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Richard J. Ovelmen

Richard J. Ovelmen

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Overview

For more than 30 years, Richard 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.

Featured Insights

Experience

Supreme Court Practice

  • IMS v. Sorrell, 564 U.S. 552 (2011). Amicus brief for TechFreedom, a nonprofit tech policy think tank, successfully supporting respondents.
  • S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004). Co-counsel to Miccosukee Indian Tribe in victory before the U.S. 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. Dep't of Justice v. Reporters Comm. For Freedom of the Press, 489 U.S. 749 (1989). Represented American Newspaper Publishers Association, American Association of Newspaper Editors, and others in U.S. Supreme Court in FOIA case involving public access to FBI “rap sheets.”
  • Fla. Star v. B.J.F., 491 U.S. 524 (1989). Successfully represented press amicus parties in U.S. 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.
  • Ark. Writers' Project v. Ragland, 481 U.S. 221 (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 (Fla. Cir. Ct.) (pending). Representing city of Miami Beach to defend against challenge to constitutionality of ordinance regarding short-term rentals.
  • Matheson v. Miami-Dade Cty., No. 3D17-2649 (Fla. 3d DCA) (appeal pending). Dispute over sale of government real property to private soccer stadium developer.
  • Herbits v. City of Miami (Fla. Cir. Ct., Fla. 3d DCA) (pending). Dispute alleging city of Miami charter violations regarding Watson Island development project.
  • Int'l 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 misled 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 attorneys' 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. 1:08-cv-23469 (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 II, LLC v. City of Miami Beach, No. 1:08-cv-22419 (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. Fla. Dep't of Agric., 838 So. 2d 1166 (Fla. 3d DCA 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 citywide design review bonus zoning; defense of bad faith claim against city.
  • Miami Heat Ltd. P'ship v. Leahy, 682 So. 2d 198 (Fla. 3d DCA 1996). Obtained court ruling that the county’s home rule charter controls to eliminate “single subject” referendum ballot language requirement. 
  • Sierra Club v. Flowers, No. 09-10877 (11th Cir. 2010). One of lead appellate counsel for limestone mining companies in Everglades Lake Belt District in appeal that successfully reversed district court.

First Amendment

  • Tracy v. Fla. Atl. Univ., No. 18-10173 (11th Cir.) (appeal pending) and 9:16-cv-80655 (S.D. Fla.). 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.
  • Hurchalla v. Lake Point Phase I & II (Fla. 4th DCA) (appeal pending). Co-counsel in appeal representing environmentalist sued for petitioning government regarding concerns about environmental impacts of development project.
  • Wollschlaeger v. Governor, Fla., 848 F.3d 1293 (11th Cir. 2016) (en banc). Amicus brief for American Bar Association supporting rehearing en banc.
  • ACLU v. Miami-Dade Cty. Sch. Bd., 557 F.3d 1177 (11th Cir. 2009). Successful appeal for school board in infamous “Cuban book ban” case reversing injunction.
  • State v. Am. Bankers Ins. Co. of Fla., No. K2-03-1467 (D.C. Minn.). Successful First Amendment defense of insurer accused of making political contributions that were illegal under Minnesota law. The state alleged that the 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 Ins. Co., 652 So. 2d 354 (Fla. 1995). Successfully represented amicus curiae ACLU 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 Op. 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 Publ'g 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 Found., Inc. v. Humane Soc'y of the United States, Inc., No. 1:15-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.
  • Henn v. Ferrari of N. Am., Inc., No. 0:16-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. Am. Reliable Ins. Co., No. 2:01-cv-00413 (D. Nev.). Successful defense of libel suit brought by nationally known boxing judge against insurer.
  • Rexall Showcase v. Rath, No. 9:99-cv-08972 (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' website 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 website 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. Cuban Am. Nat'l Found., 731 So. 2d 702 (Fla. 3d DCA 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.
  • Mas Canosa v. New Republic, Inc., No. 1:94-cv-02681 (S.D. Fla. 1995). Successful defense of major libel suit brought by arguably the most powerful Cuban American with no retraction or correction by author who had been sued on more than 130 statements published in article; magazine publisher retracted “cover line” only.
  • Kuhl v. Daily Business Review, No. 1:93-cv-01707 (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. 3d DCA 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.
  • Davis v. Fandino, 653 So. 2d 516 (Fla. 3d DCA 1995). Successful defense of three libel suits brought against Hispanic media by former congressional candidate.
  • Centrone v. Miami Herald Publ'g Co., (Fla. Cir. Ct. 1988-1994). Successful defense of libel suit brought by neurosurgeons and their affiliated companies. Plaintiffs’ counsel included Jonathan Lubell of New York, and local trial counsel Dianne Weaver. Suit targeted more than 120 statements published in 12 articles that were part of a 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

  • Am. Sec. Ins. Co. v. Fla. Office of Ins. Regulation (Fla. Cir. Ct.). Obtained summary judgment in a “reverse Public Records Act” lawsuit against the Florida Office of Insurance Regulation.
  • Barron v. Fla. Freedom Newspapers, 531 So. 2d 113 (Fla. 1988). Successfully represented press parties in suit seeking access to divorce file of state senator.
  • Miami Herald Publ'g Co. v. City of N. Miami, 420 So. 2d 653 (Fla. 3d DCA 1982), 452 So. 2d 572 (Fla. 3d DCA 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 Publ'g Co., 462 So. 2d 821 (Fla. 1985). Successfully argued for the state of Florida and the Miami Herald that all meetings between public bodies and their lawyers must be held in public under the State Sunshine Law.
  • Forsberg v. Housing Auth. 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 Bus. Admin. v. Miami Herald Publ'g Co., 670 F.2d 610 (5th Cir. 1982). Successfully argued that SBA loan documents are subject to the FOIA.
  • Parsons & Whittemore v. Metro. Dade Cty., 429 So. 2d 343 (Fla. 3d DCA 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. 3d DCA 1979). Successful Sunshine lawsuit for access to proceeding of citizen’s committee that assisted in selection of police chief.

Complex Commercial and Class Action Litigation

  • 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. 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 Fla. Cement & Concrete Antitrust Litig., Nos. 1:09-cv-23187, 1:09-cv-23493 (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 others individual actions, asserting claims that the Life Investors Insurance Co. must pay its insureds under supplemental cancer policies the health care providers’ “list prices” instead of much lower fees actually paid to them by primary health care insurers.
  • London v. Wal-Mart Stores, Inc., 340 F. 3d 1246 (11th Cir. 2003). Obtained discretionary 23(f) review of trial court’s class certification order. Thereafter, obtained reversal of order, which certified class of insureds seeking to void their insurance certificates for alleged noncompliance with certain technical regulatory requirements of Florida Insurance Code.

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. 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 v. Network Mktg., L.C., 790 So. 2d 461 (Fla. 4th DCA 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

  • AV Preeminent Rating by Martindale-Hubbell
  • Recipient of The Florida Bar Service Award (2019)
  • Selected for inclusion in Florida Super Lawyers (2005-2011, 2014-2019)
  • Listed in South Florida Legal Guide (2014-2015)
  • Selected  for inclusion in Florida Trend's Florida Legal Elite, Commercial Litigation (2005-2011)
  • Listed in The Best Lawyer in America, Appellate Practice, First Amendment Law, Litigation – First Amendment, Media Law (1991-2019)

Professional & Community Involvement

  • 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," Ninth 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 exploring takings and related constitutional challenges to land use, environmental, and other regulatory programs. Presentation focused on Florida's recently enacted Bert J. Harris Jr. Private Property Rights 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.
  • The Florida Bar 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 Florida 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 U.S. Supreme Court handed down in the current term, presented annually at The Florida Bar's annual convention for 25 years.
  • Florida Press Association's annual convention: access rights and privacy.
  • More than 22 years as a speaker at PLI.

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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