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Litigator, author, and legal analyst, Florida attorney, Kendall Coffey has become an eminent legal practitioner and scholar over his 35-year career. From his unprecedented experience representing the Gore Campaign in the 2000 Election in Florida, to writing the quintessential book on Florida mortgage law, “Foreclosures in Florida,” LexisNexis (2008), the breadth of his knowledge, professional insights, and invaluable expertise are shared with readers within these blog entries. From Kendall Coffey’s words one can recognize the machinations of spin in legal proceedings and see past the dramatics and bluster to the precise issues at hand and their implications. 


 

Recent Blog Posts

Kendall Coffey on The Lars Larson Show – March 9th, 2017

Posted by on 12:09 am in Media Appearance: Elections and Courts with Kendall Coffey | Comments Off on Kendall Coffey on The Lars Larson Show – March 9th, 2017

Kendall Coffey is a founding Partner at Coffey Burlington, PL, former U.S. Attorney, and frequent guest legal analyst on international television networks. He is also an adjunct professor at University of Miami School of Law. Kendall Coffey joined the Lars Larson Show on March 9th, 2017 to discuss the recent lawsuits against President Trump’s Executive Order restricting travel from six Muslim-majority countries. Lars Larson: Mr. Coffey, thanks a lot for joining us again. Tell me what you think of these lawsuits and if they will find any traction in the federal courts. Kendall Coffey: Well, I think it’s going to be so much tougher this time. The basic theme of the lawsuit seems to be, “Well, this is just another version of the original executive order that was found invalid.” If it looks like a duck, walk likes a duck, quacks like a duck, it’s, after all, a duck. As people read this, they’ll see that in legal terms, at least, it’s a bird of a different feather. It’s more thoughtfully drafted. It clearly avoids the major legal pitfalls of the original executive order, which was, you will recall, a statement prohibiting green card holders from the 7 countries. This problem was something that I think most analysts thought would be very difficult to overcome in the original order. This order is not only thoughtful in the way it’s drafted, but it explains some of the concerns of each of the 6 remaining countries that are subject to this. Just to put in context, what the executive order focuses on, it states that there is a need to deal with countries where we don’t trust their informational processes to tell us who is coming to this country from their countries. It’s very specific about that. It says that it requires a process by the major agencies, such as the Department of Homeland Security, to see if these countries can correct their current informational concerns, and at the same time, it calls upon Homeland Security and other agencies to examine the information we’re receiving from all the other countries to make sure that we go through a delivered process and see if there are other countries as well as the 6 that are not giving us reliable information about their citizens when their citizens try to come to this country. I don’t think that, fairly read, this document is subjected to a strong legal challenge, but the challenges continue, and I certainly won’t predict what may happen. Could there be a federal district court that rules for the challengers? Maybe. But I think if this gets to an appeals court, they’re going to have to look at this document and apply the many decisions of the Supreme Court, which says, basically, that the president has the right to do this order in the name of national security. Lars Larson: Shouldn’t we be taking a hard look at almost everybody, whether they’re a green card holder or not at some level, and saying, Are we getting the information we need? Kendall Coffey: Well, that’s what this order requires, and not to read any length, but it talks about the foreign governments’ willingness or ability to share or validate important information about individuals seeking to travel to the USA. I think that...

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The Foreign Sovereign Immunities Act

Posted by on 10:48 pm in Blog Entry: Elections and Courts | Comments Off on The Foreign Sovereign Immunities Act

The Foreign Sovereign Immunities Act (“FSIA”) renders foreign states (as well as the political subdivisions, agencies, and instrumentalities thereof) immune from suit in U.S. federal and state courts in most circumstances. The FSIA embraces the restrictive theory of sovereign immunity, which confines immunity to a foreign country’s public acts and excludes from immunity the private/commercial acts. Congress enacted FSIA to address a “modern world where foreign state enterprises are every day participants in commercial activities.” Samantar v. Yousuf, 560 U.S. 305, 323 (2010).  Section 1605 creates exceptions to immunity in limited circumstances set forth in 28 U.S.C. Section 1605. Some of the more frequently litigated exceptions include when the foreign state has explicitly or implicitly waived immunity, and when the subject of the lawsuit is the foreign state’s commercial activity involving the U.S. In a recent court decision addressing the commercial activity exception, one federal appeals court allowed a U.S. citizen to sue the railway service owned by the Republic of Austria for an accident that occurred in Austria. The court found that because the Austrian railway sold tickets in the U.S., this constituted commercial activity with the U.S. Sachs v. Republic of Austria, 737 F.3d 584 (9th Cir. 2013) (en banc). This decision, which is binding in certain western states such as California, appears to expand the commercial activity exception and thereby reduce the immunity of foreign governments in some situations. Significantly, foreign sovereign immunity does not protect a foreign official sued for acts performed in an official capacity because the definition of “foreign state” does not include a “foreign official.” See Samantar v. Yousuf, 560 U.S. 305 (2010). In that case, the Supreme Court held that “an individual foreign official sued for conduct undertaken in his official capacity is not a ‘foreign state’ entitled to immunity from suit within the meaning of [FSIA].” Id. The Court emphasized that its holding was narrow and that the official may still invoke foreign sovereign immunity under the common law, including the immunity that applies to a foreign head of state. Id. at 325-26. Also important is the fact that to be sued in this country, the foreign official must have connections with the U.S. sufficient to constitute “minimum contacts”. Along with other exceptions, foreign sovereign immunity does not prevent U.S. courts from having jurisdiction over foreign governments for personal injury or death resulting from acts of...

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When Sports and the Law Collide

Posted by on 10:42 pm in Blog Entry: Spinning the Law | Comments Off on When Sports and the Law Collide

When most of us catch the game on TV, we aren’t really thinking about all the legal issues surrounding sports. We’re just hoping to unwind with our favorite team. In reality, however, the law extends into athletics just as much as anywhere else. For sports-loving, would-be lawyers, that makes for a great opportunity. After all, someone has to represent those players, team owners, concession stand workers, administrators, and others when problems arise. In his description of life as a sports lawyer, professor, and director of the National Sports Law Institute, Matthew J. Mitten recounts a variety of cases he’s dealt with: representing a county during litigation surrounding an NFL club’s relocation; providing legal advice to a baseball player wanting to level a medical malpractice suit at his former team; and more than one situation sparked by intellectual property law. Mitten’s tasks run the gamut from registering trademarks to providing information about liability. He’s served sports physician organizations, coaches, referees, sports facility operators, sports broadcasters, and more. He’s had to delve into his knowledge in a variety of areas of law, including contract, labor, and intellectual property law. Sports law isn’t just for professional teams, either. Schools—both high schools and colleges—face legal issues as well. Here are just a few in recent times: College athletes wanting to unionize. The National Labor Relations Board was faced with a case involving Northwestern University scholarship football players wanting to unionize back in 2014. While initially finding in favor of the athletes, the Board stated the following year that they would not uphold their previous decision. An appeal to federal courts is still a possibility. Title IX and gender equity. Schools across the country struggle to keep up with complaints regarding Title IX issues, particular in terms of offering equal opportunities to both boys and girls when it comes to sports. Since the mid-90s, there have been about 125-150 complaints regarding Title IX infringement filed with the OCR, with half going to settlement and half ending up in federal courts.  Serving athletes with disabilities. Since the Disabilities Education Act, schools across the country have made an effort to make athletics available to students with disabilities, with varying results. In 2013, the United States Department of Education, under Arne Duncan, released a statement on schools’ legal responsibilities to provide for disabled students when it comes to athletics. Schools are required to either allow disabled students to participate with their peers or else provide participation opportunities through adapted programs. As sports law continues to develop, it provides an opportunity for those interested in a variety of both legal and athletics studies to find the places where these two areas intersect. There are plenty of situations requiring legal advice to keep the international delight with sports moving along in a fair and equitable way. Sports lawyers and others serving the athletics industry are key to making it easy for anyone to sit down and enjoy watching the game—not to mention playing in...

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Could Pokemon Go Cause You to Break the Law?

Posted by on 9:42 pm in Blog Entry: Spinning the Law | Comments Off on Could Pokemon Go Cause You to Break the Law?

Pokemon Go is one of the first augmented reality games to gain national notoriety and be played avidly by the general public. Pokemon Go lays down its own content over a Google Maps program. This allows the players to walk around through the Pokemon Go map on their phone while walking around in the real world. In the Pokemon world, Pokemon wander around, and players need to find and capture them. There are also hotspots where players can acquire items or where Pokemon are more likely to be found. There are also gyms where players can take their Pokemon to fight. All of these reflect locations in the physical world from bus stops to coffee shops to churches. While the game has gotten lots of players out of the house and walking around their neighborhoods, the popularity of an augmented reality game like Pokemon Go raises both safety and legal issues. Police officers across the country have been issuing statements reminding people to exercise their common sense while playing the game. Don’t run into people on the sidewalk. Remember that traffic exists in the real world. Do not operate any kind of vehicle or bicycle while using the app. It’s also important to note that the game does not discriminate between public and private property when it places Pokemon and other game objects. It is important that the users and parents of young users are aware that this boundary very much exists in the real and legal world. Pokemon have been placed in businesses, churches, and private residences. “Catching Pokemon” is not a reason to enter into private spaces without permission. It is especially important to make sure children understand this boundary. Police are concerned about potential conflict or injuries from being mistaken for an intruder, as well as the repeated trespassing reports. It is also important to note that the user “assumes liability related to any property damage, personal injury or death,” including violations of laws while playing the game. This is included in the agreement users sign to begin playing the game. Nintendo, etc. are not liable for actions users take during the game. Another important reason to be aware during the game is that users can add lures to the game. Users have been known to set a lure, attract other users, and then rob...

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Will Omar Mateen’s Wife Face Charges for Failing to Stop Her Husband’s Shooting Spree?

Posted by on 9:06 pm in Blog Entry: Criminal Cases | Comments Off on Will Omar Mateen’s Wife Face Charges for Failing to Stop Her Husband’s Shooting Spree?

Will Omar Mateen’s Wife Face Charges for Failing to Stop Her Husband’s Shooting Spree?

Omar Mateen’s wife, Noor Salman, may face criminal charges due to her possible involvement with her husband’s assault on the Pulse nightclub in Orlando, FL. A federal grand jury is reviewing the incident and Salman’s suspected involvement in the attack. Mateen killed 49 people and took hostages during his attack on the gay nightclub. Kendall Coffey, former southern Florida U.S. Attorney, explained that the charges Salman might face would increase in their severity in relation to the grand jury’s decision about the level of her involvement in the crime. “If she drove him to get ammunition or to case the crime scene, I think that’s enough to warrant very serious charges if she had requisite knowledge of the crimes,” Coffey said. FBI officials have reported that Salman once drove her husband to the nightclub so that he could study its layout. She also joined her husband when he purchased a holster and ammunition for his shooting spree. The FBI investigation suggests that Salman is suspected to be her husband’s accomplice in what has been the worst mass shooting in U.S. history. Salman was born in San Pablo, in the San Francisco Bay Area of California, and graduated from high school in 2004. Her parents and her husband’s family, living in the Palestinian territories, arranged her first marriage. She met her second husband, Omar Mateen, online, and they married in 2011 and have a 3-year-old son. If Salman knew that a crime was going to be committed, she could be guilty of intentionally hiding the knowledge of a felony and aiding and abetting a crime. Further investigations by the FBI and grand jury could determine that Salman is guilty of conspiracy to commit and act of terrorism. It was reported on CNN that Mateen and his wife exchanged text messages during the assault. A law enforcement officer reported to CNN that the text occurred at about 4 a.m. when Mateen was hiding in the bathroom at the gay nightclub. Salman responded in a text that she loved him. Mateen’s first wife alleges that she was the victim of abuse during her marriage to the shooter. If Mateen threatened Salman in any way, she could argue that she was operating under duress and was too afraid to call the police. Her marriage alone won’t protect her from criminal charges. “If the authorities have evidence beyond reasonable doubt that she did everything knowing what he was going to do, then I think she will face very serious criminal charges,” Coffey...

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Could Robots Replace Lawyers?

Posted by on 9:55 am in Blog Entry: Criminal Cases | Comments Off on Could Robots Replace Lawyers?

Could Robots Replace Lawyers?

Could robots replace lawyers as the most efficient and unbiased keepers of the law? Science fiction has posed this question for decades, but now the question is entering the real world. In fact, one British study predicts that robots will replace lawyers by 2030! Why would you want a robot lawyer? The perceived benefits of a robotic lawyers largely stem from the benefits that we project onto AI and robots in cinema: they can be pragmatic, incorruptible, and more efficient than any human lawyer could possibly dream of being. That warm human touch and compassion is missing, of course, but the comparative flawlessness that computers employ is certainly attractive in a legal case. And in fact, there are many potential benefits of a robo-lawyer: Document review can be automated through predictive coding. Human lawyers can work with programmers to make robo-lawyers sufficiently accurate at predicting whether or not a legal case is relevant for a law firm. Document and case management has been automated for years and already allows lawyers to fill out automated templates, perform billing tasks, and many other clerical tasks. The clerical realm might be where machines shine the brightest. Computers can also be trained to perform some levels of legal research. While the reasoning of a computer is limited in some respects, simple queries (like you might request of Siri or Cortana on your phone) can be easily and quickly answered. So, when can I expect to be represented by a robo-lawyer? If you’re expecting a robotic lawyer in the actual courtroom, then you’ll have to be patient. However, robo-lawyers that simply assist real humans are already among us! One example is ROSS. According to The Washington Post, one of the country’s largest law firms, BakerHostetler, has “hired” the first “robot lawyer” to assist with bankruptcy cases. ROSS has been called “the world’s first artificially intelligent attorney.” But don’t think of ROSS as a physical robot with a metal body: it is a complex program accessible through a computer and billed as a subscription service. Still, it’s a start! What’s more, a 19-year-old has also created a free robot lawyer that has already appealed $3 million in parking tickets. One simply has to sign up and have a conversation with the robot to see if there are any ways that a parking ticket can be appealed. It works off of conversations and pays attention to specific keywords, the order of words, pronouns, and more, which makes it incredibly user-friendly. So what is the likely future of robot lawyers? Ned Gannon, Co-Founder and CEO of eBrevia put it best in a Bloomberg law article: “In twenty years, a machine will help analyze data, but you will still be hiring a...

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The Future of 3D Printing, Intellectual Property, and Their Intersection With The Law

Posted by on 10:13 am in Blog Entry: Spinning the Law | Comments Off on The Future of 3D Printing, Intellectual Property, and Their Intersection With The Law

The Future of 3D Printing, Intellectual Property, and Their Intersection With The Law

3D printing technology is in a fledgling state, though it has already raised many ethical and moral dilemmas. What can you print with a 3D printer? Guns? Illicit drugs? Can you print anything? Also, who controls the designs for 3D printed content? Who should own those and distribute them? These are all things that the law can answer, given time. Unfortunately, this makes answering questions about the future of 3D printing, intellectual property, and their intersection with the law difficult to hypothesize. What will the future of 3D printing laws will be, based on the current landscape? A few brave souls have attempted to answer some of these questions. In a recent YouTube video on PBS Idea Channel, host Mike Rugnetta spoke with Michael Weinburg, General Counsel and head of litigation at Shapeways, a 3D printing company. During the interview, the two spoke about the various issues concerning 3D printing technology and implementation, especially as they intersect with intellectual property and laws. 3D Printing Community Weinburg notes that the 3D printing community is currently comprised of the following groups of people: The makers, who come up with ideas and like the challenge of design. They are engineering-oriented people. Designers, who have had an awesome idea for a thing and want to use 3D printing technology as a means to create their vision. Outside of these two large groups, there are also smaller cliques like educators (who aim to use 3D printing in the classroom as an engaging way to teach science, engineering, and math), and lawyers, who are concerned with the future of 3D printing legislation and regulation. Copyright Distinction: Functional vs. Non-Functional The current state of 3D printing laws revolves around copyright violations and patent infringements. When determining copyright violations for 3D printed objects, the first question one must ask is: is this object functional or non-functional? A functional object serves a purpose (like a door knob or a part of your car’s engine), while a non-functional object might be a piece of art. Functional objects are categorically not subject to copyright laws, while non-functional objects can be copyrighted. That said, any object (even a functional object) can be protected by a patent. Embrace 3D Printing! In defense of embracing 3D printing technology on a widespread scale, Weinburg explains the process that the music industry used to approach MP3s when they first hit the market. This faulty strategy, he explains, caused the music industry to alienate many of their customers and eventually resulted in giving in to their demands: first, they sued all of their customers for downloading MP3s, then they put on digital locks to their music (which were easily broken), and then they finally embraced MP3 technology and sought to serve the market that obviously exists for digital music. This is important for the future of 3D printing design and law: people will find a way around restrictions to their use of this new tech, so it should be designed from the start to be easily used by a wide variety of users. Serve the market! The Importance of Legislation When a case is brought before a judge that is related to 3D printing, the first question they will ask is: what is the norm in the community? Determining the norm in a community is the...

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Why Is Online Harassment Legislation Still Not A Thing?

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Why Is Online Harassment Legislation Still Not A Thing?

It is hard to imagine life without the Internet in 2016. While the Internet has become a huge staple of modern life, laws surrounding its use haven’t quite caught up with our rapid technological leaps forward. One question that many have in this day and age is: why is online harassment not prosecuted in the same way that harassment and assault are in the real world? Why hasn’t the law caught up with technology. In their 2014 report Online Harassment, Defamation, and Hateful Speech: A Primer of the Legal Landscape, Alice E. Marwick and Ross Miller of Fordham University do a good job of explaining just why online harassment, defamation, and hate speech are particularly troublesome to create legislation for. Some of their main points include: Section 230 of the Communications Decency Act provides Internet service providers (ISPs), such as social media websites, blog hosting companies, etc., with broad immunity from liability for user-generated content. Limited resources tend to cause law enforcement personnel to prioritize other cases instead of Internet-related ones. The medium of the Internet can make prosecution tricky. For example, if a crime is committed between two people who live in different states or countries, which laws should be applied? For online statements to qualify as defamatory, they must be empirically false instead of simply a matter of opinion. This makes specific language crucial and often makes filing for defamation tricky. Internet speech is protected under the First Amendment. As a result, state laws regarding online speech are written to comply with these protections, requiring fighting words, true threats, or obscene speech (which aren’t protected). Therefore, many offensive online comments are actually protected speech. Beyond those difficulties, there are issues where the rubber meets the road: enforcing the law. Law enforcement and legislation are notoriously sluggish when it comes to keeping up with rapid advancements in technology. It is incredibly easy to find anonymity on the Internet today, which can sometimes make proving that one party is the culprit in a case rather dubious. Those concerned with privacy would be huge opponents of bills like this because of the technology required to actually enforce them. If you’re a victim today, ultimately you can’t do a whole lot beyond actually reaching out to social media channels or online media where these types of message are posted. However, if the messages do not violate that website’s terms of service, the message will most likely stick around, and the user will not be banned or have their account removed. In fairness, the current legal system isn’t a complete failure for victims of cyber crimes. However, filing a case and seeing it through to completion in these situations is often very expensive, time-consuming, and emotionally draining, and as a result many choose not to prosecute if they find themselves in a troublesome situation. As we become more and more familiar with digital technology, history suggests that we will eventually see a watershed moment and a landmark decision that will lead to digital-focused legislation. But for now, we must simply wait and...

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San Francisco Hopes to Regulate Airbnb, HomeAway Rentals

Posted by on 9:06 am in Blog Entry: Spinning the Law | Comments Off on San Francisco Hopes to Regulate Airbnb, HomeAway Rentals

San Francisco Hopes to Regulate Airbnb, HomeAway Rentals

If you thought the housing situation in San Francisco was bad already, then you won’t be surprised to learn that the short-term-rental market in San Fran might get a little worse too. Or better, depending on your perspective. A proposed amendment to a current San Francisco law would impose regulations on Airbnb, HomeAway, and other types of private vacation rental services. The regulations would be based on the laws of the areas that the rental properties are located in. The law states that Airbnb, HomeAway, and others would be subject to the same building regulations as other similar companies in the same jurisdiction. So for the purposes of San Francisco, the companies would have to abide by San Francisco regulations. Platforms that don’t follow this mandate could faces fines of up to $1,000 a day per listing as well as misdemeanor charges against them. “Unless the hosting platforms have a role in enforcement, enforcement is not going to happen,” said Supervisor David Campos of San Francisco. “They have to have some skin in the game.” Airbnb, HomeAway, and others are quickly becoming a standard for some travelers who seek cheap lodging accommodations on their travels. It’s quite rational that the law of the land would catch up with the ways of the people. One might argue that Airbnb is feeling the heat and actively making attempts to save face, as they may fear potential blowback from some of their properties in San Francisco that don’t meet the city’s regulations. In an unlikely move to do just that, Airbnb recently began talks with the Service Employees International Union (SEIU) for a potential alliance. Why does the move seem bizarre? The SEIU has been one of the champions behind $15/hour minimum wage laws, which could end up costing Airbnb a lot of money if the wage were implemented throughout the country. It will be interesting to see how this proposed law turns out, as it could easily set a precedent for other major metropolitan areas across the...

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Florida Bar Results Reveal Poor Performance on First Time Bar Exams

Posted by on 9:08 am in Blog Entry: Elections and Courts, Blog Entry: Spinning the Law | Comments Off on Florida Bar Results Reveal Poor Performance on First Time Bar Exams

Florida Bar Results Reveal Poor Performance on First Time Bar Exams

The dreaded Bar Exam. Even for those unacquainted with the legal profession, pop culture has taught us that the Bar Exam is to be feared and painstakingly prepared for. But for those studying to become lawyers, this reality is all too real. A recent study from the Florida Board of Bar Examiners shows that Florida’s law school students do quite poorly on their Bar Exam the first time through. Even though these aren’t first-time test takers, the results are staggering and show just how hard taking the Bar Exam can be. Here are a few percentages for several Florida universities’ law students on their first attempt at the Bar Exam: Florida Coastal–32.7% Barry University–35.9% University of Florida–56.3% University of Miami–53.1% Florida International University–84.6% Nova Southeastern University–75.0% While not all schools performed poorly (another shout-out for Florida International University and Nova Southeastern University!), the data seems to show one common trend: the larger the testing group, the poorer the results. Does this correlate to the size of a cohort or with class sizes? Only time or another exhaustive study can provide us with the answer. Why is the Bar Exam so difficult? The results of this study, and many others, beg the question: why exactly is the Bar Exam so difficult? These are some of the reasons why students wind up doing very poorly, or even failing, their Bar Exams and and how you can avoid some common pitfalls. A simple rule of thumb to follow: you’ll pass the exam with your strengths, and you’ll fail with your weaknesses. Instead of spending a lot of time trying to turn your weaknesses into strengths (often, this is impossible or at least very unlikely), devote time to refining your strengths so that you know you’ll do your best on these sections! Stress is killer: the stress (and intimidating aura) surrounding the Bar Exam can cause students to get flustered and anxious. This can create a number of problems, including causing students to attempt to cram too much information (effectively learning nothing) and literally pushing their bodies to their limits. This naturally puts students off their A-game. While you might know the law in and out, you may not have the proper skills of showing your work and making a convincing argument. These are both skills that any successful lawyer will need to have. You don’t manage your time wisely. The Bar Exam has timed sections, and if you can’t work with those strict guidelines, you will surely fail. Studying time management skills is a great way to increase your chances of...

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