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Richard J. Ovelmen

Richard J. Ovelmen

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Overview

For more than 30 years, Richard J. Ovelmen has practiced constitutional, land-use, local government, media, class action, and intellectual property law, including particularly First Amendment, defamation, trademark and copyright litigation, litigation regarding access to government held information, privacy, as well as antitrust and trade secret claims. His practice also includes appellate work in all courts, complex commercial litigation, Bert J. Harris Act Claims, litigation concerning developments of regional impact, local referenda and initiatives, and international litigation.

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Experience

Supreme Court Practice

  • IMS v. Sorrell, 564 U.S. 552 (2011). Amicus brief for TechFreedom, a non-profit tech policy think tank, successfully supporting respondents.
  • South Florida Water Management District v. Miccosukee Tribe of Indians of Florida, 541 U.S. 95 (2004). Co-counsel to Miccosukee Indian Tribe in victory before the United States Supreme Court in which the tribe sought to require the South Florida Water Management District to obtain Clean Water Act permit for pollutants being discharged into the Everglades. 
  • Butterworth v. Smith, 494 U.S. 624 (1989). Successfully represented press amici in U.S. Supreme Court in challenge to Florida Statute punishing state grand jury witnesses who speak publicly about their testimony after investigation is closed.
  • U.S. Dept. of Justice v. Reporters Committee For Freedom of the Press, 489 U.S. 749 (1989). Represented American Newspaper Publishers Association, American Association of Newspaper Editors, and others in United States Supreme Court in FOIA case involving public access to FBI “rap sheets”.
  • The Florida Star v. B.J.F., 109 S. Ct. 2603 (1989). Successfully represented press amicus parties in United States Supreme Court on the merits of the privacy question: whether a newspaper may be held strictly liable for publication of the name of an alleged rape victim.
  • Arkansas Writer’s Project v. Ragland, 107 S. Ct. 1722 (1987). Successfully represented press amici in suit challenging discriminatory tax on the press.
  • Globe Newspapers v. Superior Court, 457 U.S. 596 (1982). Wrote the brief on behalf of more than 50 national media clients successfully arguing the First Amendment is violated by the automatic exclusion of the press from trial testimony by minor victims of sex crimes.

Local Government

  • Nichols v. City of Miami Beach, et al., (pending, Fla. Cir. Ct.). Representing City of Miami Beach to defend against challenge to constitutionality of ordinance regarding short-term rentals.
  • Matheson v. Miami-Dade County, Florida and 0101 Miami Properties, LLC, No. 3D17-2649 (Fla. 3d DCA) (appeal pending). Dispute over sale of government real property to private soccer stadium developer.
  • Herbits, et al. v. City of Miami, (pending, Fla. Cir. Ct., Fla. 3d DCA). Dispute alleging City of Miami Charter violations regarding Watson Island development project.
  • International Players Championship v. Matheson, (Fla. Cir. Ct.). Granted summary judgment on professional tennis center developer’s challenge to “public park purpose only” deed restrictions on Crandon Park. Decision later affirmed per curium by Florida’s Third District Court of Appeal.
  • Regalado v. City of Miami, (Fla. Cir. Ct.). Defeated dismissal and partial summary judgment motions in lawsuit asserting city mislead voters by seeking voter approval of a purportedly “privately funded” skyscraper complex when development would be subsidized with millions in government funding. Negotiated settlement whereby developers agreed never to accept public money for project and to pay $400,000 in attorney’s fees to plaintiffs.
  • Hoefling v. City of Miami, (11th Cir.). Reversed district court order granting the city’s motion to dismiss in 1983 civil rights action against city for unlawfully taking and destroying a marine resident’s houseboat without due process. 
  • Club Madonna v. City of Miami Beach, (11th Cir.) (appeal pending) Defense counsel to city in action challenging temporary revocation of nude dance club’s business licenses and challenging validity of human trafficking ordinances.
  • Club Madonna v. City of Miami Beach, No. 08-23469-CIV-Moore/Turnoff (S.D. Fla.). Successful defense of city and commissioners in action challenging constitutionality of ordinances prohibiting sale of liquor in nude establishments, and asserting violation of First Amendment right of access to legislative process. 
  • MCZ/Centrum Flamingo, LLC v. City of Miami Beach, No. 08-22419-Altonaga/Brown (S.D. Fla.). Successful defense of City in unconstitutional takings suit over baywalk easement at largest development in the City.
  • Mike Costa Foliage, Inc. v. Department Of Agriculture And Consumer Services, No. 3D02-1344 (Fla. Dist. Ct. App. 2003). Successfully opposed efforts by Florida Department of Agriculture to destroy Nursery’s grove of 3,000 calamondin mother trees which were allegedly “exposed” to Asian strain citrus canker.
  • West Side Partners, Ltd. v. City of Miami Beach, No. 98-13274 CA-30 (Fla. Cir. Ct.). Successful defense of city’s charter amendment requiring referendum approval of density increases to waterfront property; defense of multiple Bert J. Harris claims against city brought by German developer Thomas Kramer regarding repeal of city-wide design review bonus zoning; defense of bad faith claim against city.
  • Miami Heat Limited Partnership v. David C. Leahy & Stop New Arena Committee, 682 So. 2d 198 (Fla. Dist. Ct. App. 1996). Obtained court ruling that the county’s home rule charter controls to eliminate “single subject” referendum ballot language requirement. 

First Amendment

  • James Tracy v. Florida Atlantic University, et al., 18-10173 (appeal pending, 11th Cir.) and 16-cv-80655-Rosenberg. Appeal representing professor fired in retaliation for blogging activity and raising facial and as-applied constitutional challenges to school’s vague and viewpoint-discriminatory policy.
  • Maggy Hurchalla v. Lake Point Phase I & II, (appeal pending, Fla. 4th DCA). Co-counsel in appeal representing environmentalist sued for petitioning government regarding concerns about environmental impacts of development project.
  • Wollschlaeger v. Governor of State of Florida, 848 F.3d 1293 (11th Cir. 2016) (en banc). Amicus brief for American Bar Association supporting rehearing en banc.
  • Miami-Dade County School Board v. ACLU, No. 06-14633-GG (11th Cir. 2009). Successful appeal for School Board in infamous “Cuban book ban” case reversing injunction.
  • State of Minnesota v. American Bankers Insurance Co. of Florida, No. K2-03-1467 (D.C. Minn.). Successful First Amendment defense of insurer accused of making political contributions which were illegal under Minnesota law. The state alleged that insurer made campaign contributions to the National Republican Party which were later routed back to Minnesota state political campaigns and which were intended to illegally influence these political campaigns.
  • Powell v. Allstate Insurance Co., 652 So. 2d 354 (Fla. 1995). Successfully represented amicus curiae A.C.L.U. in case to decide whether racially bigoted remarks during jury deliberations are grounds for new trial or inhere in the jury’s verdict.
  • In Re Advisory Opinion to the Governor, 509 So. 2d 292 (Fla. 1987). Argued on behalf of the Florida Press Association and other media in this landmark case involving the constitutionality of a state sales tax on newspapers, advertising, other services.
  • Keller v. Miami Herald Publishing Co., 778 F.2d 711, (11th Cir. 1985). Successfully briefed right of press to publish satirical political cartoons in libel action.

Defamation

  • Root v. C. Steven McMillan, John A. Youmans, New Country Motor Cars of Palm Beach, LLC d/b/a Ferrari of Palm Beach, and New Country Motor Car Group, Inc., No. 50-2016-CA-008921 (Fla. Cir. Ct.) (pending) Counsel to Ferrari defendants in suit brought by employee for defamation, conspiracy to defame, violation of Florida’s Whistleblower Act, and implied duty of good faith and fair dealing.
  • Zoological Wildlife Foundation, Inc., and Mario Tabraue v. The Humane Society of the United States, Inc., No. 15-CV-23529 (S.D. Fla. 2017). Successful defense of Humane Society in libel suit brought by founder of zoo who was also convicted of multiple felony crimes.
  • Preston B. Henn v. Ferrari of North America, Inc., No. 16-CV-61830 (S.D. Fla. 2016). Defense counsel to Ferrari of North America, Inc. in defamation suit. Plaintiff voluntarily dismissed suit in response to Ferrari’s motion to dismiss.
  • Club Madonna v. Jane Gross, No. 04-11708 CA 02 (Fla. Cir. Ct. 2004). Motion to dismiss libel suit granted with prejudice as to all statements alleged defamatory in suit by nude nightclub and owner against wife of City of Miami Beach Commissioner. 
  • Ford v. American Reliable Insurance Co., No. CV-S-01-0413-DWH-PAL, (S.D. Nev.). Successful defense of libel suit brought by nationally known boxing judge against insurer.
  • Rexall Sundown v. Dr. Matthias Rath, No. 99-CIV-8972 (S.D. Fla. 1999). Successful libel defense of Dr. Matthias Rath, an eminent German research doctor who was one of the discoverers of “bad cholesterol” and partner to Nobel Laureate Linus Pauling. Plaintiff, a publicly held vitamin manufacturer sued Rath in West Palm Beach state court for allegedly libelous statements made on a Netherlands' web site to the effect that Rexall is controlled by organized crime. Removed the case to federal court. The federal district court then dismissed the case on personal jurisdiction grounds, holding that the largely passive web site did not provide a basis for jurisdiction over the defendants under the due process clause. After filing a notice of appeal to the Eleventh Circuit, the plaintiff filed a voluntary dismissal with prejudice.
  • Smith v. C.A.N.F., 731 So. 2d 702 (Fla. Dist. Ct. App. 1999). Successful defense on appeal of adverse jury verdict (did not handle case in trial court) in libel suit against Professor Wayne Smith, Director of Cuban Studies at Johns Hopkins University brought by the Cuban American National Foundation, the preeminent national organization of Cubans in America. The appellate court held that an allegedly defamatory “sound byte” from Professor Smith, that was included in a public television documentary, had to be considered in proper context, and as such was not susceptible of defamatory meaning. The appellate court entered judgment for Smith, and the Florida Supreme Court denied review.
  • Morse v. Meredith Corp., No. 96-014345 (Fla. Cir. Ct. 1996). Successful defense of libel suit against Ladies Home Journal based on statements made by wife of baseball star Cal Ripken.
  • Jorge Mas Canosa v. New Republic and Ann Louise Bardach, No. 94-2681-CIV-DAVIS (S.D. Fla. 1995). Successful defense of major libel suit brought by arguably most powerful Cuban American with no retraction or correction by author who had been sued on over 130 statements published in article; magazine publisher retracted “cover line” only.
  • Kuhl v. Daily Business Review, 93-1707-CIV-KING (S.D. Fla. 1995). Successful defense of libel suit brought by Canadian developer on article concerning misuse of conduit revenue bonds.
  • Cypress v. Tamiami Partners, 662 So. 2d 1292 (Fla. Dist. Ct. App. 1995). Successful defense of libel suit brought by ousted Indian “bingo” hall management against Chief of Miccosukee Indian Tribe and Dexter Lehtinen, its general counsel. Sanford L. Bohrer and F. Lee Bailey were plaintiffs’ counsel.
  • Magda Montiel Davis v. Marieta Fandino, et al., 653 So. 2d 516 (Fla. Dist. Ct. App. 1995). Successful defense of three libel suits brought against Hispanic media by former congressional candidate.
  • Centrone v. Miami Herald Publishing Co., (Fla. Cir. Ct. 1988-1994). Successful defense of libel suit brought by neurosurgeons and their affiliated companies. Plaintiffs’ counsel Jonathan Lubell of New York, and local trial counsel, Dianne Weaver. Suit targeted over 120 statements published in 12 articles that were part of a series of 52-article series about the plaintiffs. Hard damages suffered exceeded $100 million. Thirteen consecutive partial summary judgments obtained from trial court; voluntary dismissal ultimately taken by plaintiffs; case amicably resolved on appeal.

Open Government

  • American Securities Insurance Co. v. Florida Office of Insurance Regulation, (Fla. Cir. Ct.). Obtained summary judgment in a “reverse Public Records Act” lawsuit against the Florida Office of Insurance Regulation.
  • Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988). Successfully represented press parties in suit seeking access to divorce file of state senator.
  • Miami Herald Publishing Co. v. City of North Miami, 420 So. 2d 653 (Fla. Dist. Ct. App. 1982), 452 So. 2d 572 (Fla. Dist. Ct. App. 1984), approved and remanded, 468 So. 2d 218 (Fla. 1985). On behalf of The Miami Herald, persuaded the court the state public records law applies to the litigation files of city and county attorneys.
  • Neu v. Miami Herald Publishing Co., 462 So. 2d 821 (Fla. 1985). Successfully argued for the State of Florida and The Herald that all meetings between public bodies and their lawyers must be held in public under the State Sunshine Law. 
  • Forsberg v. The Housing Authority of the City of Miami Beach, 455 So. 2d 373 (Fla. 1984). Successfully represented press amici, wrote the principal brief arguing that the right to privacy does not extend to records pertaining to subsidized public housing.
  • Small Business Administration v. Miami Herald Publishing Company, 670 F.2d 610 (5th Cir. 1982). Successfully argued that SBA loan documents are subject to the F.O.I.A.
  • Parsons & Whittemore v. Metropolitan Dade County, 429 So. 2d 343 (Fla. Dist. Ct. App. 1981). Convinced the Third District Court of Appeals that records of a garbage-to-energy plant were not “public records”.
  • Krause v. Reno, 366 So. 2d 1244 (Fla. Dist. Ct. App. 1979). Successful Sunshine law suit for access to proceeding of citizen’s committee which assisted in selection of police chief.

Complex Commercial and Class-Action Litigation

  • Joseph Beresford v. Phil Rosen, Laurie Berger, Fred Fischer, David Doll, Brian Sattar, New Country Motor Car Group, Inc., and New Country Motor Cars of Palm Beach, LLC d/b/a Mercedes-Benz of Palm Beach, No. 50-2018-CA-000074 (Fla. Cir. Ct. 2018) (pending). Defense counsel to all seven defendants in suit brought by former employee claiming civil RICO, Florida Whistleblower Act, and FDUTPA violations, breach of fiduciary duty, and negligent misrepresentation.
  • In Re Florida Cement and Concrete Antitrust Litigation, No. 09-23187-CIV-Altonaga (S.D. Fla.) and No. 09-23493-CIV-Altonaga (S.D. Fla.). Co-counsel in successful defense of civil class action antitrust price-fixing case brought against Florida concrete manufacturers. 
  • Aegon USA, Inc. “actual charges” litigation. Involved in the defense of approximately 22 cases, some national class actions, others state class actions, and still other individual actions, asserting claims that the Life Investors Insurance Company must pay its insureds under supplemental cancer policies the healthcare providers’ “list prices” instead of much lower fees actually paid to them by primary healthcare insurers.

Intellectual Property

  • New Country Motor Cars of Palm Beach, LLC d/b/a Mercedes-Benz of Palm Beach and New Country Motor Car Group, Inc. v. Joseph Beresford(S.D. Fla. 2017) (pending). Counsel for Mercedes-Benz dealership and entity that manages dealerships in suit against former employee for theft of trade secrets.
  • Rath, Health Now, Inc. v. Network Marketing, L.C., 790 So. 2d 461 (2001).Successfully represented Dr. Matthias Rath by establishing that a party waives right to arbitration by obtaining temporary injunctive relief from court rather than from arbitrator.

Recognition

  • Former Adjunct Professor, University of Miami School of Law; most recently taught constitutional litigation at the law school. In other years taught copyright law, intellectual property, and press law; lectured on appellate advocacy and judged the moot court finals
  • Former Lecturer, University of Miami, College of Liberal Arts; taught media law to undergraduates majoring in journalism and political science
  • AV Preeminent Rating by Martindale-Hubbell
  • Selected for inclusion in Florida Super Lawyer (2005-2011, 2014-2018)
  • Listed in South Florida Legal Guide (2014-2015)
  • Selected as Florida Legal Elite (Commercial Litigation) by Florida Trend magazine (2005-2011)
  • Listed in The Best Lawyer in America, Appellate Practice, First Amendment Law, Litigation - First Amendment, Media Law (1991-2019)

Professional & Community Involvement

  • Member, American Bar Association
  • University of Miami School of Law
    • Former Adjunct Professor
    • Classes in constitutional litigation, copyright law, intellectual property, and press law
    •  Lectured on appellate advocacy and judged the moot court finals
  • University of Miami, College of Liberal Arts
    • Former Lecturer and Professor of media law for undergraduates majoring in journalism and political science

Speaking Engagements

  • “Class Action Survey and Trends,” Carlton Fields In-House Counsel Forum, Orlando, FL (March 2017)
  • "Two Models of Internet Liability Rules: the Takedown Approach and the Limited Immunity Regime," 9th International Litigation and Arbitration Conference of the International Law Section of the Florida Bar (February 4, 2011)
  •  Fourth Annual Conference on Litigating Regulatory Takings Claims
  • Georgetown University Law Center conference that explored takings and related constitutional challenges to land use, environmental and other regulatory programs. Presentation focused on Florida's recently enacted Bert J. Harris Private Property Protection Act (Fall 2002)
  • Litigation section of the ABA, American and English libel suits and psycho-linguistic studies of jury instructions in libel suits, annual conventions in London and Atlanta
  • ABA Forum Committee on Communications Law, addressing the issues of "chill" on freedom of expression caused by libel suits and press responses to retraction demands and other complaints
  • Florida Bar's annual Media Law Conference, press and bar cross-perceptions, access to legal proceedings, press coverage of celebrated cases, subpoenas on reporters, public records and libel
  • The Reporter's Handbook , Richard has written articles on access, subpoenas, and privacy for the Bar's annual publication, and has been a featured speaker on software franchise litigation to the patent bar of the Southern District of Florida for 15  years
  • Seminar on the First Amendment decisions of the United States Supreme Court handed down in the current term, presented annually at the Florida Bar's annual convention for 25 years
  • Access rights and privacy at the Florida Press Association's annual convention
  • PLI,  over 22 years as a speaker

Credentials

Education
  • Yale Law School (J.D., 1978)
  • Butler University (B.A., 1974)
Bar Admissions
  • Florida
Court Admissions
  • United States Supreme Court
  • U.S. Court of Appeals, Fifth Circuit
  • U.S. Court of Appeals, Sixth Circuit
  • U.S. Court of Appeals, Eleventh Circuit
  • U.S. District Court, Middle District of Florida
  • U.S. District Court, Southern District of Florida

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