University of Buffalo, John Lord O’Brien School of Law, Juris Doctor, 1977
University of Buffalo, Bachelor of Science, 1970
District of Columbia, 1980
New York, 1978
U.S. Court of Appeals for the Eleventh Circuit
U.S. Court of Appeals for the Second Circuit
U.S. District Court, Middle District of Florida
U.S. District Court, Northern District of Florida
U.S. District Court, Southern District of Florida
U.S. District Court, Southern District of New York
U.S. District Court, Western District of New York
Irwin Gilbert is a senior partner at Conrad & Scherer’s Fort Lauderdale office with a practice concentrating primarily on complex commercial litigation, general business litigation, construction defect litigation, class actions and professional liability. Practicing in State and Federal Courts in Florida and across the Country, Irwin represents fortune 100 companies in high stakes litigation. He has been selected as lead counsel for the defense in mass shooting cases.
Irwin believes that success depends on communicating with the client to fully understand the client’s needs and expectations and designing a strategy to achieve those results in the most efficient manner possible. He has repeatedly “compressed the timeline” of litigation to conserve the client’s resources and minimize the disruption of the client’s business. When it comes to litigation, time is money. Compressing the timeline means getting the case on the fastest track, deflecting delay strategies by opposing counsel and getting the case to a resolution before his clients exhaust their patience and their resources. While Irwin has extensive experience taking complex litigation through trial, he believes that most disputes have the potential for less expensive resolution if the issues and objectives are clearly identified at the outset.
Irwin’s clients have included banks, investment firms, executives, celebrities, legal professionals, and Fortune 500 companies. In some of his more groundbreaking decisions, Irwin reigned in fiduciaries who had exceeded their powers, including court-appointed guardians and Assignees for the Benefit of Creditors. Irwin has also protected business clients from lawsuits, including class action, antitrust matters and trade secrets cases. In several of these cases, more than one hundred million dollars was at risk.
Irwin has a wide range of experience practicing throughout the United States and has litigated cases in Great Britain and Japan. His original training was in antitrust and unfair competition, defending companies in Robinson Patman and price-fixing conspiracy cases. He also served as Chairman of the Business Law Section of The Florida Bar’s Antitrust & Trade Regulation Subcommittee and also as Chair of the Florida Bar’s Business Litigation Committee.
Prior to studying law, Irwin studied physics and electrical engineering and was engaged in government service. Irwin earned his Juris Doctor degree from the University of Buffalo, John Lord O’Brien School of Law and after clerking, began practicing in two large New York City law firms. Prior to joining the firm, Irwin was a Partner in his own practice also defending private lenders, construction companies and commercial real estate developers in complex commercial litigation.
Member, Florida Bar Business Law Section
Co-Chairman, Business Litigation Committee, Business Law Section of The Florida Bar
Chair, Antitrust & Trade Regulation Subcommittee, Business Litigation Committee, Business Law Section of The Florida Bar
Client Security Fund Committee, The Florida Bar
Past Chairman, 15th Circuit Grievance Committee, The Florida Bar
Past Regional Vice President, The National Client Protection Organization, Inc. (NCPO)
Ullrich v. Welt (In re Nica Holdings, Inc.), 810 3d 781 (11th Cir. 2015). Wishing to dissolve and wind up its affairs, Nica Holdings, Inc. decided to avoid the more expensive route of a Chapter 7 Bankruptcy and chose instead to irrevocably assign its assets to an Assignee under Florida’s Assignment for Benefit of Creditors (“ABC”) statute, Section 727.101, et seq. One of its assets was stock in a Nicaraguan corporation engaged in fish farming (“Nicanor”). Seeking to sell that asset, the Assignee entered into an unambiguous and unconditional agreement to sell the stock to an existing investor in Nicanor, Peter Ullrich. Despite receiving a substantial down payment from Ullrich, the Assignee never notified creditors nor sought court approval of the sale. He kept the down payment and sold the stock to a third party. The Assignee essentially botched the entire ABC case and himself became the subject of a lawsuit. In turn the Assignee, facing motions to remove him for cause and for leave of court to sue him personally, took it upon himself to file bankruptcy on behalf of Nica—despite the fact that he had no authority to do so. Irwin represented Ullrich who had contracted to purchase the stock in Nicanor and who lost millions of dollars due to the Assignee’s actions. The Assignee happened to be a Chapter 11 Panel Trustee in the same court in which he filed bankruptcy on Nica’s behalf. In a series of stunning events, Ullrich’s claim against the Assignee was taken away from him as “derivative,” and the Chapter 7 Trustee promptly settled that multi-million dollar claim for a mere $50,000.00, letting the Assignee off the hook. On behalf of his client, Irwin appealed, challenging the Assignee’s authority to file the bankruptcy case in the first place. Deciding on an issue of first impression, the U.S. Court of Appeals for the Eleventh Circuit reversed the Bankruptcy Court and held that an assignee acting pursuant to Florida’s ABC statute lacked the inherent authority to place the assignor into bankruptcy. As a result, the orders entered in the bankruptcy case filed by the Assignee were void ab initio, with the settlements reached therein and approved by the Bankruptcy Court subject to reversal.
Jasser v. Saadeh, 97 So.3d 241 (Fla. 4th DCA 2012). In a significant decision, the Florida’s Fourth District Court of Appeal ruled that an Allegedly Incapacitated Person (“AIP”) in an involuntary incapacity case cannot settle the case prior to a determination of capacity and that the appointment of a Temporary Guardian strips the AIP of his legal right to enter into a settlement agreement. Karim Saadeh was an elderly widower who alarmed his children when he decided to remarry. His children decided to hire a lawyer and have him found incapacitated. After court proceedings, an Emergency Temporary Guardian was appointed. Saadeh was an immigrant from the Middle East and was unfamiliar and intimidated by the court processes. In order to “settle” the litigation, Saadeh agreed to sign a Revocable Trust in which his three children would control the Trust. He unwittingly signed an Irrevocable Trust. The Trust he signed was plainly labeled “Revocable Trust,” but a reading revealed Saadeh could not revoke it himself. All of his property was transferred to the Trust resulting in exposure to massive gift taxes. At trial, Irwin succeeded in having the Trust found void ab initioand also recovered the legal fees his children’s lawyers took from the Trust.
Saadeh v. Connors, Meyer, Barfield and Noble,166 So.3d 959 (Fla. 4th DCA 2015). On behalf of his client, Karim Saadeh, Irwin sued those responsible for tricking him into signing an irrevocable trust. In this case brought upon the “wrongful act doctrine,” Irwin sought to recover hundreds of thousands of dollars in legal fees his client incurred in getting the trust dissolved. One of the defendants was the attorney for the Emergency Temporary Guardian. Saadeh sued on the theory that even though she was not his attorney, she had a duty to act solely in his best interest, since he was a Ward of the Court. The trial court granted summary judgment dismissing the claims against this lawyer. On appeal, Florida’s Fourth District Court of Appeal reversed. In a case of first impression, that court held that the Guardian’s attorney owed a duty of care to Saadeh, and that a breach of that duty would present a viable claim.
Jasser, Mamone and Lycke v. Saadeh,91 So.3d 883 (Fla. 4th DCA 2012). Karim Saadeh loaned a large sum to Jasser, Mamone, and Lycke who intended to use loan proceeds to purchase an investment property. Repayment of the note was due after the property was sold. The Note did not contain a maturity date. The borrowers argued that the note was not silent as to maturity because the note provided for payment when the house was sold. The trial court granted judgment to our client, finding the Note was effectively “due on demand.” The District Court of Appeals affirmed, adding a finding that the Pre-Trial Stipulation stated “By operation of law the Note was due on Demand.”
In re Dack,101 Misc.2d 490 (NY 1979). Dack was a Police Officer who was in a gun battle with a suspect in an alley just 40 feet apart. Although suffering a head wound, Dack was able to return fire and kill his assailant. The morning newspaper reported that “witnesses to the shooting” told reporters that Dack executed the suspect at point blank range as he lay on the ground. However, there were no witnesses to the shooting in an alley in the middle of the night. It is believed that the reporters either made up the story or they recklessly disregarded the truth. In pre-suit discovery, Irwin deposed the two reporters, who then refused to answer questions based upon New York’s Shield law, which protects the confidentiality of a reporter’s sources. Irwin succeeded in convincing the court that, under the circumstances of allegedly speaking to witnesses in the crowd of people that formed after the shooting was over, there would be no expectation of confidentiality. This case was cited by prosecutor “Jack McCoy” in an episode of TV’s “Law & Order.”
Nick v. MPG Capital Corp.,56 N.Y.2d 515 (1982). Irwin represented Norman Nick, a securities salesman employed by MPG Capital Corp. Nick sought to arbitrate his compensation dispute under the NASD Code. In this precedent setting case, the New York Court of Appeals (its highest court) reversed the Appellate Division and ruled that because MPG was a member of the NASD and the NASD required its members to arbitrate disputes, arbitration was mandatory even though it was not a term of Nick’s employment.
Three Keys, Ltd. v. Kennedy Funding, Inc., 36 So.3d 656 (Fla. 5th DCA 2010). Three Keys, Ltd., was owned by Richard Basciano, infamous for his title of the “Porn King of Times Square.” Three Keys and Kennedy Funding jointly loaned more than $16 Million to a developer in Ft. Myers who defaulted. Senior lender Kennedy Funding went about the task of liquidating real property assets. Under the terms of an inter-creditor agreement, Kennedy Funding was entitled to recover all its expenses, loan principal, and interest before any payment was due to Three Keys. Despite a complete lack of evidence that Kennedy Funding had breached any duty to Three Keys, a jury awarded the company $5,345,000.00. The trial court set aside the verdict. Florida’s Fifth District Court of Appeals affirmed in a lengthy decision. The decision turned on the scope of duty under the “good faith and fair dealing” doctrine when the contract grants one party total discretion in determining how to deal with the liquidation of assets.
Trade Secret Litigation:
Pollio Dairy Products, Inc. v. Sorrento Cheese Company. This case began with accusations of theft of trade secrets pertaining to the mass production of ricotta cheese, but spun into accusations of perjured testimony and judicial corruption. Pollio won a bench trial, dealing a massive blow to Sorrento. However, post-verdict, three critical witnesses for the Plaintiff disavowed their trial testimony claiming they had been coerced. Post-trial investigation also revealed that the Trial Judge’s Law Clerk conducted business with the Plaintiff.
Argus Photonics Group, Inc. v. Dickenson and Panametrics, Inc., 841 So.2d 598 (Fla. 4th DCA 2003). In this case Irwin succeeded in having the Florida’s Fourth District Court of Appeal reverse the Florida Supreme Court. The Florida Supreme Court had ruled that factual disputes could not be tried in declaratory judgment cases. The Fourth District Court of Appeal held that, in appropriate circumstances, courts could resolve factual disputes necessary to reaching declaratory judgment. Argus sued Dickenson and Panametrics for $100 Million, alleging theft of trade secrets pertaining to a unique surgical laser system. Two engineers employed by Argus jumped ship despite non-compete agreements and went to work for Panametrics, a subsidiary of General Electric. In a separate suit, which reached trial first, Panametrics and its engineers sued for declaratory judgment claiming that Argus failed to protect trade secrets and thus lacked a legitimate business interest necessary to enforce its non-compete agreements. Careful pre-trial investigation revealed that Argus had repeatedly disclosed its trade secrets to potential buyers and investors without obtaining confidentiality agreements. Panametrics strategy of a pre-emptive strike resulted in a win in both cases. Antitrust:
Gemini Chemical v. Edmer Sanitary Supply Company, Inc. U.S. District Court, Eastern District of New York. Two salesman for Edmer, a sanitary supply company, resigned and formed a competing company. With knowledge of Edmer’s customers and prices, they quickly undercut Edmer and began to take away its customers. Edmer retaliated by offering those customers even greater discounts. In this case brought under The Robinson-Patman Act, Gemini sued for damages and injunction based upon the Robinson-Patman’s prohibition against undercutting new entrants in the marketplace. We represented Edmer and won a trial dismissal. Prior to trial, we had made a Motion for Summary Judgment that was denied based upon the plaintiff’s expert witness affidavit. At trial, we had the opportunity to cross-examine that expert. After some two hours of cross-exam, the court interrupted and took over the questioning, reversed itself, and granted our Motion for Summary Judgment.
Body Worx, LLC v. Basic Research,S. District Court, Western District of Texas. An anti-trust and price fixing conspiracy case. Our Motion to Dismiss was granted even though our client sent emails which seemed to admit their efforts to ‘fix’ the price of its product on the internet. How do you defend a client that has left a paper trail showing it plainly attempted to set the price of a retail product by threatening and cajoling a distributor? By arguing that the attempts failed, no price discipline was ever accomplished, and that there is no such thing as attempted anti-trust.
Frivolous Lawsuit Demise Greatly Exaggerated in Palm Beach County, Palm Beach Post, August 20, 2017
Appeals Court Reverses Self in Real Estate Case That Spawned 8 Amicus Briefs, Daily Business Review, February 7, 2017
Newsmakers: People in Palm Beach County Business, Civic Life, Palm Beach Post, August 7, 2016
Appointed Chairman of The Florida Bar’s Business Litigation Committee, Legal Learning Series, July 5, 2016
Appointed Chairman of The Florida Bar’s Business Litigation Committee, Attorney at Law Magazine, July 5, 2016
Appointed Chairman of The Florida Bar’s Business Litigation Committee, CityBizList South Florida, July 5, 2016
Trial Pros: Irwin Gilbert, Law360, June 24, 2016
Special Report: New Partners, Daily Business Review, March 31, 2016
Statewide Business: Firm Shifts Into High-Growth Mode, South Florida Legal Guide, January 2016
Publications/Teaching & Speaking Engagements
Contributor, LexisNexis Practice Guide: Florida Business Torts, Danvars, Mass.: Matthew Bender & Company, Inc., 2013
Defending Mass Shooting Cases-The New Normal: Liability for Mass Incidents in the Present and Near Future, June 2018
Surviving Litigation without Breaking the Bank, May 2018
Active Shooting & Liability Coverage, January 2018
Legal Strategies for the Construction Industry, July 2016