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2011 Fall Newsletter

Volume 12, Issue 4

In This Issue:

In the Sunshine State, “Shade” is Very Limited

by Kevin Hennessy & Jennifer Cowan

Local governments, including City, Counties, and Special Districts, are subject to the Sunshine Law, which provides that a public body must meet in the public at a properly noticed meeting and take minutes to consider any foreseeable matter that may come before that public board.  However, section 286.011(8) of the Florida Statutes, provides a limited exemption for a public body to meet privately with its legal counsel and chief administrative officer to discuss “pending litigation to which the entity is presently a party,” so long as the local government strictly complies with all of the statutory requirements.  These requirements include, but are not limited to, the local government’s attorney advising the public body at a public meeting that he or she desires advice on the litigation, the private discussions are limited to settlement negotiations or strategy sessions related to litigation expenditures, a court reporter is present at the private meeting and a transcript is made which becomes part of the public records at the conclusion of the litigation, and notice is provided which identifies the time/date of the private session and the names of the attendees.  These private meetings between the public board and its counsel pursuant to section 286.011(8) of the Florida Statutes are commonly referred to as “Shade” meetings.

So can a local government discuss pre-suit mediation in a Shade meeting?  LLW has consistently advised local governments that the statute’s plain language requiring pending litigation means actual filed suit, imminent or anticipated litigation is not sufficient. This position has been supported by the AGO and now a Palm Beach County Circuit Judge has agreed finding against the City of South Bay.  Specifically, the Palm Beach County Court ruled that a private meeting between the City of South Bay and its legal counsel regarding pre-suit mediation was not exempt under section 286.011(8) of the Florida Statutes and that such a meeting was in violation of the Sunshine Law.

For more information on the Sunshine Law and/or Shade meetings, please contact Kevin Hennessy or Jennifer Cowan.

Greenwashing: What Your Clients Should Avoid

By Michelle Diffenderfer

There is no doubt that eco-friendly products have an edge in our eco-conscious society. We are drawn to products that make us feel good about buying them. Put simply—green is good for business. Nonetheless, consumers are becoming skeptical of these eco-friendly product claims.  The term “greenwashing” has been coined to refer to the phenomenon of eco-exaggeration about the environmental practices of a company or the environmental benefits of a product or service. The federal government, state governments, and consumers are taking action to combat those persons and entities that engage in exaggerated marketing of so called green products and practices.

The Federal Trade Commission (FTC) is revising its “Green Guides” a year earlier than planned owing to the rise in consumer complaints about greenwashing. The Green Guides detail what companies that engage in eco-marketing should do in terms of substantiation, specificity, general claims, seals of approval, and eco-seals certification.

Individuals and companies that engage in greenwashing may also face legal liability under state laws. Florida has adopted the Florida Deceptive and Unfair Trade Practices Act, which prohibits unfair or deceptive acts or practices in commerce. Additionally, Florida has adopted laws that prohibit all misleading advertisements and allows plaintiffs to recover both attorney fees and punitive damages. Further, it is likely that plaintiffs could bring common-law claims for greenwashing, including, among others, fraudulent misrepresentation and breach of warranty claims.

The FTC has increased its enforcement activities regarding the advertising of green products. In August 2009 the FTC charged four companies selling clothing and other textiles with deceptive labeling and adverting. The FTC alleged that these companies made false and unsubstantiated “green” claims. The companies entered into settlement agreements that bar them from making the offending “green” claims unless the claims are true, not misleading, and substantiated. In early 2010, the FTC sent letters to 78 well-known companies with warnings that their respective advertisements could subject them to a public enforcement action. The FTC warning letters arose over the companies’ alleged marketing practices of advertising their products as “bamboo.”  It seems clear that the FTC will continue to use the FTC Act and the Green Guides to bring public enforcement claims against companies engaging in greenwashing.

Companies may also face civil litigation from private parties such as consumers and competitors under federal and state law. Several recent cases demonstrate how federal and state consumer protection laws are being applied to claims of alleged greenwashing. In 2009 a consumer alleged that a hybrid vehicle only obtained half of the advertised 51 miles per gallon advertised by Honda.  A California appellate court held that the plaintiff could bring a claim against Honda under state law for unfair and deceptive advertising as to its hybrid vehicle.  Another case involved a consumer class action lawsuit over alleged greenwashing pertaining to the common cleaning products Windex and Shout.  The products contained a trademarked “Greenlist” seal and stated that “Greenlist is a rating system that promotes the use of environmentally responsible ingredients.” The court allowed the case to proceed to determine whether the use of the “Greenlist” seal, which appeared to be a third-party rating seal but was actually an internally created marketing seal, was misleading advertising.

Faced with skeptical consumers and harmful legal consequences companies should be vigilant about avoiding greenwashing.  Lewis, Longman & Walker focuses on these issues and can assist you with any questions you have. For more information, please contact Michelle Diffenderfer.

The Seminole Tribe and Water Rights

By Stephen Walker

The Seminole Tribe of Florida is a federally recognized Indian Tribe pursuant to the Indian Reorganization of 1934.  In order to effectively govern themselves, the Seminole Tribe drafted the Tribal Constitution and established the Tribal Council and Seminole Tribe of Florida, Inc.,  which established the frame work for the Seminole Tribe to become one of the most successful tribal business owners in the world.  However, it was ultimately the manner in which the Seminole Tribe utilized its sovereignty and established local partnerships that resulted in its success.

The Seminole Tribe recognized that in order to achieve its goals it needed to create meaningful relationships with its neighbors.  In 1987, after decades of disappointment and controversy, the Seminole Tribe entered into a water settlement agreement with state and federal governments.  The 1987 Water Rights Compact defined the rights and obligations of the Seminole Tribe pertaining to water and the environment.  However, while the Water Rights Compact gave the Seminole Tribe the right to water, the Seminole Tribe still had to create a system that actually provided water to its land.  Therefore, the Seminole Tribe seized every opportunity to parlay its water rights into actual water.

For example, the Seminole Tribe entered into 14 landowner agreements between 1987 and 1999.  A landowner agreement is an agreement permitted by the Water Rights Compact allowing the Seminole Tribe to enter into agreements with landowners that are impacted by Tribal operations. One notable landowner agreement with U.S. Sugar Corporation  resulted in strategically locating water wells along the land border U.S. Sugar shares with the Seminole Tribe.  Another such landowner agreement with the South Florida Water Management District and several private landowners resulted in the establishment of water quality/quantity standards for water control structures located upstream from Seminole Tribe lands.  Prior to entering into this landowner agreement, the water control structures were operated in such a manner that either diverted water from tribal lands or resulted in the flooding of tribal lands.

Additionally, the Seminole Tribe has furthered its water interests by becoming an active partner in the Comprehensive Everglades Restoration Plan.  Everglades Restoration requires, in part, infrastructure to clean and manage water before it flows into the Everglades.  Because the water that flows into the Everglades passes through the Seminole Tribe’s Big Cypress Reservation, it agreed with the federal government to share the costs of  constructing a complex water conveyance and basin management system that conveys water for both the Seminole Tribe and  Everglades Restoration.

Therefore, by identifying and understanding the needs and concerns of its neighbors, the Seminole Tribe has been able to secure access to water for its lands and receive assistance to construct a water management system that both helps the Tribe and Everglades Restoration.  Additionally, the Seminole Tribe, through its efforts, has established a relationship with Florida that requires it to consider how changes to the Regional Water Supply will impact the Tribe’s water rights.  These are just a few examples of how the Seminole Tribe has worked to obtain greater access to water.

Lewis, Longman & Walker assisted the Seminole Tribe with expanding their contractual water rights into tangible amounts of water and is looking to work with Tribes in other states to do the same. For more information, please contact Stephen Walker.

Lewis, Longman & Walker, P.A., Relocates to Bank of America Building in Tallahassee

The Tallahassee office of Lewis, Longman & Walker, P.A., has a new home as of August 1, 2011 at the Bank of America Building located at 315 South Calhoun Street, Suite 830, in Tallahassee, Florida.

“We are thrilled to provide such a first-rate working environment and premier location for the Lewis, Longman & Walker family and our clients.” said Kevin S. Hennessy, managing shareholder of the firm.

LLW Receives 2011-2012 “Best Law Firms” Ranking by U.S. News Media Group and Best Lawyers®

Lewis, Longman & Walker, P.A. recently received the 2011-2012 “Best Law Firms” Ranking by U.S. News Media Group and Best Lawyers®. The firm’s Jacksonville Tallahassee and West Palm Beach offices received Tier 1 rankings the Environmental Law, and the Tallahassee office also received Tier 1 Rankings in Employee Benefits (ERISA) Law, and Tier 2 Rankings in Environmental Litigation. Rankings are determined by a combination of hard data, peer reviews and client assessments. The first-tier rankings are featured in the “Best Law Firms” standalone publication, which is being distributed to 30,000 general counsel and in digital format to 58,000 private practice lawyers worldwide.

In addition to receiving this “Best Law Firm” ranking, below is a list of Lewis, Longman & Walker shareholders that have been named “Best Lawyers” by U.S. News Media Group and Best Lawyers®.

  • James W. Linn – Employee Benefits (ERISA) Law; Labor & Employment Law
  • Wayne E. Flowers – Environmental Law; Environmental Litigation; Water Law
  • Terry E. Lewis – Environmental Law; Environmental Litigation
  • R. Steven Lewis – Environmental Law; Environmental Litigation
  • Anne Longman – Environmental Law; Environmental Litigation
  • Stephen A. Walker – Environmental Law; Environmental Litigation
  • Brenna M. Durden - Real Estate Law; Real Estate Litigation

Best Lawyers® is the oldest and most respected peer-review publication in the legal profession. The 2012 edition of The Best Lawyers in America includes 41,284 lawyers covering all 50 states and the District of Columbia and is based on more than 3.9 million detailed evaluations of lawyers by other lawyers. Best Lawyers® lists are excerpted in a wide range of general interest, business and legal publications worldwide, reaching an audience of more than 17 million readers.

For more information on “Best Law Firm” rankings, visit http://bestlawfirms.usnews.com. For more information on “Best Lawyers” rankings, visit http://www.bestlawyers.com/default.aspx.

LLW Named to Fortune’s Top-Ranked Law Firms

More than half the firm has received Martindale-Hubbell highest ranking

More than 250,000 law firms around the country are rated by Martindale-Hubbell, the publishing company that has connected attorneys to clients for more than 140 years. But only a small fraction can be named the best of the best.

Lewis, Longman & Walker has offices in Jacksonville, Bradenton, Tallahassee and West Palm Beach, and is among 966 law firms named to Martindale-Hubbell’s first-ever Top Ranked Law Firms. To make the list, at least 10 percent of a firm’s attorneys have to have achieved an AV Preeminent rating. That rating — the highest Martindale-Hubbell awards to attorneys — is the highest level of professional excellence.

At Lewis, Longman & Walker, more than half of the attorneys representing the firm have achieved an AV Preeminent rating.

The Fortune issue featuring Lewis, Longman & Walker and other top-ranked firms, is expected to reach its 4.4 million readers on Dec. 26.

Lewis, Longman & Walker has been helping shape Florida’s future since it was founded in 1994. It’s a firm that is more than just lawyers. It’s a firm led by engineers, scientists, planners, mediators and past regulators who know government, and know business. This experience allows them to craft solutions that work. It’s website can be found at www.llw-law.com.

LLW Shareholder Brenna Durden Accepted into Leadership Florida Class XXX

Acting Like a Leader: Getting Things Done

Attorney Brenna Malouf Durden opens doors and creates progress by doing

He’s not quoted much, but John Quincy Adams – the fifth president of the United States – once said that “if your actions inspire others to dream more, learn more, do more and become more, you are a leader.”

Leadership by action: Simple to say, but not as simple to implement. Yet, that’s the style of leadership that drives every single day for Brenna Malouf Durden.

A shareholder with Lewis, Longman & Walker, and named in September to the 30th annual class of Leadership Florida, Durden rarely becomes involved with an organization without looking to both act and lead. She is a chair for regional initiatives for the Urban Land Institute’s North Florida District. She recently chaired the highly visible Speaker’s Bureau for the Jacksonville Chamber of Commerce’s “Vote No on Amendment 4.” And that’s just a start.

With ULI, Durden helped to bring together 300 leaders — including then Gov. Charlie Crist — to create a vision for the next 50 years of Florida’s First Coast. She continues to promote long-term regional goals like economic development, transportation, and sustainable development patterns, all essential in creating a foundation for a robust, high quality of life for Northeast Florida.

Durden wants the State to transition away from a dependence on a development-based economy. She also wants to encourage other leaders to implement measures needed to support a new Florida economy.

Durden’s leadership by action efforts were recognized in Jacksonville as early as 1998, becoming a member of the Leadership Jacksonville class there. That was after serving a term as president of the Northeast Florida Planning & Zoning Association.

Not long after, Durden turned some of her focus to Jacksonville Beach’s history and the city’s pride in its diversity. She helped to save the historic first African-American schoolhouse to serve the Beaches area. She has since served as pro bono legal counsel for the Rhoda L. Martin Cultural Heritage Center through the Jacksonville Beach Elementary Preservation Fund Inc. Rhoda Martin, known affectionately as “Mother Martin,” founded the Jacksonville Beach Colored School in the early 20th century, and would become both a prominent educational and spiritual leader. The schoolhouse is now used as a cultural and educational center serving children and adults alike.

“At Lewis Longman & Walker, we see things differently, and it’s that perspective that allows us to see what others miss, or sometimes even want to pretend doesn’t exist,” Durden said. “When we have that perspective, it drives us to make changes. And that’s good. That’s progress.”

That progress for Durden will take a huge step forward in the coming months as she joins 54 others in this year’s Leadership Florida class. It’s a training and development program that many other Florida leaders over the 30 years it’s been offered have regarded as one of their most significant educational and career experiences.

“Brenna is joining a leadership club that’s unequaled anywhere else in the State, and probably the entire Southeast,” said Terry Lewis, a shareholder and named partner for Lewis, Longman & Walker. “It was Brenna’s leadership skills that attracted us to her in the first place, and it’s no surprise to me that Leadership Florida has recognized those exceptional qualities as well.”

The Florida Chamber of Commerce founded Leadership Florida in 1982. The program includes senior executives in some of Florida’s most prestigious corporations, as well as government officials on local and state levels, independent business people and non-profit executives.

Members of Leadership Florida currently serve on 5,000 corporate and non-profit boards throughout the state, providing key leadership in their local communities, as well as on state commissions and in elected office.

Lewis, Longman & Walker has been helping shape Florida’s future since it was founded in 1994. It’s a firm that is more than just lawyers. It’s a firm led by engineers, scientists, planners, mediators and past regulators who know government, and know business. This experience allows them to craft solutions that work. For more information about Brenna Durden and how you can contact her, click here.

Michelle Diffenderfer Sworn In as Chair of the Chamber of Commerce of the Palm Beaches

Michelle Diffenderfer was sworn in as Chair of the Chamber of Commerce of the Palm Beaches at the Annual Dinner & Silent Auction on November 4th at the National Croquet Center in West Palm Beach. Michelle was sworn in by her father, Tom Williams.

LLW Welcomes Thurston to the Family

LLW welcomes 8-week old “Thurston” to the family! Kim Ayers, the Firm’s
Human Resource Manager, recently became a puppy raiser for New Horizons Service Dogs. Kim will train Thurston for 18-20 months both at home and at the office while he works to become a service dog for someone with a disability. Thurston came from a litter of six, all named after the characters from Gilligan’s Island.

New Horizons is a not-for-profit organization that partners trained dogs with the disabled, mostly in the area of wheelchair and mobility assistance. They are located in Central Florida and provide dogs to disabled clients mostly throughout the State of Florida. For more information, visit their website at www.newhorizonsservicedogs.org.

 

LLW News & Notes

  • LLW will sponsor the Annual Lord’s Place Ending Homelessness Breakfast that will take place November 17th in West Palm Beach. The Lord’s Place is a nonprofit organization that has been changing the lives of homeless families and individuals in Palm Beach County for over 30-years. For more information, visit www.thelordsplace.org.
  • LLW attorneys will participate in the Annual Florida Brownfields Association Conference November 13-16thin Orlando. FBA President and LLW attorney Joe Ullo will participate on two panels, “Planning Your Brownfield Redevelopment” and “The Benefits of Brownfields – Looking at the Program in a Comparative Sense.” Dan Richardson will participate on a panel titled “Vapor Intrusion.” For more information, visithttp://floridabrownfields.org/.
  • Andy Baumann moderated a panel titled “Reform Efforts and Opportunities at the State Level” at The Palm Beach County Planning Congress’ 5th Annual Ethics Seminar on November 4th in Boca Raton.
  • LLW Shareholder Michelle Diffenderfer was recently listed in The International Who’s Who of Environment Lawyers 2011. Since 1996, Who’s Who Legal has identified the foremost legal practitioners in 31 areas of business law. They feature over 10,000 of the world’s leading private practice lawyers in over 100 countries and pride themselves on the integrity and authority of their findings. It is impossible to buy entry into this publication. For more information, please visit www.whoswholegal.com.
  • Michelle Diffenderfer worked pro-bono to start the “Jeanne Kay Dernbach Flowers for Hope” not-for-profit corporation. The foundation personally greets mastectomy patients at Cleveland Clinic Florida with a bouquet of flowers.  Sun Sentinel’s ‘Party in Pink’ event was held at the Museum of Art Fort Lauderdale on October 26th to benefit breast cancer awareness. Twenty percent of ticket sales and 100% of auction proceeds went to the “Flowers for Hope” Foundation.
  • LLW participated and sponsored the Florida Redevelopment Association Annual Conference that took place October 19-21th in Orlando.
  • LLW sponsored the 6th Annual Cards for a Cure event to benefit breast cancer research on October 1st in Tallahassee.
  • LLW participated in the Florida American Planning Association Annual Conference that took place September 7-10th in Palm Beach. LLW was a proud sponsor of the event and also hosted a reception during the conference.
  • Steve Walker presented “Challenges & Opportunities – The Seminole Tribe of Florida’s Water Rights Experience” at the Western States Water Council Symposium on the Settlement of Indian Reserved Water Rights Claims August 23-25th in Billings, Montana.