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Does V Boies Schiller Reply Brief
Does V Boies Schiller Reply Brief
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August 9, 2017
Case: 17-11993 Date Filed: 08/09/2017 Page: 2 of 20
Does 1-98, certifies that the following is a complete list of all persons that
Lee S. Wolosky
Sigrid S. McCawley
Stephen N. Zack
Karen C. Dyer
Douglass A. Mitchell
John Scarola
Walter LNU
Viviana Muoz
Ginna LNU
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Cristina LNU
Nelson Marin
Yolanda Marin
David R. Boyd
Stephen Kyriacou
John F. LaSalle
Joshua Libling
Ilana Miller
Brendon Olson
Meredith Schultz
W. Todd Thomas
TABLE OF CONTENTS
ARGUMENT ........................................................................................ 3
III. The Appellants have stated claims for legal malpractice and
invasion of privacy. ..................................................................... 7
CONCLUSION ...................................................................................... 13
i
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TABLE OF AUTHORITIES
CASES
Beard v. Edmonson et. al, 790 A.2d 541 (D.C. 2002) ............................ 11
Fed. Deposit Ins. Corp. v. Morley, 867 F.2d 1381 (11th Cir.1989) ....... 9
Jacque v. Steenberg Homes, 209 Wis.2d 605 (Wis. 1997) .................... 5-6
Koziara v. City of Casselberry, 392 F.3d 1302 (11th Cir. 2004) ........... 7
Montgomery Ward & Co. v. Cliser, 267 Md. 406 (1972) ...................... 6
ii
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Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998) ........ 7
OTHER
iii
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FACTS IN DISPUTE
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
already represented in court for more than two years, followed by a refusal
about to run, when the Appellants had to file a lawsuit to resolve the
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.
1
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The failure of the parties to cooperate on this or any other issue in the
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
2
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counsel in Chiquita, who took the position that absent such an agreement,
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
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
3
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makes 12(b)(6) dismissal arguments, the District Court held only that
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
Spokeo, Inc. v. Robbins, 136 S.Ct. 1540, 1548 (2016), citing Lujan v.
In their brief, the Appellees use the words injury and harm
example, the word "injury" is used to denote "the invasion of any legally
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.
4
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detriment in fact of any kind to a person resulting from any cause." 6 Id. at
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.
For the two examples noted, trespass and assault, an award of nominal
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).
5
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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
every case of assault and battery, they are permissible where there is
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
Constitutional rights. See Carey v. Piphus, 435 U.S. 247, 266 (1978)
'absolute' rights that are not shown to have caused actual injury through the
6
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actionable for nominal damages without proof of actual injury, the law
scrupulously observed; but at the same time, it remains true to the principle
issues concerning the Establishment Clause and the Free Exercise Clause.
The District Court, and the Appellee, view the Appellants' claims as
523 U.S. 83 (1998), the District Court misunderstood the nature of the
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.
7
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own lawsuit where they are the plaintiff. A person also has a legally
protected interest in their relationship with their attorney (hence the attorney
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
and bribery of convicted criminals to lie in court. For these reasons, punitive
In its Order, see Appx. Tab 6 at 10, District Court made no comment
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 an injury peculiar to such litigant; and (3) assertion of an injury outside
8
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Corp. v. Morley, 867 F.2d 1381, 1386 (11th Cir.1989). The Appellant fails
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
plaintiff must demonstrate (1) the applicable standard of care; (2) a violation
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,
9
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and (2) a violation of that duty that (3) proximately causes injury. Council
F.Supp.3d 344 (D.D.C. 2015); Shapiro, Lifschitz & Schram, P.C. v. Hazard,
The Appellee wants the Court to apply Florida law to this claim, 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
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.
10
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B. Invasion of Privacy
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.
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
Edmonson et. al, 790 A.2d 541 (D.C. 2002). The District Court
Highly Confidential and prohibits the parties from publishing them in any
public filing. D.E. 1384. The District Court also ordered Plaintiffs' Counsel
11
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to stop publishing all the names of the plaintiffs in every filling, since it was
litigation privilege "providing legal immunity for actions that occur in legal
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
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
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.
12
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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,
August 9, 2017
CERFITICATE OF COMPLIANCE
WITH WORD LIMITS
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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.
14