Case: 17-11993 Date Filed: 08/09/2017 Page: 1 of 20

Case No. 17-11993

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_________________________________________

DOES 1-98 v. BOIES SCHILLER & FLEXNER LLP

__________________________________________

On Appeal from the United States District Court for the

Southern Distrct of Florida, Cases No. 10-cv-60573, 13-cv-80146
(The Honorable Kenneth A. Marra)

_________________________________________

REPLY OF APPELLANTS DOES 1-98

_________________________________________

Paul Wolf, CO Bar #42107

Attorney for Does 1-98
P.O. Box 46213
Denver, CO 80201
(202) 431-6986
fax: n/a
[email protected]

August 9, 2017
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CERTIFICATE OF INTERESTED PERSONS

Pursuant to Eleventh Circuit Rule 26.1-1, counsel for Appellants,

Does 1-98, certifies that the following is a complete list of all persons that

have an interest in the outcome of the particular case on appeal:

Does 1-98, whose identities are known to the District Court

Lee S. Wolosky

Nicholas A. Gravante Jr.

Magda M. Jimenez Train

Sigrid S. McCawley

Stephen N. Zack

Karen C. Dyer

Douglass A. Mitchell

The other partners of Boies Schiller & Flexner, LLP

John Scarola

Searcy Denney Scarola Barnhardt & Shipley, LLP

Heli Abel Torrado

Jhon Ivan Polo

Walter LNU

Viviana Muoz

Ginna LNU
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Cristina LNU

Nelson Marin

Yolanda Marin

Paul David Wolf

Chiquita Brands International, Inc., and all subsidiaries and affiliates.

Covington & Burling, LLP

Blank Rome, LLP

The Honorable Kenneth A. Marra (SDFL)

The Honorable Paul L. Friedman (DCDC)

David R. Boyd

Mark Jurgen Heise

Stephen Kyriacou

John F. LaSalle

Joshua Libling

Ilana Miller

Brendon Olson

Meredith Schultz

W. Todd Thomas

/s/ Paul Wolf

______________________
Paul Wolf, CO Bar #42107
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TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................... i

TABLE OF AUTHORITIES ................................................................ ii

FACTS IN DISPUTE ............................................................................ 1

ARGUMENT ........................................................................................ 3

I. The Appellants suffered an injury in fact. .................................. 3

A. The Appellees confuse the concepts of injury

and harm throughout their brief. ....................................... 4

B. The Appellants have a legally protected interest

in the underlying litigation. ............................................... 6

II. Prudential ripeness is not an issue in this case. ........................... 7

III. The Appellants have stated claims for legal malpractice and
invasion of privacy. ..................................................................... 7

A. Legal Malpractice .............................................................. 9

B. Invasion of Privacy ............................................................ 11

CONCLUSION ...................................................................................... 13

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TABLE OF AUTHORITIES

CASES

Abington School District v. Schempp, 374 U.S. 203 (1963) .................. 7

Beard v. Edmonson et. al, 790 A.2d 541 (D.C. 2002) ............................ 11

Beck v. McDonald, 848 F.3d 262 (4th Cir. 2017) .................................. 12

Carey v. Piphus, 435 U.S. 247 (1978) .................................................... 6

Carranza v. Fraas, 763 F.Supp.2d 113 (D.D.C. 2011) ........................... 9

Council on American-Islamic Relations Action Network, Inc.

v Gaubatz et al, 82 F.Supp.3d 344 (D.D.C. 2015) ................................. 10

District of Columbia v. Bamidele, 103 A.3d 516 (D.C. 2014) .............. 6

Drummond v. Collingsworth, Case #16-11090 (11th Cir.) ............. 1, 3, 11

Fed. Deposit Ins. Corp. v. Morley, 867 F.2d 1381 (11th Cir.1989) ....... 9

Feld v. Feld, 783 F.Supp.2d 76 (D.D.C. 2011) ....................................... 5

Flast v. Cohen, 392 U.S. 83 (1968) ........................................................ 3

Hill v. White, 321 F.3d 1334 (11th Cir. 2003) ....................................... 1

Jacque v. Steenberg Homes, 209 Wis.2d 605 (Wis. 1997) .................... 5-6

Kaempe v. Myers, 367 F.3d 958 (D.C. Cir. 2004) ................................. 9

Koziara v. City of Casselberry, 392 F.3d 1302 (11th Cir. 2004) ........... 7

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................ 4

Montgomery Ward & Co. v. Cliser, 267 Md. 406 (1972) ...................... 6

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O'Neil v. Bergan, 452 A.2d 337 (D.C. 1982) ......................................... 9

Picazio v. Melvin K. Silverman and Associates, P.C.,

965 F.Supp.2d 1411 (2013) .................................................................... 10

Randolph v. ING Life Insurance and Annuity Co.,

973 A.2d 702 (DC. 2009) ....................................................................... 10

Shapiro, Lifschitz & Schram, P.C. v. Hazard,

24 F.Supp.2d 66 (D.D.C.1998) .............................................................. 10

Spokeo, Inc. v. Robbins, 136 S.Ct. 1540 (2016) .................................... 4

Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998) ........ 7

Wanis v. Zwennes, 364 A.2d 1193 (D.C. 1976) .................................... 6

Wolf v. Regardie, 553 A.2d 1213 (D.C. 1989) ...................................... 10

STATUTES AND RULES

D.C. Code 12-301 (limitations on actions) ......................................... 11

F.R.C.P. 12(b)(1) .................................................................................... 3-7

F.R.C.P. 12(b)(6) ................................................................................. 7-12

OTHER

Model Rules of Professional Responsibility .......................................... 8

Restatement of Torts (2d), American Law Institute (1965) ................... 4-5

Words and Phrases (2003) ...................................................................... 5

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FACTS IN DISPUTE

The Appellee's version of events is at odds with the allegations in the

Complaint. In reviewing an Order on a Rule 12(b) Motion to Dismiss, the

court should accept the facts alleged in the complaint as true and construe

them in the light most favorable to the plaintiff. Hill v. White, 321 F.3d

1334, 1335 (11th Cir. 2003) What the Appellee portrays as an innocent and

harmless period of overlapping representation, followed by a cooperative de-

duplication process, was in our view a deliberate raid on a community

already represented in court for more than two years, followed by a refusal

to withdraw 150 duplicate claims until a three-year statute of limitations was

about to run, when the Appellants had to file a lawsuit to resolve the

disputed representation.1 The Appellee then worked to exclude counsel for

1
Of the 150 duplicate claims, there were no cases in which the Appellees
Boies Schiller & Flexner LLP signed a retainer agreement before Appellant's
counsel Wolf. That's because we had already been working with the
plaintiffs for two years, and because the intake process we use screens
clients for prior representation. Although Appellant accuses us of not
providing copies of our retainer agreements until after filing suit, neither
would the Appellees. Three years later, the parties exchanged this
information and conferred on June 25, 2015 at meeting in Denver, CO.
Shortly thereafter, the Appellees moved the District Court for relief from a
protective order the parties had agreed to, to use the contracts and sworn
declarations from each plaintiff in a motion for summary judgment on the
merits. The District Court never allowed Appellants any discovery, yet
dismissed the case on the merits.

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Appellants from participating in discussions of the Plaintiffs' Steering

Committee in the MDL.

The failure of the parties to cooperate on this or any other issue in the

MDL was primarily due to undersigned counsel's accusation of a conspiracy

to pay paramilitary witnesses, via attorneys Terry Collingsworth and Ivan

Otero,2 in which the Appellees were also involved. Undersigned counsel

2
The Chiquita case is related to the Drummond v. Collingsworth case, Case
#16-11090 (11th Cir.), in that Mr. Collingsworth and Mr. Otero recruited
and paid up to a dozen imprisoned Colombian paramilitaries to testify they'd
been paid to murder people by various foreign corporations. In
Collingsworth, the Court is considering the extent to which the crime-fraud
exception to the attorney work product privilege applies to other lawyers or
law firms. Id. In the Chiquita case, Collingsworth has admitted negotiating
substantial payments to paramilitary witnesses, including a $200,000
payment to Raul Hasbun, and $50,000 payments to Jairo Alfonso Samper
Cantillo and Edgar Ariel Cordoba Trujillo. It also appears that Jose Gregorio
Mangones Lugo expected that his child's college education would be paid
for by Collingsworth. It's not clear whether any of these payments were
made, or whether they were exposed in time to prevent them. The full
extent of the enterprise may never be known, since so much evidence was
spoiled in the Collingsworth case.
One way the Appellees were involved in the enterprise was to draft a
motion to lift the stay of discovery so that Jose Gregorio Mangones Lugo, a
convicted paramilitary, could testify. A similar case against the Dole Food
Company in California state court was based almost entirely on Mr.
Mangones' declaration, and then dismissed when another imprisoned
paramilitary, Adolfo Enrique Guevara, complained in his deposition about
Mr. Otero's efforts to bribe him. The Appellees' draft motion wasn't filed,
but three years later, another motion was made, and granted, to take
Mangones' deposition. At about this time, a criminal investigation was
opened in Colombia based on Drummond's allegations of witness bribery.
Mangones then refused to testify in Chiquita, a fact the Appellees and their

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refused to sign a confidentiality agreement with the Appellees and other

counsel in Chiquita, who took the position that absent such an agreement,

they won't communicate at all. After I testified in a deposition in

Drummond v. Collingsworth, Mr. Collingsworth submitted declarations

from Douglass Mitchell (Appellants' counsel) and Jack Scarola (another

Chiquita Plaintiffs' counsel) in support of Collingsworth and the RICO

enterprise. The Court's ruling on the privilege issue in Drummond may

affect the Chiquita case as well, since Drummond is also seeking discovery

from Mr. Scarola, who made similar privilege-holder arguments in his own

Appeal and Petition for Writ of Mandamus to this Court. (Cases 14-15722

& 14-15749)

ARGUMENT

I. The Appellants suffered an injury in fact.

The issue on appeal is whether filing duplicate claims for clients of

another attorney, and then filing amended complaints for the same clients

over the objections of the other attorney over a period of five years, meets

the Constitutional standard for injury.3 Although half of the Appellee's brief

co-counsel Marco Simons did not disclose to the District Court, or to

Chiquita or myself, for more than 8 months.
3
The circumstances were aggravated by the use of a Colombian government
employee as an intermediary, and the lies told to obtain the powers of
representation. See Opening Brief at 6-7 n 7.

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makes 12(b)(6) dismissal arguments, the District Court held only that

Appellants' claims were unripe, or alternatively, that Appellants had not

suffered an injury in fact. "We have noted that, in deciding the question of

standing, it is not relevant that the substantive issues in the litigation might

be nonjusticiable." Flast v. Cohen, 392 U.S. 83, 102 (1968).

To establish injury in fact, a plaintiff must show that he or she

suffered an invasion of a legally protected interest that is concrete and

particularized and actual or imminent, not conjectural or hypothetical.

Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1548 (2016), citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1992).4

A. The Appellees confuse the concepts of injury and harm

throughout their brief.

In their brief, the Appellees use the words injury and harm

interchangeably. They are not. In the Restatement of Torts (2d), for

example, the word "injury" is used to denote "the invasion of any legally

protected interest of another,"5 consistent with Lujan. Restatement at Ch 1.

4
In Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992), the claimed
injury was "that the lack of consultation with respect to certain funded
activities abroad 'increas[es] the rate of extinction of endangered and
threatened species.' The Supreme Court held that "[o]f course, the desire to
use or observe an animal species, even for purely esthetic purposes, is
undeniably a cognizable interest for purpose of standing." Id. at 563.
5
The word "interest" is defined in the Restatement to denote the object of
any human desire. Id. at 1.

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7(1). The word "harm" is used to denote "the existence of loss or

detriment in fact of any kind to a person resulting from any cause." 6 Id. at

Ch 1. 7(2). The concepts of injury and harm are distinguished in a

comment in the Restatement as follows:

a. "Injury" and "harm" contrasted. ... The most usual form of injury
is the infliction of some harm; but there may be an injury although no
harm is done. Thus, any intrusion upon land is an injury, and, if not
privileged, gives rise to a cause of action even though the intrusion is
beneficial, or so transitory that it constitutes no interference with or
detriment to the land or its beneficial enjoyment. So too, the mere
apprehension of an intentional and immediate bodily contact, whether
harmful or merely offensive, is as much an "injury" as a blow which
breaks an arm. It is desirable to have a word to denote the type of
result which, if the act which causes it is tortious, is sufficient to
sustain an action even though there is no harm for which
compensatory damages can be given.

Restatement of Torts (2d), at Ch 1. 7 comment a.7

For the two examples noted, trespass and assault, an award of nominal

damages is generally sufficient to support an award of punitive damages.

6
The Restatement's definition of harm includes intangible and emotional
harms. "Acts or conditions which affect the personal tastes, likes, or dislikes
of a person may be either beneficial to him, or detrimental, or of no
consequence, the same as acts which affect physical things. In so far as
these acts are detrimental to him, he suffers harm. Id. at Ch 1. 7 comment
b. Thus, harm includes "the detriment resulting to him from acts or
conditions which impair his physical, emotional, or asthetic well-being, his
pecuniary advantage, his intangible rights, or his other legally recognized
interests." Id.
7
A search of Words and Phrases (2003) turned up hundreds of cases
defining injury and harm. Id. at Vol. 21A pp. 349-416 (cases defining
injury) and at Vol. 18 pp 131- 137 (cases defining harm).

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"The 'actual harm' in an intentional trespass is 'not in the damage done to the

land, which may be minimal, but in the loss of the individual's right to

exclude others from his or her property and ... this right may be punished by

a large damage award despite the lack of measurable harm.'" Feld v. Feld,

783 F.Supp.2d 76, 78 (D.D.C. 2011), citing Jacque v. Steenberg Homes, 209

Wis.2d 605, 617 (Wis. 1997) (upholding an award of $1.00 in nominal

damages and $100,000 in punitive damages in trespass case).

Similarly, punitive damages in assault cases do not depend on

compensatory damages. While [p]unitive damages are not allowable in

every case of assault and battery, they are permissible where there is

evidence of actual malice, wanton conduct, deliberate violence, or intent to

injure. District of Columbia v. Bamidele, 103 A.3d 516, 522 (D.C. 2014);

Wanis v. Zwennes, 364 A.2d 1193, 1195 (D.C. 1976), citing Montgomery

Ward & Co. v. Cliser, 267 Md. 406 (1972).

A third category of claims meriting punitive damages, despite the lack

of any identifiable loss, may be found in cases involving violations of

Constitutional rights. See Carey v. Piphus, 435 U.S. 247, 266 (1978)

("Common-law courts traditionally have vindicated deprivations of certain

'absolute' rights that are not shown to have caused actual injury through the

award of a nominal sum of money. By making the deprivation of such rights

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actionable for nominal damages without proof of actual injury, the law

recognizes the importance to organized society that those rights be

scrupulously observed; but at the same time, it remains true to the principle

that substantial damages should be awarded only to compensate actual injury

or, in the case of exemplary or punitive damages, to deter or punish

malicious deprivations of rights.") For example, a person may have a

spiritual stake in First Amendment values sufficient to give standing to raise

issues concerning the Establishment Clause and the Free Exercise Clause.

Abington School District v. Schempp, 374 U.S. 203 (1963).

The District Court, and the Appellee, view the Appellants' claims as

claims for future economic harms. The Appellants reject this

characterization.8 Citing Steel Co. v. Citizens for a Better Environment,

523 U.S. 83 (1998), the District Court misunderstood the nature of the

injury, believing it to be merely a byproduct of the litigation itself. Order,

Tab 6 at 10. Attorneys fees are one measure of the damages, not the injury.

8
The defendant makes the related argument that under Koziara v. City of
Casselberry, 392 F.3d 1302, 1305 (11th Cir. 2004), the alleged injuries are
too abstract to be justiciable. In Koziara, an exotic dancer challenged the
revocation of her employer's license to operate a strip club. The court held
that Koziara was free to pursue her profession at another establishment, and
that her claims for injunctive and declaratory relief were intended to prevent
future harms. The argument in the instant case is that the alleged injury is
already constitutionally sufficient, regardless of what may happen in the
future.

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B. The Appellants have a legally protected interest in the

underlying litigation.

It is axiomatic that a person has a "legally protected interest" in their

own lawsuit where they are the plaintiff. A person also has a legally

protected interest in their relationship with their attorney (hence the attorney

client privilege) and a legally protected interest in selecting their attorney. A

lawyer shall not represent a client, or shall withdraw from the representation

of a client, if: ... (3) the lawyer is discharged. Model Rule of Professional

Responsibility 1.16.

The Appellees still take the position that there's nothing wrong with

their business model, which includes targeted raids on existing MDL's,

bribery of foreign government officials to solicit clients of other lawyers,

and bribery of convicted criminals to lie in court. For these reasons, punitive

damages are justified.

II. Prudential ripeness is not an issue in this case.

In its Order, see Appx. Tab 6 at 10, District Court made no comment

on the concept of prudential ripeness, which appears to have little

application to this case. Courts recognize three prudential factors that may

prevent a case from being heard: (1) assertion of a third partys rights rather

than individual legal rights; (2) allegation of a generalized grievance rather

than an injury peculiar to such litigant; and (3) assertion of an injury outside

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the statutes or constitutional provisions zone of interest. Fed. Deposit Ins.

Corp. v. Morley, 867 F.2d 1381, 1386 (11th Cir.1989). The Appellant fails

to argue any of these factors and reiterates its Constitutional arguments in

the section of its brief pertaining to prudential ripeness.

III. Plaintiffs have stated claims for malpractice and invasion of

privacy.

Although the District Court didn't reach Appellees' Rule 12(b)(6)

Motion to Dismiss for Failure to State a Claim, the Appellants have stated

claims, since actual harm or damages are not elements of claims for either

legal malpractice or invasion of privacy. The case law uses the word

"injury." Appellants have already briefed this issue in their Opening Brief

and will only emphasize that injury, rather than harm, is required.

A. Legal Malpractice

In the District of Columbia, the elements of a claim for legal

malpractice are essentially the elements of a claim for negligence. A

plaintiff must demonstrate (1) the applicable standard of care; (2) a violation

of that standard; and (3) a legally cognizable injury as a result of such

violation. Carranza v. Fraas, 763 F.Supp.2d 113, 122 (D.D.C. 2011) citing

Kaempe v. Myers, 367 F.3d 958, 966 (D.C. Cir. 2004); O'Neil v. Bergan,

452 A.2d 337, 341 (D.C. 1982). (emphasis added) Likewise, the elements of

a claim for breach of fiduciary duty are: (1) the existence of a fiduciary duty,

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and (2) a violation of that duty that (3) proximately causes injury. Council

on American-Islamic Relations Action Network, Inc. v Gaubatz et al, 82

F.Supp.3d 344 (D.D.C. 2015); Shapiro, Lifschitz & Schram, P.C. v. Hazard,

24 F.Supp.2d 66, 75 (D.D.C.1998). (emphasis added) Breach of fiduciary

duty is inherent in any legal malpractice claim.

The Appellee wants the Court to apply Florida law to this claim, and

relies on a District Court decision, Picazio v. Melvin K. Silverman and

Associates, P.C., 965 F.Supp.2d 1411, 1414 (S.D.Fla. 2013), that uses the

word "harm" instead of injury. Rather than allowing the Appellee to forum

shop this legal issue,9 and rely on a District Court decision that didn't even

analyze it, the Court should apply the established case law in the District of

Columbia cited supra. Legal malpractice is just a type of negligence claim

against an attorney.

9
Should the Court choose to engage in a conflict of law analysis, the
complaint in Does 1-98 was first filed in the District of Columbia, where the
the underlying civil litigation against Chiquita Brands was also filed, and
where the criminal case against Chiquita was prosecuted. D.C. has an
interest in the civil case because that is where the criminal prosecution
occurred. The injury could also be said to have occurred in the District of
Columbia, where the Appellants' valid claims were filed in D.C. District
Court. The State of Florida has no contacts whatsoever with this case. On
information and belief, the MDL was centralized in Florida because of an
agreement between Chiquita Brands International, Inc. and Conrad &
Scherer, LLP.

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B. Invasion of Privacy

The the common-law tort of invasion of privacy, including public

disclosure of private facts and intrusion upon ones solitude or seclusion

require no special showing of harm or damages. See Randolph v. ING Life

Insurance and Annuity Co., 973 A.2d 702 (DC. 2009), nor does the related

tort of instrusion upon seclusion. Wolf v. Regardie, 553 A.2d 1213, 1217

(D.C. 1989) This was all argued in Appellant's Opening Brief. Id. at 14-19.

The Appellee raises statutes of limitations defenses for invasion of

privacy, arguing that 12-301 (4) of the D.C. Code provides a one-year

statute of limitations for libel and slander, rather than the 3 year limitations

period of 12-301 (8). However, when the Defendant filed its Third

Amended Complaint on September 20, 2012, this was a separate and distinct

tort from its prior publications, and far more eggregious, since at that point

Defendant was already on notice that the claims were duplicate ones, and

that they had been obtained through fraud. Further, since the names are still

available on the internet, there are continuing damages under Beard v.

Edmonson et. al, 790 A.2d 541 (D.C. 2002). The District Court

subsequently entered a Protective Order which treats plaintiffs' names as

Highly Confidential and prohibits the parties from publishing them in any

public filing. D.E. 1384. The District Court also ordered Plaintiffs' Counsel

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to stop publishing all the names of the plaintiffs in every filling, since it was

overloading the court's Electronic Case Filing system.

The Appellees also argue that both Florida and DC recognize a

litigation privilege "providing legal immunity for actions that occur in legal

proceedings." Appellee's Brief at 39. The argument is no more of a defense

than it was in the Drummond v. Collingsworth defamation case. The

publication may alternatively be considered as a type of legal malpractice,

since every court to have considered a motion to file under pseudonyms in

the MDL has granted it, and the republication was done for the bad motive

of exerting control over disputed cases. The District Court denied Chiquita's

motion to dismiss for forum non conveniens primarily on the basis that this

case would be too dangerous to litigate in Colombia. D.E. 1194.

Finally, the Appellee spends a lot of time analyzing Beck v.

McDonald, 848 F.3d 262 (4th Cir. 2017) which held that claims of harms

resulting from the release of personal data to the public were too speculative

to constitute a substantial risk of harm. The Defendant is again confusing

the concepts of injury and harm, and again characterizing Appellants' claims

as being based on future damages, which they are not. The Court need only

rule on whether there has been a constitutional injury-in-fact in this case, and

then let the Appellants make their case for punitive damages.

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Conclusion

For the foregoing reasons, the Court should REVERSE the District

Court's holding that Appellants have no standing because they have suffered

no injury in fact.

Respectfully submitted,

/s/ Paul Wolf

_____________________
Paul Wolf, CO Bar #42107
Attorney for Does 1-98
PO Box 46213
Denver, CO 80201
(202) 431-6986
[email protected]
fax: n/a

August 9, 2017

CERFITICATE OF COMPLIANCE
WITH WORD LIMITS

I hereby certify that:

1. This brief complies with the type-volume limitation of Fed. R. App. P.

32(a)(7)(B) because it contains 2442 words, as determined by Microsoft
Word 2010; and

2. This brief complies with the typeface requirements of Fed. R. App. P.

32(a)(5) and the type-style requirements of Fed. R. App. 32(a)(6) because it
has been prepared using Microsoft Word 2010 in Times New Roman, 14-
point font.

/s/ Paul Wolf

_______________
Paul Wolf

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CERTIFICATE OF SERVICE

I, Paul Wolf, counsel for Appellants and a member of the Bar of this
Court, certify that, on August 9, 2017, a copy of this Reply of Appellants
Does 1-98 was electronically filed with the Court using CM / ECF. On the
same day, ten paper copies were sent to the Clerk of the Court and one to the
Appellee care of Ilana Miller, Boies Schiller & Flexner LLP, 575 Lexington
Ave 7th Floor, New York, NY 10022.

/s/ Paul Wolf

_______________
Paul Wolf

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