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U.S. Ex Rel (Szymoniak) V American 10-01465 Fran Trapp, William Edgar-Judge Anderson Transcript Re. Szymoniak - (D.E. 188)
U.S. Ex Rel (Szymoniak) V American 10-01465 Fran Trapp, William Edgar-Judge Anderson Transcript Re. Szymoniak - (D.E. 188)
3
United States of America, ) C/A No. 0:10-cv-1465-JFA
4 ex rel. Lynn E. Szymoniak, )
)
5 Plaintiff, )
)
6 VERSUS ) Columbia, SC
) September 10, 2012
7 )
American Home MOrtqaqe )
8 Servicinq, Inc . , et al . , )
)
9 Defendants. )
)
10 ----------------------------)
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TRANSCRIPT OF MOTION HEARING
12 BEFORE THE HONORABLE JOSEPH F. ANDERSON, JR.
UNITED STATES DISTRICT JUDGE
13
14 Appearances:
Gary N. Smi.th, CM
Collllllbia, sc
0:10-cv-01465-JFA Date Filed 12/05/13 Entry Number 188 Page 2 of 27
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4 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
5 THE COURT: All riqht. This is a sealed hearinq,
6 I've instructed the clerk to seal off the courtroom. The only
8 court personnel.
11 staff.
12 THE COURT: All right. And I'm not sure how much I
13 can say on the record. I'm informed by Ms. Floyd that the
14 bank -- the movant doesn't even know the case number of this
15 case.
Gary N. Smith, CM
Columbia, SC
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1 is movinq for relief today, has been made aware of the pendency
15 for failinq to disclose somethinq that they knew about but were
20 with the first motion, but they do have a problem with the
21 second motion. And I don't know why they do, but I'm qoinq to
22 hear from the qovernment to find out why they have a problem
Gary N. Smith, CM
Columbia, SC
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1 a couple of reasons.
3 still just not clear as to why you can't aqree not to use this
14 of the qui tam seal on this case, the public is not able to do
18 ouqht to be heard after the qui tam seal is lifted to allow the
20 THE COURT: Well, that kicks the can down the road,
Gary N. Smith, CM
Columbia, SC
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7 urqe our motion to seal under local Rule 5.03 for the reasons
14 in this case, and there are many, has felt the similar need to
15 file a similar motion. But I'm not sayinq that you shouldn't
17 you have cited some authority that indicates that the existence
21 that is of the most concern to us, and that's the risk that we
22 think we face that the relator, or somebody else who would have
Gary N. Smith, CM
Columbia, SC
0:10-cv-01465-JFA Date Filed 12/05/13 Entry Number 188 Page 6 of 27
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16 while the qui tam seal is in place -- whether it's the relator
18 the court and make our argument that that shouldn't happen. In
Gary N. Smith, CM
Columbia, SC
0:10-cv-01465-JFA Date Filed 12/05/13 Entry Number 188 Page 7 of 27
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4 tam seal here, Your Honor, where we had partial lifts to allow
20 road.
21 For the time being, the qui tam seal protects all the
22 filings, all the seals in this case, and prevents both the
23 government and the defendant and the relator from talking about
Gary N. Smith, CM
Columbia, SC
0:10-cv-01465-JFA Date Filed 12/05/13 Entry Number 188 Page 8 of 27
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4 order.
13 disclosures.
17 to the qui tam seal and can' t make i t public in any event.
23 investiqation.
Gary N. Smith, CM
Columbia, SC
0:10-cv-01465-JFA Date Filed 12/05/13 Entry Number 188 Page 9 of 27
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1 that. And let me say, I can't aqree. I mean, even under FOIA
5 disclose
9 this case. It's been rockinq alonq a lonq time and every time
13 want me to excuse the movinq parties and then talk about it?
15 movinq party and then talk about it. So if we can resolve this
23 securities issues as they come up. I mean, there are many ways
Gary N. Smith, CM
Columbia, SC
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1 can be a dilemma.
3 of Your Honor's orders earlier this year when we had the issue
5 in on the motion.
9 securities counsel.
13 date?
20 with us.
Gary N. Smith, CM
Columbia, SC
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1 Is that fair?
6 now?
9 part of the information that you have, but whatever i t is, that
17 THE COURT: But can you tell them now what we are
19 here.
23 transaction.
Gary N. Smith, CM
Columbia, SC
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3 y'all --
18 concerns that Mr. Harpootlian would not have. But he's not
Gary N. Smith, CM
Columbia, SC
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3 under --
17 protection for the time beinq until the case is unsealed, and
18 at that point the defendant can come in and try to protect what
Gary N. Smith, CM
Columbia, SC
0:10-cv-01465-JFA Date Filed 12/05/13 Entry Number 188 Page 14 of 27
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9 securities disclosures. And the reason is, and they have hit
14 THE COURT: But you aren 1 t satisfied with the qui tam
21 information"?
23 make in the memo and the motion. The information that we have
Gary N. Smith, CM
Columbia, SC
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1 kept from the world? If I were your client I would want the
2 world to know I did the riqht thinq. I went into court, and
5 that investors miqht want to know about. Why do you not want
16 to it.
18 deal with this motion, and they are tellinq the court that they
Gary N. Smith, CM
Columbia, SC
0:10-cv-01465-JFA Date Filed 12/05/13 Entry Number 188 Page 16 of 27
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2 fiqht this out later? Can't you just aqree to keep i t under
7 that process, the public and the other parties are allowed to
15 requlation, then you can come back in and we will tee i t up and
18 Honor.
24 other.
Gary N. Smith, CM
Columbia, SC
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1 sure it's clear that that would apply, that prohibition -- the
4 investiqation.
14 understand the relator doesn't like the movant here, and the
16 and others -- I quess, and others in the qui tam action -- and
17 so she has a lot of bad information that she thinks she has
25 implausible scenario?
Gary N. Smith, CM
Columbia, SC
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6 the Internet and she says, "Look at them now, Homeward is going
9 reason why they would be moving the court to partially lift the
10 seal."
12 does she?
19 I'm not sure she could be subject to an order that comes out of
20 this --
22 and--
25 concern with respect to this relator and the able counsel who
Gary N. Smith, CM
Columbia, SC
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2 don't see any reason to assume that Mr. Harpootlian, Mr. Suqqs,
4 here will behave inappropriately and will violate the qui tam
5 seal.
6 THE COURT: We can' t find the order that y' all sent
16 defendant and their red line makinq the chanqes that they would
21 we are here.
25 of some of the unders tandinqs that we have come to. He's qot a
Gary N. Smith, CM
Columbia, SC
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2 the --
9 that the relator not see this stuff, or issues no order and we
10 all hope that the relator and her counsel follow the rules,
11 which they very well should, and not abuse the information,
12 Your Honor.
17 requlation that puts you at odds with your oath of office and
Gary N. Smith, CM
Columbia, SC
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1 time --
3 source?
6 another source?
9 and I'm sure that she does that probably every day.
12 record --
14 that risk.
20 qui tam seal that will remain in place until further order of
Gary N. Smith, CM
Columbia, SC
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3 while ago -- to provide for the process between now and the
4 lifting of -- before the qui tam seal gets lifted, that if the
11 that we filed i t --
15 motion.
19 in this
21 at this qui tam case and the claims here that we are aware of
25 that.
Gary N. Smith, CM
Columbia, SC
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2 record, that that was your concern, riqht? And I commend you
6 with that in terms of the danqer with the relator. But the
14 THE COURT: All riqht. Y'all can step out now and
20 court.
23 memorandum?
Gary N. Smith, CM
Columbia, SC
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8 him to tell you on the record, what i t was that he didn't want
9 you to see.
13 have extended this seal time and time aqain, the case is, I
14 think, maybe two years old, now how do we stand on this case?
19 that deadline.
22 very hard. We have qone out and done probe sample file reviews
Gary N. Smith, CM
Columbia, SC
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9 defendants. We continue --
12 decide if they wanted to join in the case for the plaintiff and
15 say.
19 settlement, is it?
22 seal.
24 about was all the information you have qathered and analysis
Gary N. Smith, CM
Columbia, SC
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10 a hard time extendinq this seal any more. I'm not qoinq to say
11 there is an absolute rule I'm not qoinq to, but I'm qoinq to
24 * * * * * * * * * * * * * * * * * * * * * * * * * * * *
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Gary N. Smith, CM
Columbia, SC
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2 CERTIFICATE OF REPORTER
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Gary N. Smith, CM
9 Official Court Reporter
United States District Court
10 District of South Carolina
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Gary N. Smith, CM
Columbia, SC