APPELLATE

Stuart Singer

Boies Schiller Flexner

The Fort Lauderdale attorney won two notable appeals in vastly different areas of the law in cases decided eight days apart in April 2019.

A case before the U.S. Court of Appeals for the Fifth Circuit guaranteed immunity under Texas law to the legal profession in civil suits filed by nonclients if the conduct was within the scope of representation. The nonclients were investors in Allen Stanford's Ponzi scheme who sued Greenberg Traurig, alleging one of its attorneys conspired in the Stanford International Bank fraud.

In the other case, the Florida Supreme Court allowed Florida Power & Light Co. to recover $130 million from customers for remediation work at its Turkey Point nuclear power plant. High-salinity water has traveled from unlined cooling-water canals to the surrounding Biscayne Aquifer, the region's primary source of drinking water. The state Office of Public Counsel objected to a Public Service Commission decision favoring the state's largest utility, but the high court affirmed.

Describe a key piece of testimony, evidence, ruling or order in your case and how it influenced the outcome: At first, one might not see anything in common between the Florida Supreme Court's approval of the Public Service Commission's ruling that a utility could properly obtain recovery for certain prudently made environmental expenditures and the Fifth Circuit's affirmance of dismissal of a class action against a law firm.

In both cases, however, a key was that the decisions represented sound public policy. To be sure, in both, the position I advocated was the right result under the law — a statutory analysis of environmental cost recovery in one and an Erie-determination of Texas law in the other. But in both, I argued and the courts clearly recognized that the legally required outcome was also the right policy outcome.

Protecting the environment is not limited to purely preventative measures but includes prudent remediation costs. Attorneys who do transaction work should be protected from legal claims by nonclients just as much as us litigators. These decisions reminded me that good law and good policy travel hand in hand and produced unanimous results in both state and federal appellate courts.