Ciudad de Doral NO suministra servicio de traducción durante ningún procedimiento o durante el proceso de solicitudes de zonificación.

Connie Diaz, MMC City ClerkCity of Doral

11/19 21-98/0000563940M

by Erik Sherman

For those who own, operate, and invest in retail space, it might be time for some broader relief, if big company financial results have anything to say.

Some big names have been doing quite well even ahead of the crucial holiday shopping season in the fourth quarter.

“There is a real sense of optimism heading into the heart of the holiday and shopping season, and recent an-nouncements from top retailers is only adding to that,” Ethan Chernofsky, vice president of marketing at data firm Placer.ai, tells GlobeSt.com. “The combination of pent-up demand and a clear reason to shop drove significant retail success in the summer, and the same combination is already making itself felt in the early stages of the holi-day retail season.”

Data from S&P Global Market Intelligence shows the retail sector of the S&P 500 to be in welcome strong shape. Out of the 22 companies in the sector index, 12 so far have reported earnings for the third quarter of 2021. Of them, 10 beat expectations while two missed. In the second quarter, all 22 beat earnings estimates.

Two of the beats, both in revenue and earnings, came Tuesday from Walmart—which benefited from its lo-gistics power and supplier relations—and Home Depot’s windfall of consum-ers investing in home improvements during the pandemic, according to Nasdaq.

Target just released numbers show-ing 12.7% year-over-year comparable sales based on traffic. Even though 2020 was heavily in the pandemic, potentially a low starting point for a comparison, Target was one of those essential busi-nesses delivering what consumers needed. The company saw sales growth

of $15 billion over 2019, according to Minnesota’s Star Tribune Media, mak-ing the jump between 2020 and 2021 even more pronounced.

Similarly, TJX had open-only comp stores sales growth of 14%, year over year in its latest reported quarter. Net sales were 20% above last year in a cat-egory that fared well in a homebound consumer scenario.

Weekly retail foot traffic averaged across all categories is up 3.9%—and that’s compared to the same period in 2019, not in 2020 when many physical locations were shut down—according to data from Placer.ai. Inventories are much higher than a year ago at retail-ers, according to the Wall Street Journal, so there should be plenty of draw for consumers.

Strong performance in large retail doesn’t necessarily mean that smaller companies are doing well. But bring-ing shoppers in on foot to anchor stores increases the chance of spillover traffic to others. And when businesses are sell-ing more, they’re more stable, which is probably better music to CRE ears than the latest version of the Little Drummer Boy.

Will things keep improving? “The prospect of nagging inflation appears to be a concern for consumers, but counterintuitively the U.S. econo-my saw increased retail spending,” Bradley Tisdahl, CEO of Tenant Risk Assessment, tells GlobeSt.com. “It’s unclear how long this will last, but larger retailers are likely to be better equipped to capture this spending by compressing margins to gain share of wallet amid an uncertain inflationary environment.” But there is a potential lump of coal: “Smaller independent retailers are less likely to weather inflationary pressures longer-term,” Tisdahl adds.

Erik Sherman reports for GlobeSt.com.

SHUTTERSTOCK

Earnings reports suggest that the sector is on the upswing, which is good news for retail properties.

Retail Is On Track to Have an Abundant Holiday

COMMERCIAL REAL ESTATE

A12 dailybusinessreview.com FRIDAY, NOVEMBER 19, 2021 DAILY BUSINESS REVIEW

CITY OF DORALNOTICE OF PUBLIC HEARING

All residents, property owners and other interested parties are hereby notified of a Zoning Workshop on Thursday, December 2, 2021 at 6:00 p.m. The Meeting will take place at the City of Doral, Government Center, 1st Floor Multipurpose Room located at 8401 NW 53rd Terrace, Doral, Florida, 33166.

The following application will be presented:

HEARING NO.: 21-12-DOR-04APPLICANT: National Express Wash, LLC d/b/a El Car Wash (the “Applicant”)PROJECT NAME: El Car Wash Site PlanPROJECT OWNER: PPD Investment Holdings LLCLOCATION: Northeast corner of NW 87 Avenue and NW 27 Street IntersectionFOLIO NUMBER: 35-3027-051-0020 and portion of 35-3027-051-0035SIZE OF PROPERTY: 1.51 +/- net acresFUTURE LAND USE MAP DESIGNATION: Business with CMU Opportunity Area Overlay (West Portion) and Industrial with CMU Opportunity Area Overlay (East Portion)ZONING DESIGNATION: Commercial Corridor District CCREQUEST: The Applicant is proposing to redevelop the vacant Property with a 7,815 square foot automatic car wash and a commercial-retail outparcel. The proposed El Car Wash will accommodate twelve (12) indoor carwash spaces, and approximately thirty-six (36) outdoor vacuum/parking spaces. The proposed carwash structure is two (2) stories in height.LEGAL DESCRIPTION: Tract “H”, less the North 22.12 feet of TRANSAL CORPORATE PARK AMENDED, according to the plat thereof, as recorded in Plat Book 149, at Page 64, of the Public Records of Miami-Dade County, Florida.

AND

The West 129 feet of Tract “I” of “TRANSAL CORPORATE PARK AMENDED”, according to the plat thereof, as recorded in Plat Book 149, at Page 64, of the Public Records of Miami-Dade County, Florida, LESS the North 145 feet thereof.

Containing an area of 65,905 Square Feet or 1.51 Acres, more or less, by calculations.

Location Map

ZONING WORKSHOP PROCESS: The zoning workshop consists of two sessions: 1. First Session. The first session of a zoning workshop shall provide a forum for members of the public to learn about proposed developments within the city. Developments may be presented to the public simultaneously, in several locations within the meeting site. During this session, members of the public are encouraged to ask questions and to provide feedback to the applicant about the proposed development. The applicant shall provide visual depictions, such as renderings, drawings, pictures, and the location of the proposed development. In addition, representatives of the applicant shall be available to answer questions that members of the public may have about the proposed development. The members of the City Council shall not be present during the first session of the zoning workshop.

2. Second Session. The second session of a zoning workshop shall provide a forum for the City Council to learn about the proposed developments discussed at the first session of the zoning workshop. No quorum requirement shall apply. Developments shall be presented by the applicants sequentially, one at a time, for the City Council’s review and comment. The applicant shall again present visual depictions of the proposed development. In addition, the applicant shall be available to answer any questions that members of the City Council may have about the proposed development.

No quorum requirement shall apply nor will any vote on any project be taken, but roll call will be taken, as it is a publicly noticed meeting.Information relating to this request is on file and may be examined in the City of Doral, Planning and Zoning Department located at 8401 NW 53rd Terrace, Doral, Fl. 33166. Maps and other data pertaining to these applications are available for public inspection during normal business hours in City Hall. Any persons wishing to speak at a public hearing should register with the City Clerk prior to that item being heard. Inquiries regarding the item may be directed to the Planning and Zoning Department at 305-59-DORAL.

Pursuant to Section 286.0105, Florida Statutes, if a person decides to appeal any decisions made by the City Council with respect to any matter considered at such meeting or hearing, they will need a record of the proceedings and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for introduction or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In accordance with the Americans with Disabilities Act, all persons who are disabled and who need special accommodations to participate in this meeting because of that disability should contact the Planning and Zoning Department at 305-59-DORAL no later than three (3) business days prior to the proceeding.

NOTE: If you are not able to communicate, or are not comfortable expressing yourself, in the English language, it is your responsibility to bring with you an English-speaking interpreter when conducting business at the City of Doral during the zoning application process up to, and including, appearance at a hearing. This person may be a friend, relative or someone else. A minor cannot serve as a valid interpreter. The City of Doral DOES NOT provide translation services during the zoning application process or during any quasi-judicial proceeding.

NOTA: Si usted no está en capacidad de comunicarse, o no se siente cómodo al expresarse en inglés, es de su responsabilidad traer un intérprete del idioma inglés cuando trate asuntos públicos o de negocios con la Ciudad de Doral durante el proceso de solicitudes de zonificación, incluyendo su comparecencia a una audiencia. Esta persona puede ser un amigo, familiar o alguien que le haga la traducción durante su comparecencia a la audiencia. Un menor de edad no puede ser intérprete. La Ciudad de Doral NO suministra servicio de traducción durante ningún procedimiento o durante el proceso de solicitudes de zonificación.

Connie Diaz, MMC City ClerkCity of Doral

11/19 21-97/0000563947M

by Jim Saundersand Tom Urban

Rebuking the Biden administra-tion, Florida’s Republican-controlled Legislature passed a measure that seeks to prevent workers from being required to get vaccinated against COVID-19.

The votes by the House and Senate came on the third day of a special legisla-tive session called by Gov. Ron DeSantis, who has sparred for months with the White House about COVID-19 policies. But the outcome of the votes was never in doubt: Republican leaders agreed on the bill (HB 1B) before the session start-ed and walled it off from any changes.

“We trust the individual Floridians to make the best decision for them-selves and their children, more than we trust the federal government,” Rep. Joe Harding, R-Williston, said before the House voted 78-39 along almost straight party lines to pass the bill.

Democrats criticized the bill, and the decision to hold a special session, as a po-litical ploy by Republicans and said it will not help curb the COVID-19 pandemic.

“We have been here all week debating this in a way that is only prolonging this pandemic and making it harder for us to get shots in arms and dollars in people’s pock-ets, so that we can get on with our lives,” Rep. Andrew Learned, D-Brandon, said.

Several hours after the House passed the bill Wednesday, the Senate voted 24-14 along party lines to give final approval.

The special session was driven, at least in part, by Biden administration moves aimed at requiring workers at large busi-nesses, federal contractors and in the health-care industry to be vaccinated.

Under the bill, Florida private-sector workers could avoid vaccination require-ments if they provide medical reasons, reli-gious reasons or can demonstrate “COVID-19 immunity.” Also, they could be exempt if they agree to regular COVID-19 testing or agree to wear personal protective equipment.

Employers could face fines up to $50,000 per violation if they don’t prop-erly follow the law.

The legislation also will bar govern-ment agencies from requiring workers to be vaccinated. In addition, it rein-forces a law known as the “Parents’ Bill of Rights” to ban student mask and vac-cination requirements in public schools.

The school part of the bill came af-ter months of legal battling between the

state and some school districts that re-quired students to wear masks. Those districts have dropped mask require-ments recently as COVID-19 cases have subsided, and districts have not imposed vaccination mandates.

Rep. Geraldine Thompson, D-Windermere, argued that blocking schools from being able to mandate such COVID-19 mitigation measures would ag-gravate a teacher shortage in the state.

“Are we putting teachers at risk? And I am concerned that we have a teacher shortage. We have people taking early retirement. We have shortages in terms of people who will not drive our school buses because they are in that enclosed environment with young people who don’t have to wear masks, who don’t have to be vaccinated,” Thompson said.

But Rep. Mike Caruso, R-Delray Beach, defended the prohibition on school mask requirements.

“I sit there and I question our school boards for mandating masks for our chil-dren,” Caruso said. “They say ‘Well, physi-cally, it’s going to protect them from the (virus),’ when they fail to recognize the mental health issues that masks cause.”

The only Democrat who voted for the bill was Rep. James Bush, D-Miami, and the measure sparked a sometimes-raw partisan fight.

At one point, Rep. Anthony Sabatini, R-Howey-in-the-Hills, called President Joe Biden a “tyrant” and urged “nulli-fying” federal laws, drawing jeers from Democrats. Rep. Bryan Avila, a Miami Springs Republican who was presid-ing over the House at the time, directed House members not to make comments about Biden or DeSantis.

During a news conference later, House Democrats said the session was more about the political ambitions of DeSantis, who is widely considered a potential 2024 presidential candidate, than about addressing the more than 60,000 Florida deaths from COVID-19.

“The circus has folded up its tents and is going back home,” House Minority Co-leader Evan Jenne, D-Dania Beach, said. “The special session on promoting a pres-idential campaign is over. But the damage to public health will last for a generation and lead to untold death and suffering.”

Jim Saunders and Tom Urban report for the News Service of Florida. News Service staff writers Ryan Dailey and Jim Turner contributed to this report.

DIEGO M. RADZINSCHI

Gov. Ron DeSantis has sparred for months with the White House about COVID-19 policies.

Florida Lawmakers Pass Plan to Block Vaccine Mandates

BANKING/ FINANCE

DAILY BUSINESS REVIEW FRIDAY, NOVEMBER 19, 2021 dailybusinessreview.com A13

CITY OF DORALNOTICE OF PUBLIC HEARING

All residents, property owners and other interested parties are hereby notified of a Zoning Workshop on Thursday, December 2, 2021 at 6:00 p.m. The Meeting will take place at the City of Doral, Government Center, 1st Floor Multipurpose Room located at 8401 NW 53rd Terrace, Doral, Florida, 33166. The following application will be presented:HEARING NO.: 21-12-DOR-03APPLICANT: National Express Wash, LLC d/b/a El Car Wash (the “Applicant”)PROJECT NAME: El Car Wash Land Use AmendmentPROJECT OWNER: PPD Investment Holdings LLCLOCATION: Northeast corner of NW 87 Avenue and NW 27 Street IntersectionFOLIO NUMBER: Portion of 35-3027-051-0035SIZE OF PROPERTY: 0.30 +/- net acresFUTURE LAND USE MAP DESIGNATION: Industrial with CMU Opportunity Area OverlayZONING DESIGNATION: Commercial Corridor District (CC)REQUEST: The Applicant is seeking to amend the Comprehensive Plan Future Land Use Map (FLUM) designation on the Property from Industrial to Business in order to develop the Property as part of an enhanced and improved commercial and retail development.LEGAL DESCRIPTION: The East 80 feet of the West 129 feet of Tract “I” of TRANSAL CORPORATE PARK AMENDED, according to the plat thereof, as recorded in Plat Book149, at Page 64, of the Public Records of Miami-Dade County, Florida, LESS the North 145 feet thereof.

Location Map

ZONING WORKSHOP PROCESS: The zoning workshop consists of two sessions: 1. First Session. The first session of a zoning workshop shall provide a forum for members of the public to learn about proposed developments within the city. Developments may be presented to the public simultaneously, in several locations within the meeting site. During this session, members of the public are encouraged to ask questions and to provide feedback to the applicant about the proposed development. The applicant shall provide visual depictions, such as renderings, drawings, pictures, and the location of the proposed development. In addition, representatives of the applicant shall be available to answer questions that members of the public may have about the proposed development. The members of the City Council shall not be present during the first session of the zoning workshop. 2. Second Session. The second session of a zoning workshop shall provide a forum for the City Council to learn about the proposed developments discussed at the first session of the zoning workshop. No quorum requirement shall apply. Developments shall be presented by the applicants sequentially, one at a time, for the City Council’s review and comment. The applicant shall again present visual depictions of the proposed development. In addition, the applicant shall be available to answer any questions that members of the City Council may have about the proposed development. No quorum requirement shall apply nor will any vote on any project be taken, but roll call will be taken, as it is a publicly noticed meeting.Information relating to this request is on file and may be examined in the City of Doral, Planning and Zoning Department located at 8401 NW 53rd Terrace, Doral, Fl. 33166. Maps and other data pertaining to these applications are available for public inspection during normal business hours in City Hall. Any persons wishing to speak at a public hearing should register with the City Clerk prior to that item being heard. Inquiries regarding the item may be directed to the Planning and Zoning Department at 305-59-DORAL. Pursuant to Section 286.0105, Florida Statutes, if a person decides to appeal any decisions made by the City Council with respect to any matter considered at such meeting or hearing, they will need a record of the proceedings and, for such purpose, may need to ensure that a verbatim record of the proceedings is made, which record includes the testimony and evidence upon which the appeal is to be based. This notice does not constitute consent by the City for introduction or admission of otherwise inadmissible or irrelevant evidence, nor does it authorize challenges or appeals not otherwise allowed by law. In accordance with the Americans with Disabilities Act, all persons who are disabled and who need special accommodations to participate in this meeting because of that disability should contact the Planning and Zoning Department at 305-59-DORAL no later than three (3) business days prior to the proceeding.NOTE: If you are not able to communicate, or are not comfortable expressing yourself, in the English language, it is your responsibility to bring with you an English-speaking interpreter when conducting business at the City of Doral during the zoning application process up to, and including, appearance at a hearing. This person may be a friend, relative or someone else. A minor cannot serve as a valid interpreter. The City of Doral DOES NOT provide translation services during the zoning application process or during any quasi-judicial proceeding.NOTA: Si usted no está en capacidad de comunicarse, o no se siente cómodo al expresarse en inglés, es de su responsabilidad traer un intérprete del idioma inglés cuando trate asuntos públicos o de negocios con la Ciudad de Doral durante el proceso de solicitudes de zonificación, incluyendo su comparecencia a una audiencia. Esta persona puede ser un amigo, familiar o alguien que le haga la traducción durante su comparecencia a la audiencia. Un menor de edad no puede ser intérprete. La Ciudad de Doral NO suministra servicio de traducción durante ningún procedimiento o durante el proceso de solicitudes de zonificación. Connie Diaz, MMC City ClerkCity of Doral11/19 21-96/0000563948M

by Riley Griffin

Johnson & Johnson will focus on de-veloping drugs for conditions such as lung cancer and eye disease as it pre-pares to make its pharmaceutical and medical-devices business an indepen-dent entity.

The 135-year-old health giant faces its greatest-ever overhaul as it read-ies for a spin-out of its consumer unit, following a path trod by rivals such as GlaxoSmithKline Plc and Pfizer Inc. In her first-ever interview, Jennifer Taubert, J&J’s executive vice president and world-wide chairman of pharmaceuticals, told Bloomberg News that the company will invest in new areas of interest.

Over the next decade, Taubert said, J&J will prioritize gene therapies for inherited retinal disease, lung cancer treatments, CAR-T therapies that aim the immune system against cancer, and treatment for conditions linked to auto-antibodies. It’s also prepared to look for outside assets that may include new technologies such as messenger RNA, which the Pfizer-BioNTech SE partner-ship and upstart biotech Moderna Inc. have ridden to COVID-19 vaccine riches.

“We have a number of deals that are underway,” Taubert said. “Fingers crossed we’ll be able to close some of those.”

Taubert also emphasized that the company won’t be spinning out its med-ical-devices business in the near future, as it’s become increasingly intertwined with new and complex treatments un-der development.

J&J’s pharmaceutical arm has long been its strongest performer, bringing in more than half its total revenue and churning out 21 new products over the last decade. Recently, however, many competitors have spun out less-prof-itable businesses such as consumer health, generic drugs and animal health to focus almost exclusively on building their branded drug pipelines.

J&J is seeking to recapture the inter-est of investors by focusing on pharma-ceuticals with mega-blockbuster poten-tial. Its pharma unit has invested nearly $10 billion in research and development this year alone.

But Taubert doesn’t want to stop there. The 34-year industry veteran is crafting a new investment strategy to

put J&J in a better position to win out against peers. That may include cut-ting some programs, which the com-pany evaluates every two to three years, Taubert said.

“We actually prune out the ones that we don’t think make sense for us,” she said.

For example, J&J plans to scale back on neuroscience, Taubert said, as cur-rent knowledge of natural and disease mechanisms make drug development challenging.

Taubert said the company remains in-terested in infectious disease and vaccines, and is ensuring that team has the right resources to compete in the market. She recently hired Penny Heaton, the founding CEO of the Bill and Melinda Gates Medical Research Institute, to lead the team infec-tious disease and vaccine unit. The compa-ny will look at possibilites for using mRNA technology there, she said.

“Penny is going to look not only at what diseases we want to prevent, but also the best platforms that could get us there,” Taubert said.

J&J lagged its mRNA rivals in mak-ing COVID vaccines because of produc-tion setbacks. “The learnings will make us stronger for commercial vaccines to follow,” Taubert said. While the company plans to make 1 billion doses in 2022, she said, it still doesn’t see its vaccine as a moneymaker.

Some investors and analysts have speculated that J&J will spin out its medical device business next. Taubert rejected the notion, saying, devices have become a more important part of the therapeutic landscape that often figures in drug delivery and diagnosis.

J&J’s schizophrenia treatment Invega Hafyera, for example, is delivered with an auto-injector. Other devices are used to detect lung detect cancer. They may also come into play in J&J’s experimen-tal eye treatment, Taubert said.

“That’s going to require inserting genes into the back of an eye and the retina through a type of surgical inter-vention,” she said.

The collaborative efforts of pharma and devices will be key to the company’s success, Taubert said.

“When we work as one team, I think that’s where we get the best results,” she said.

Riley Griffin reports for Bloomberg News.

SHUTTERSTOCK

Johnson & Johnson faces its greatest-ever overhaul as it readies for a spin-out of its consumer unit, following a path trod by rivals such as GlaxoSmithKline and Pfizer.

J&J Pharma Exec Reveals Playbook for Stand-Alone Drugmaker

BANKING/ FINANCE

BANKING/ FINANCE

by Mark Chediakand Josh Saul

Corporate tax changes proposed in President Joe Biden’s $2 trillion spend-ing plan threaten to undercut his am-bitious climate goals and undermine clean-power development, according to energy companies that oppose it.

The latest version of the spending package, which is still being debated in the U.S. Congress, includes a minimum tax of 15% on a corporation’s book in-come. That would sharply diminish the benefits of other financial incentives in the legislation designed to hasten the build-out of green power, the American Clean Power Association said in a letter to Senate leaders and seen by Bloomberg News.

The objection comes at a pivotal mo-ment for the Biden administration, with Democratic leaders scrambling to pass the spending package, known at the Build Back Better Act, amid pushback from both Republicans and moderate Democrats. The clean-energy compa-

nies, which include American Electric Power Co., NextEra Energy Inc. and Orsted AS, say that the minimum tax would threaten Biden’s goal of a carbon-free grid by 2035, adding to the chorus of corporate opposition to the changes.

The proposal would do away with accelerated depreciation, which clean-energy developers have used to book higher tax deductions on projects over a shorter period of time, helping to reduce the costs. That would raise the expense of renewable energy projects by 15% to 20% and result in the loss of 130 giga-watts of clean-energy deployments over the next decade, the association said.

“Any impact on deployment will mean fewer renewable energy projects and make meeting President Biden’s ambitious climate goals more diffi-cult,” said the letter, which was sent earlier this month to Senate Majority Leader Charles Schumer and Senator Ron Wyden, chairman of the Senate Committee on Finance.

The companies argue that the chang-es would undercut the legislation’s other

incentives for clean power development including a 10-year extension of the re-newable energy production and invest-ment tax credits along with the option for developers to claim the subsidy as direct payment instead of a tax credit.

The Edison Electric Institute, the lob-bying group for U.S. investor-owned utilities, has raised similar concerns and asked for the tax provision to be re-moved from the package.

“The adoption of a book minimum tax on electric companies would impede the deployment of clean energy, cost billions of dollars in lost investments, and result in the loss of thousands of jobs, while raising the costs of the clean energy transition for customers,” Thomas Kuhn, president of the Edison Electric Institute, said in a letter sent to U.S. House and Senate leaders earlier this month.

The clean power group also asked Democratic leaders to allow for renew-able energy projects to qualify for ac-celerated depreciation even if a mini-mum corporate tax is included the final bill. Other companies that signed the

group’s letter include Equinor US, EDF Renewables North America LLC and Berkshire Hathaway Energy.

— With assistance from Jennifer A. Dlouhy.

Mark Chediak and Josh Saul report for Bloomberg.

by Tom Murphy

The U.S. government will pay drugmaker Pfizer $5.29 billion for 10 million treat-ment courses of its potential COVID-19 treatment if regula-tors authorize it, the nation's largest purchase agreement yet for a coronavirus therapy.

Pfizer asked the Food and Drug Administration on Tuesday to authorize emer-gency use of the experimental pill, which has been shown to significantly cut the rate of hos-pitalizations and deaths among people with coronavirus infec-tions.

The FDA is already review-ing a competing pill from Merck and will hold a public meeting on it later this month.

The price for Pfizer’s poten-tial treatment amounts to about $529 per course. The U.S. has already agreed to pay roughly $700 per course of Merck’s drug for about 3.1 million treat-ments.

Pfizer said Thursday the price being paid by the U.S. government reflects the high

number of treatment courses purchased through 2022.

President Joe Biden said in a statement that his administra-tion is taking steps to ensure that the treatments “will be eas-ily accessible and free.”

“This treatment could prove to be another critical tool in our arsenal that will accelerate our path out of the pandemic,” Biden said, adding that vac-cines protecting against the vi-rus remain the strongest tool.

Pfizer has started rolling submissions for approval in several other countries and there are advanced purchase agreements with other govern-ments as well.

On Tuesday, Pfizer signed a deal a with U.N.-backed group to allow generic drugmakers to produce low-cost versions of the pill for certain countries. Merck has a similar deal for its pill, which was authorized in Britain earlier this month.

Pfizer reported earlier this month that its pill cut hospi-talizations and deaths by 89% among high-risk adults who had early symptoms of COVID-19.

The company studied its pill in people who were unvacci-nated and faced the worst risks from the virus due to age or health problems, such as obesity.

Pfizer wants the drug avail-able for adults who have mild-to-moderate COVID-19 infec-tions and are at risk of becom-ing seriously ill. That’s similar to

how other drugs are currently used to treat the disease.

But all FDA-authorized COVID-19 treatments require an IV or injection given by a health professional at a hospi-tal or clinic.

Pfizer’s potential treatment is taken twice a day for five days, in combination with a

second antiviral pill that boosts its effect.

Pfizer has already booked more than $24 billion in global revenue so far this year from Comirnaty, its COVID-19 vaccine, which has quickly become the drugmaker's top-selling product.

Shares of New York-based Pfizer Inc. climbed less than 2% at the opening bell Thursday. They hit an all-time high of $51.86 this summer, topping a previous mark that had stood for 22 years.

Pfizer and Merck are seeking approval for their treatments as COVID-19 cases start to re-bound again in the U.S.

The seven-day rolling average for daily new cas-es approached 87,000 on Wednesday, according to data from Johns Hopkins University. That's up from around 68,000 late last month.

AP Health Writer Matthew Perrone contributed to this report from Washington, D.C. Murphy reported from Indianapolis.

Tom Murphy reports for Associated Press.

by Alex Tanzi

E-commerce, once the land of dis-counts and cheaper goods, has become a steady source of inflation in the pan-demic recovery.

Online prices rose 1.9% in October from a year earlier and 0.9% from the previous month, according to data from software company Adobe Inc. It marks the 17th straight month of increases af-ter more than six years of declines in the Adobe Digital Price Index.

Rising prices at the start of the holiday shopping season -- a time when retailers

normally begin to push deals -- is anoth-er sign of how broad-based inflation has become in the country. E-commerce is even more ubiquitous in the pandemic era, when Americans stuck at home got used to ordering everything from their phones or computers.

Adobe expects $1 in every $4 to be spent online this holiday season.

“As e-commerce takes on a greater share of overall retail, the pricing trends have become a more important indica-tor of net impact to consumers,” Vivek Pandya, an analyst at Adobe, said in a report.

The silver lining for consumers -- and policy makers -- is that online price in-creases remain far below overall infla-tion, which rose 6.2% last month, the fastest annual pace since 1990.

The annual growth in Adobe’s price index in October was also slower than in September, a sign that some retailers did offer discounts to entice consumers to shop for gifts early amid supply-chain snarls.

Prices of some categories such as elec-tronics, jewelry and toys are still falling online year over year, Adobe data show.

But tight inventories mean that retail-ers will have less of a need for mark-

downs this holiday season, too. Last month, consumers saw over 2 billion out-of-stock messages online, according to the Adobe report. Ongoing supply-chain disruptions and strong demand will probably keep pushing prices up, according to Pandya.

Among the 18 product categories tracked by Adobe, only books had lower annual inflation last month compared with the 2015-2019 histori-cal average.

Adobe analyzes 1 trillion visits to re-tail sites and over 100 million products.

Alex Tanzi reports for Bloomberg.

SHUTTERSTOCK

The objection comes at a pivotal moment for the Biden administration, with Democratic leaders scrambling to pass the spending package, known at the Build Back Better Act, amid pushback from both Republicans and moderate Democrats.

SHUTTERTOCK

Pfizer reported earlier this month that its pill cut hospitalizations and deaths by 89% among high-risk adults who had early symptoms of COVID-19.

Biden Tax Threatens Climate Goals, Clean-Power Companies Say

Pfizer, US Ink $5.29B Deal for Possible COVID-19 Treatment

Inflation Spreads to Online Retail, Once a Haven of Discounts

A14 dailybusinessreview.com FRIDAY, NOVEMBER 19, 2021 DAILY BUSINESS REVIEW

DAILY BUSINESS REVIEW FRIDAY, NOVEMBER 19, 2021 dailybusinessreview.com A15

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LITIGATION ASSOCIATE

A well-respected regional law firm that has represented businesses in Tampa Bay for decades is seeking a commercial litigation associate to handle a wide range of business disputes and litigation. The ideal candidate will have 2-5 years of sophisticated litigation experience including commercial, construction, and real property litigation. Candidates must have strong drafting and research skills and be self-starting and motivated. This is a partner track position, and a unique opportunity to join a boutique firm with an outstanding culture and strong compensation and benefits package.

To apply for this position, please send your resume to Ann Skalaski at:

ann@millerblowers.com

COMMERCIAL LITIGATION ASSOCIATE

International firm in Downtown Miami seeks a senior commercial litigator with 4-10 years of experience in both federal and state court. Must be a Florida Bar member and possess excellent written, oral communication, and advocacy skills. Competitive compensation and benefits package.

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FAMILY LAW PARALEGAL- FLORIDA

Well-established law firm in Boca Raton is looking for a family law paralegal with a minimum of 5-7 years of experience. If you have less experience than this, please do not apply.You must have a professional demeanor, be articulate, detail-oriented with excellent organizational/proofreading skills and experience with family law cases.In addition, you must be familiar with scheduling and utilizing a calendar; preparing court pleadings; reviewing and preparing discovery responses, in-cluding financial affidavits and compliance with mandatory disclosure; and preparing for depositions and trials.You must be comfortable working with Word, WordPerfect, Outlook and Ado-be.Amicus experience is also a plus, but not a necessity.Compensation will be commensurate with your level of family law experience.The firm provides health insurance after 90 days and you will be eligible to participate in our 401(k) after one year of employment.

Please submit a cover letter with your resume to: taryn@rootpa.com

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by Christine Schiffner

For anyone who has seen Morgan & Morgan’s national TV ads, founder John Morgan’s stance on law firm growth is clear—size matters and big-ger is better for getting clients the best results. But what has enabled much of that growth, Morgan said, is the behind-the-scenes technology that funda-mentally changed the way cas-es were processed in his firm.

Morgan’s vision was to build a “Google-style” operation with technology ultimately trans-forming his company from a law firm to a technology firm. With firm COO Reuven Moskowitz, a separate entity, Litify, was formed in 2016. Five years in, the practice management soft-ware has helped Morgan & Morgan and many of its com-petitors grow their caseloads.

Morgan & Morgan, by the firm’s own account, now em-ploys 801 attorneys and almost 3,000 support staff nationwide. Since the introduction of Litify growth has been up 500 per-cent both in case numbers and total revenue, the firm said without specifying any further.

Morgan & Morgan’s technol-ogy core is located in Brooklyn where about 65 legal tech and digital staff keep Litify running in an almost Silicon Valley-style setting. The result: “Our case numbers grow every year by double digits, but also case val-ues are up, client satisfaction is up,” Moskowitz said. The firm, by its own account, has sold its litigation processing software to 250 other plaintiff firms. And

after a $50 million fundraising round in 2019, had intended to focus on law departments and midsized firms as well.

“The law community is real-izing that technology is unlock-ing value,” said Tony Donofrio, CTO of Veritext Legal Solutions, a legal technology company that has provided digital so-lutions to law firms for more than 20 years. “Now, firms are moving to integration across the board, how they work is all tech-enabled.” The recent law firm evolution is based on see-ing technology as a multiplying factor rather than a cost—firms should reinvest “10-15% of rev-enue in new technology.”

Before Litify “we had a consistency issue,” Morgan & Morgan managing partner Matt Morgan said. He is John Morgan’s son and recalls how thousands of personal injury cases were initially moved from classic filing cabinets to Google sheets. “You can only imagine, how archaic, how difficult it was” to handle thousands of PI cases all over the United States.

With the introduction of its own litigation software, the firm was finally able to evaluate “actionable data points” about personal injury settlements or court proceedings. “If we see 9 times out of 10 that a certain type of case would go a certain way, we could ask a lawyer to work up a case accordingly—and we could do that at scale,” Matt Morgan explained.

“What we can do is to make the process objective, not sub-jective,” John Morgan said. He calls it the “dirty secret” of per-

sonal injury law “that probably 90 percent of all cases are set-tled at the last best offer”—and that is not always the best offer for the plaintiff.

With its cloud-based litiga-tion software, Morgan & Morgan attorneys are now forced to ap-ply consistent standards across personal injury cases dimin-ishing the risk of undervaluing cases at settlement.

As larger firms work through similar technology implementa-tion and their own tech spinoffs and subsidiaries, personal inju-ry firms have long had to lever-age technology to connect with potential clients and generate leads. The further use of prac-tice management software ap-pears to be enabling those firms to better harness and expand those opportunities, providing the scale their size does not.

“Integration matters a lot more when you are smaller,

when you have less resourc-es,” Donofrio said, stressing the need for smaller firms to explore legal tech solutions. The pandemic and remote work have only underscored the urgency for law firms to invest more in remote work technologies.

“I don’t think we couldn’t have gone through it [the pan-demic] as seamlessly without it,” said Shawn Lehocky, CEO of Pond Lehocky Giordano. His firm adopted the Litify case management platform in 2016. “It’s long overdue for our indus-try to move in that direction.”

This software tool has al-lowed him to instantly see if “cases are coming in or not.” He calls the ability to have im-mediate access data points about his firm’s case load “a game-changer” allowing him to make marketing adjust-ments as needed.

The use of cloud-based liti-gation software has led to re-ferrals of cases to other firms. “I now know instantaneously, if the other firm took on the case, if they opened our refer-ral email,’ Lehocky said—and that is ultimately good for the client. “We are dealing with real people and they need help.”

Morgan & Morgan is not the only firm that has developed its own case processing technology. “Acumen, powered by Robins Kaplan—that is the gold stan-dard,” said Stacey Slaughter, a partner and executive board member of Robins Kaplan.

The e-discovery platform streamlines processing of liti-gation documents, but more importantly provides access to experts and trial consultants in the fields of science, financial and business analytics as well as case investigators. “We have a well-oiled machine,” Slaugther said, pointing to a fully digitized litigation process, “our people are top notch.” Robins Kaplan has also provided this platform to other law firms.

With a talent war impacting firms across the United States, legal technology application at plaintiff firms plays an impor-tant role when it comes to re-tention. “When new attorneys come into firms, this is going to matter—kids coming out of law school are not going to look through filing cabinets any-more,” Donofrio said.

Bureau Chief for the National Law Journal in Washington, D.C. Contact me at: cschiffner@alm.com or follow me on Twitter: @CSchiffnerNLJ .

by Victoria Hudgins

Over the years, midsize and large firms have invested in cybersecurity at the behest of their clients. But such de-mands aren’t always being aimed at solo practitioners or small law firms due to their clients and cases typically not set-ting cybersecurity requirements. Still, even with scant cybersecurity aware-ness among their clientele, high-profile attacks and intensifying insurance au-dits could soon make cybersecurity a top priority for small firms.

To be sure, U.S. lawyers have an ethi-cal duty to protect client data. But while that obligation is widespread, clients play a critical role in keeping pressure on lawyers to adopt and maintain cyber-security measures, noted law firm mar-keting consultant and chairwoman of the Pennsylvania Bar Association’s solo and small law firm section Jennifer Ellis.

“They take [cybersecurity] seriously and are properly protecting the data, but I think if you don’t necessarily have peo-ple pushing you to protect data, you may not be as conscientious of it,” she said.

According to the American Bar Association’s 2021 “Legal Technology Survey Report,” of the 425 lawyers sur-veyed, 98% of solo practitioners and

82% of respondents from two- to nine-attorney firms said a current or potential client hasn’t requested a security audit or review of the firm’s security.

Law firm cybersecurity providers said small firms typically don’t field cyberse-curity questions because their clientele largely doesn’t think to request such information. Unlike the financial institu-tions and large companies that flock to Big Law and some midsize firms, many solo practitioners and small law firms cater to consumers who aren’t as well-versed in cybersecurity.

“Where we get a lot of requests is if the [law firm] has a banking client,” said Michael Paul, chief technology officer of law firm and legal department IT pro-vider Innovative Computing Systems Inc. “If they have a client that is in bank-ing or finance, they’re keenly interested in what the law firm is doing. I don’t see that type of request in small law firms.”

Instead, clients of solos and small law firms view cybersecurity as less of a pressing issue and see attorney-client privilege as sufficient to protect data, Paul said. However, Paul argued that such an approach was dangerous, and noted 2016’s Panama Papers as an ex-ample of the massive impact a small law firm’s data breach could create.

“With the Panama Papers, a smaller firm had so much exposure to all this data, and folks aren’t thinking about it,” he said.

Indeed, according to an October Legaltech News article, cybersecu-rity observers said additional Panama Papers and Pandora Papers data breaches stemming from law firms are likely to continue as boutiques assume their small head count excludes them from large-scale cyberattacks.

Despite the inaccurate assumptions some solo practitioners and leaders of small firms hold, data breach aware-ness is slowly growing amongst their cli-entele, cybersecurity consultants noted.

Specifically, the pandemic highlight-ed to some clients the potential for in-creased cyberattacks as lawyers work remotely, said Sharon Nelson, president of digital forensics, cybersecurity and information technology provider Sensei Enterprises Inc.

“The clients knew the law firms work-ing from home were more vulnerable … clients began to figure that out and they started getting worried about cyberse-curity,” Nelson said. “Law firms did too. That’s why many of them upped their game during the pandemic. They con-tinue to ask for recommendations to be secure. That’s a selling point to a client.”

Small law firms are also facing in-creasing scrutiny from cyber insurance providers to adopt additional cyberse-curity measures or risk paying higher premiums or losing coverage, Nelson added.

“Among the smaller firms it’s grow-ing. It’s certainly not the clients, it’s the insurance companies asking,” Nelson said. She added that “it’s impossible” for many small firms to tackle insurance companies’ cyber questionnaires as cur-rently written, and even if they’re able to fill them out truthfully, “the insurance companies won’t like what they hear.”

Insurers’ influence may turn out to be pivotal for small law firms’ cybersecuri-ty. Absent the threat of losing full cover-age, Paul said client pressure may take too long to force small law firms to react.

“That’s setting the baseline standards of what you need to be doing if you want this insurance. I worry if you have indi-vidual, personal clients and end users, I just don’t know how they’ll keep those firms accountable without cyber insur-ance people to step in,” he said.

Victoria Hudgins covers national and in-ternational cyber regulations and legal tech innovations and developments for Legaltech News, an ALM affiliate of the Daily Business Review. Contact her at vhudgins@alm.com.

Morgan & Morgan’s technology core is located in Brooklyn where about 65 legal tech and digital staff keep Litify running in an almost Silicon Valley-style setting.

The Secret to Morgan & Morgan’s Growth? How This ‘Google-Style’ Tech Hub Helps Expand Caseloads

Clients Aren’t Asking Solos, Small Law Firms About Their Cybersecurity. That’s a Problem

Legaltech News legaltechnews.com

A16 dailybusinessreview.com FRIDAY, NOVEMBER 19, 2021 DAILY BUSINESS REVIEW