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October 2014
Case 1:14-cv-00740-MMS Document 16 Filed 08/17/15 Page 1 of 10
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
?LOUISE RAFTER, JOSEPHINE RATTIEN, STEPHEN RATTIEN, and PERSHING SQUARE CAPITAL MANAGEMENT, L.P.,
Plaintiffs,
v.
THE UNITED STATES OF AMERICA,
Defendant,
FEDERAL NATIONAL MORTGAGE ASSOCIATION and FEDERAL HOME LOAN MORTGAGE CORPORATION
Nominal Defendants.
Case No. 14-740C
Judge Margaret M. Sweeney
ORAL ARGUMENT REQUESTED
PLAINTIFFS’ MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
Plaintiffs Louise Rafter, Josephine and Stephen Rattien, and Pershing Square Capital Management, L.P. (“Plaintiffs”), file this Motion for Leave to File an Amended Complaint pursuant to Rule 15 of the Rules of the United States Court of Federal Claims (“RCFC”). A copy of the Proposed Amended Complaint is attached to this Motion as Exhibit 1. Plaintiffs have conferred with counsel for the United States of America (the “United States” or the “Government”), who has indicated that they were not able to respond today. Plaintiffs will promptly update the Court if the Government’s consent is obtained.
BACKGROUND
Plaintiffs filed their Complaint against the United States on August 14, 2014, asserting two causes of action: (1) a claim under the takings clause of the Fifth Amendment; and (2) a derivative claim on behalf of the Federal National Mortgage Association (“Fannie Mae”) and
Case 1:14-cv-00740-MMS Document 16 Filed 08/17/15 Page 2 of 10
the Federal Home Loan Mortgage Corporation (“Freddie Mac,” and collectively, the “Companies”) for implied breach of contract. Complaint, ECF No. 1. Plaintiffs’ claims arise out of an August 2012 amendment to a senior preferred stock purchase agreement between each Company and Treasury (the “Government Preferred Stock”), replacing the 10% coupon on the Government Preferred Stock with quarterly dividends which stripped the Companies of their entire net worth.
On October 10, 2014, this Court granted the Government’s motion for an extension of time to respond to Plaintiffs’ Complaint to within 60 days after the close of jurisdictional discovery in Fairholme Funds, Inc. et al. v. United States, No. 13-465C, (Fed. Cl.). See October 10, 2014 Order, ECF No. 9. Under this Court’s Order in Fairholme, jurisdictional discovery is currently scheduled to be completed on September 4, 2015. See July 9, 2015 Order, Fairholme, No. 13-465C, ECF No. 193. Accordingly, Defendant has until November 3, 2015 to respond to the Complaint. No discovery has been conducted in this case.
On August 14, 2015, Plaintiffs filed the Proposed Amended Complaint, styled as the “Amended Verified Complaint,” pursuant to Rule 15(a)(1)(B) of the Rules of the Court of Federal Claims. The Proposed Amended Complaint continues to assert a direct takings claim by all Plaintiffs, but eliminates the claim for implied breach of contract. It also adds derivative takings and illegal exaction claims on behalf of Fannie Mae, as well as direct claims for breach of contract, based on more detailed allegations concerning the same facts and circumstances alleged in the Original Complaint. See Exhibit 1.
On August 17, 2015, this Court issued an Order striking the Amended Verified Complaint stating that “ecause more than twenty-one days have passed since the filing of their original complaint, plaintiffs must provide defendant’s written consent to the amendment, or file
2
Case 1:14-cv-00740-MMS Document 16 Filed 08/17/15 Page 3 of 10
a motion to amend the complaint, pursuant to Rule 15(a)(2) of the Rules of the United States Court of Federal Claims.” Aug. 17, 2015 Order, ECF No. 15. The Court further instructed Plaintiffs that they “may refile their amended complaint with defendant’s written consent, or may submit a motion to file an amended complaint.” Id. As set forth above, the Government’s response to Plaintiffs’ request for consent to file the Proposed Amended Complaint is pending.
ARGUMENT1
A. PLAINTIFFS’ MOTION FOR LEAVE TO AMEND SHOULD BE GRANTED
RCFC 15(a)(2) provides that the court should “freely give[] leave when justice so requires.” In Foman v. Davis, 371 U.S. 178 (1962), the Supreme Court addressed the relevant considerations involved in deciding motions to amend pursuant to Rule 15 of the Federal Rules of Civil Procedure2:
In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.”
Id. at 182.
Further, while the granting or denial of a motion to amend is within the sound discretion
of the Court, a “a court ought to exercise liberally its discretion to grant leave to amend,” Cebe Farms, Ind. v. United States, No. 05-965C, 2012 WL 294666, at *1 (Fed. Cl. Jan. 31, 2012) (Sweeney, J.) (granting leave to amend). See also Joint Venture of Comint Sys. Corp. and Eyeit.com, Inc. v. United States, 100 Fed. Cl. 170, 171 (2011) (Sweeney, J.) (Foman declares
??1
quoted material in this brief, except as indicated.
Emphasis has been added to, and internal quotations, brackets and citations omitted from,
2
15(a), and consequently application of FED. R. CIV. P. 15(a) is highly persuasive in this court.”
“The text of RCFC 15(a) mirrors, in all pertinent respects, that found in FED. R. CIV. P. Katzin v. United States, 115 Fed. Cl. 618, 620 (2014).
3
Case 1:14-cv-00740-MMS Document 16 Filed 08/17/15 Page 4 of 10
that leave to amend “shall be freely given when justice so requires: this mandate is to be heeded;” granting leave to amend). Thus, “f the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.” Foman, 371 U.S. at 182. See also Joint Venture, 100 Fed. Cl. at 172 (“there is no reason why NetServices should not be freely given leave to file a second amended complaint”). Here, the Proposed Amended Complaint fully satisfies this standard.
1. The Proposed Amended Complaint Will Not Cause Any Prejudice
The Government will suffer no prejudice as a result of the Proposed Amended Complaint. A non-moving party claiming prejudice must demonstrate “that it will be severely disadvantaged or incapable of presenting facts or evidence with regard to the issues at hand.” Veridyne Corp. v. United States, 86 Fed. Cl. 668, 680 (2009). See also Anaheim Gardens v. United States, No. 93-655C, 2011 WL 4090899, at *6 (Fed. Cl. Sept. 14, 2011) (finding no prejudice, and granting leave, where amendment will not cause any “unfair surprise to the opposing party, unreasonably broaden the issues, or require additional discovery”). No evidence of any disadvantage to the Government is remotely present here.
The Proposed Amended Complaint is based on the same facts and circumstances as Plaintiffs’ original Complaint — challenging the August 2012 amendment to the Government Preferred Stock — and thus does not broaden the scope of fact discovery. See Veridyne, 86 Fed. Cl. 681 (allowing the Government to amend to plead new claims based on previously asserted allegations). Indeed, courts routinely permit amended pleadings to assert new claims based on new allegations where discovery is not complete and the cost of any additional discovery did not “substantiate the level of prejudice needed to overcome the liberal standard of RCFC 15(a)(2).” Id. See also Grand Acadian Inc. v. United States, No. 07-849 C, 2008 WL 4597131, at *1 (Fed.
?4
Case 1:14-cv-00740-MMS Document 16 Filed 08/17/15 Page 5 of 10
Cl. Oct. 9, 2008) (granting leave to amend answer where “plaintiff does not dispute that defendant’s Motion is timely and that it will not cause plaintiff undue prejudice”). Here, issue has yet to be joined and discovery has not even commenced. See October 10, 2014 Order, ECF No. 9.
Nor will the Proposed Amended Complaint prevent the Government from responding adequately to the new claims because this Court’s October 10, 2014 Order, which gives the Government’s until “sixty days after the completion of [still ongoing] jurisdictional discovery in Fairholme” to respond to Plaintiff’s complaint. Id. Accordingly, there remains more than ample time for the Government to respond adequately to the amended pleading and to conduct appropriate discovery. See Meyer Grp., Ltd. v. United States, 115 Fed. Cl. 645, 650 (2014) (finding no “ndue prejudice,” and granting leave to amend complaint after denial of summary judgment motion where plaintiff gave notice of potential counterclaims in cross motion for summary judgment).
Accordingly, allowing Plaintiffs to amend their complaint will not prejudice the Government.
2. No Undue Delay, Dilatory Motive or Bad Faith by Plaintiffs
The Proposed Amended Complaint will not cause any delay, much less undue delay. See State of Alaska v. United States, 15 Cl. Ct. 276, 280 (1988) (“mere delay, without some showing of prejudice, bad faith, or futility is insufficient to deny a motion to amend a complaint”); Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993) (“Mere delay, . . . absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend.”). There has been no delay whatsoever in seeking leave to file the Proposed Amended Complaint, let alone any evidence of bad faith or ill motive. To the contrary, the proposed
?5
Case 1:14-cv-00740-MMS Document 16 Filed 08/17/15 Page 6 of 10
amendment comes at a very early stage in the case — only a year after the original Complaint was filed, well before the Government must file any responsive pleading or motion, and before the parties have even begun to conduct discovery. See e.g., Joint Venture, 100 Fed. Cl. at 172 (granting leave to file second amended complaint when Defendant and defendant-intervenors had not yet responded to first amended complaint). Courts have historically allowed leave to amend at much later points in litigation. See, e.g., Katzin v. United States, 115 Fed Cl. 618, 621 (2014) (no undue delay where “case itself is less than two years old, and basic discovery is still underway, although fact discovery has closed within the past few days); Meyer Grp., 115 Fed. Cl. at 649 (holding delay in amending until 12 months after defendant’s original answer and six months after plaintiff’s amended complaint “insufficient by itself to warrant denial of leave to amend” and granting leave to amend); Tommaseo v. United States, 80 Fed. Cl. 366, 373 (2008) (“the timing of the Second Amended Complaint, approximately two years after filing the October 17, 2005 Complaint, is not excessive”).
3. The Proposed Amended Complaint Is Not Futile
Nor can Plaintiffs’ Proposed Amended Complaint be denied on the basis of futility. “[A] plaintiff seeking to overcome an argument that the filing of an amended complaint would be futile need only establish that its proposed amendment states a claim on which relief could be granted and offer sufficient facts supporting the amended pleading that the claim could survive a dispositive pretrial motion.” Savantage Fin. Servs., Inc. v. United States, 119 Fed. Cl. 246, 252 (2014) (granting leave to file amended complaint). See also Centech Grp., Inc. v. United States, 78 Fed. Cl. 658, 661 (2007) (granting leave to amend and holding that “futility ... requires the Court to determine that the proposed amendment is ... so wholly and patently lacking in merit that it cannot possibly succeed”). The Government bears “the burden to show futility.” Mead v.
?6
Case 1:14-cv-00740-MMS Document 16 Filed 08/17/15 Page 7 of 10
City First Bank of DC, N.A., 256 F.R.D. 6, 7-8 (D.D.C. 2009) (granting leave to amend where defendant “has not carried its burden of establishing ... futil[ity.]”). See also Dave v. District of Columbia, 811 F.Supp. 2d 111, 118 (D.D.C. 2011) (“defendant bears the burden of proving the futility of the proposed claims”).
Here, in the Fairholme action involving certain related claims, this Court specifically held that the complaint could not be dismissed at the early stages of the litigation pursuant to a RCFC 12(b)(6) motion before plaintiffs had an opportunity to conduct certain discovery “relevant to the disputed factual issues about Fannie and Freddie’s solvency and the reasonableness of expectations about their future profitability, as well as . . . why the government allowed the preexisting capital structure and stockholders to remain in place, and whether this decision was based on the partial expectation that Fannie and Freddie would be profitable again in the future.” Feb. 26, 2015 Order, at 4, Fairholme, No. 13-465C (Fed. Cl.) (ECF. No. 32). Because similar discovery issues preclude dismissal of Plaintiffs’ Proposed Amended Complaint, amendment is not futile.3
B. DEFENDANTSHAVENOTFILEDARESPONSIVEPLEADING,ANDPLAINTIFFSMAY AMEND “AS A MATTER OF COURSE” WITHOUT LEAVE OF THE COURT
In any event, Plaintiffs respectfully submit that, under Rule 15(a)(1)(B), Plaintiffs have the right to file their amended pleading “as a matter of course,” without Defendant’s consent or leave of this Court. Under RCFC 15(a)(1)(B), a “party may amend its pleadings once as a matter of course within . . . [,] if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion [to dismiss.]” Because
??3
high burden, Plaintiffs respectfully reserve the right to respond further in a reply brief.
Should the Government oppose this motion on futility grounds and attempt to meet this 7
Case 1:14-cv-00740-MMS Document 16 Filed 08/17/15 Page 8 of 10
the Government has not filed any responsive pleading or motion in this case, the Proposed Amended Complaint falls within the time frame authorized by Rule 15(a)(1)(B).
Prior to its amendment in 2009, Federal Rule of Civil Procedure 15(a) stated that a “party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served.” Rather than change this rule, the 2009 amendment clarified that a party may file an amended pleading “to which a responsive pleading is required” (e.g., a complaint) up to 21 days after a responsive pleading. The Advisory Committee made this clear: the “right to amend once as a matter of course is no longer terminated by service of a responsive pleading.” FED. R. CIV. P. 15(a), Advisory Committee’s Notes to 2009 Amendment. See also Charles Alan Wright et al., 6 Fed. Prac. & Proc. Civ. § 1483 (“The right to amend [as a matter of course] no longer is terminated by the service of a responsive pleading. Instead, Rule 15(a) ... extends the right to amend as a matter of course.”); 61A Am. Jur. 2d Pleading § 704 (Rule 15(a)(1)(B) “has been changed in two ways: first, the right to amend once as a matter of course terminates 21 days after service of a motion under the specified provisions; and second, the right to amend once as a matter of course is no longer terminated by service of a responsive pleading”).4 Accordingly, Courts have consistently held that under Rule 15, as amended in 2009, a party has the right to amend once without leave of court before a responsive pleading is filed. See, e.g., Villery v. Dist. of Colum., 277 F.R.D. 218, 219 (D.D.C. 2011) (“A complaint is a pleading to which a responsive pleading is required. Therefore, under Rule 15(a)(1)(B), a party has an absolute right to amend
4
?RCFC 15(a)(1)(A), which permits a party to file an amended pleading once as a matter of course “21 days after service of the pleading,” refers to pleadings to which a responsive pleading is not allowed (e.g., an answer or answer to counter-claim). See Fed. R. Civ. P. 15(a), Advisory Committee’s Notes to 2009 Amendment (“Finally, amended Rule 15(a)(1) extends from 20 to 21 days the period to amend a pleading to which no responsive pleading is allowed and omits the provision that cuts off the right if the action is on the trial calendar.”).
?8
5
Case 1:14-cv-00740-MMS Document 16 Filed 08/17/15 Page 9 of 10
its complaint at any time from the moment the complaint is filed until 21 days after the earlier of the filing of a responsive pleading or a motion under Rule 12(b), (e), or (f).”).5
Moreover, even if the Government’s consent, or leave of the Court, is now required to file the Proposed Amended Complaint before the Government files a responsive proceeding, given Plaintiffs’ undisputed right to amend its pleading up to “21 days after service of a responsive pleading . . . or motion [to dismiss],” there can be no conceivable prejudice to the Government if leave to amend is permitted before responsive papers are filed.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court grant its motion for leave to file the Proposed Amended Complaint attached hereto.
?See also Souffrance v. Warden, Lebanon Corr. Inst., No. 1:09-CV-217, 2011 WL 463096, at *4 (S.D. Ohio Feb. 4, 2011); (“[U]nder Rule 15, a party has a right to amend once before a responsive pleading is filed.”); In re Legal Xtranet, Inc., No. 11-51042-LMC, 2011 WL 3652756, at *2 (Bankr. W.D. Tex. Aug. 19, 2011) (“In short, Rule 15(a) allows a party to amend its pleading once as a matter of course until 21 days after a responsive pleading or Rule 12(b), (e), or (f) motion is served, or within 21 days if the party's earlier pleading required no response.”); Nunn v. Hunt, No. 5:11-CT-3227-BO, 2013 WL 2468349, at *1 (E.D.N.C. June 7, 2013) (“a party may amend his complaint once as a matter of right at any time before a responsive pleading is served”); Rosin v. Thaler, 417 F. App'x 432, 434 (5th Cir. 2011) (Plaintiff “was entitled to amend his pleading once as a matter of right because the respondent had not yet filed a responsive pleading.”); Haddix v. Burris, No. C-12-1674 EMC PR, 2013 WL 2950655, at *2 (N.D. Cal. June 14, 2013) (“Haddix had a right to amend his complaint once without leave of court because no responsive pleading or motion had yet been filed.”).
9
Case 1:14-cv-00740-MMS
Document 16 Filed 08/17/15 Page 10 of 10
Dated: August 17, 2015
Respectfully submitted,
/s/ Gregory P. Joseph Gregory P. Joseph Counsel of Record
Of Counsel
Mara Leventhal Sandra M. Lipsman Christopher J. Stanley Gregory O. Tuttle
JOSEPH HAGE AARONSON LLC 485 Lexington Avenue, 30th Floor New York, New York 10017
Tel. (212) 407-1200
Fax (212) 407-1280 Email: gjoseph@jha.com
Counsel for Plaintiffs
?767497
10
Thanks Ospreye! Much appreciated!!
Oops!
NYT filed their motion, gov responded to NYT's motion, NYT responded to gov's response.
There are some responses due the 20th also. Stock up on the Tums!
It seems a new tone with the new attorney?
Yes JJ8, Nugn continues to be an interesting stock. Happy to see the volume also. I grabbed some at $1.72 today. GLTU & all!
Gov already responded, so I believe Sweeney next.
It's 18 pages, but here's starting at the bottom of 14-18.
But wherever the burden of persuasion lies, there is no basis on this record for concluding that these two depositions deserve confidentiality.9 The Government says that the transcripts
contain “market-sensitive and confidential information regarding the future of the conservatorships and the wind down of Fannie Mae and Freddie Mac and confidential testimony regarding the projections of profitability for these entities.” (Govt. Mem. at 15.) To make its case, the Government principally cites to the declaration of Melvin L. Watt, Director of the Federal Housing Finance Agency, that “disclosure of projections that suggested (or that market participants interpreted as suggesting) that the Enterprises’ financial conditions were worse than previously assumed could . . . increase current prices in the primary and secondary market.” (Id. at 16.) The Government also expresses concern that disclosure might improperly provide certain types of confidential information to Freddie Mac and Fannie Mae. (Id.)
But Mr. Watts was not speaking to the deposition testimony of either Mr. DeMarco or Mr. Ugoletti. His declaration was made a year before either one of them testified and was based on his review of plaintiffs’ document requests. (See Declaration of Melvin L. Watt (“Watt Dec.”) (Docket No. 49, Appendix A), ¶ 3.) Mr. Watts may be correct that certain documents called for by plaintiffs’ request could be market-sensitive, but that says nothing about the sensitivity of the testimony actually given in the two depositions at issue here. Currently, the only subject before the court is a jurisdictional dispute, and as a result, the testimony in the depositions was limited to the time period prior to September 30, 2012. (Govt. Mem. at 15-16.) The two deponents were speaking to their former roles at Treasury and FHFA and their actions in the period from 2008, when the bailout occurred, to the 2012 cutoff date. The Government states that projections made before that date “cover years far in the future.” (Gov. Mem. at 16.) But the Government conveniently stops short of saying whether any such projections were in the deposition transcripts themselves and stands silent on whether the information is so stale – three
or more years later – as to eliminate any concern about market-sensitivity. While the Government cannot be expected to reveal confidential information in making its argument against de-designation, describing the testimony actually given by these two witnesses in their depositions does not require any disclosure of secret information. For the same reason, the Government errs in relying on the Court’s decision on the Howard motion (see Gov. Mem. at 3), which did not and could not address the contents of the two deposition transcripts at issue.
Tellingly, Mr. Watt did speak directly at one point in his declaration to information that dates to a time before his administration. He said that disclosure of older documents “that reflect prior thinking of Agency personnel concerning matters about which the Agency may follow a different course during my tenure as Director are likely to lead to the public and market participants second-guessing every decision . . .” (Watt Dec. at ¶ 13 (emphasis added).) Stated plainly, Mr. Watt is not concerned with the financial sensitivity of the information, but whether the public will have the temerity to raise questions about the decisions his agency makes.
Putting aside that breathtaking “don’t bother me” view of the public from a public servant, it is clear that a fear of public criticism does not rise to either good cause under Rule 26(c) or protected information under the Protective Order.
Before finding good cause for confidentiality the Court should be satisfied that the record shows “defined, specific, and serious injury” will arise from disclosure and that the harm is established through “particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements.” Wright & Miller, Federal Practice and Procedure: Civil § 2035; Carlson v. Geneva City Sch. Dist., 277 F.R.D. 90, 94 (W.D.N.Y. 2011); see also Allen v. City of New York, 420 F. Supp. 2d 295, 302 (S.D.N.Y. 2006); Havens, 1995 U.S. Dist. Lexis
5183, at *29. Nothing approaching that exists in this record, and the necessarily dated nature of the testimony undermines the case for continued confidentiality.10
The Government’s case is not helped by its half-hearted claim that the witnesses “reasonably relied” on the Protective Order. (Govt. Mem. at 21.) Where confidentiality designations are specifically subject to review and challenge, reliance is not reasonable. See, e.g., Schiller, 2007 U.S. Dist. LEXIS 4285, at *14; Allen, 420 F.Supp.2d at 300-0; In re Iwasaki, No. M19-82, 2005 U.S. Dist. LEXIS 10185, at *4-5 (S.D.N.Y. May 26, 2005); Fournier v. McCann Erickson, 242 F.Supp.2d 318, 341 (S.D.N.Y. 2003); see also SEC v. TheStreet.com, 273 F.3d 222, 230-31 (“some protective orders may not merit a strong presumption against modification [such as] protective orders that are on their face temporary or limited”). Here, of course, prior to the depositions the parties had agreed that confidentiality would be subject to review and negotiation and, ultimately, court adjudication in the event of a dispute. More than that, both witnesses, like all witnesses, had an obligation to testify fully and truthfully and cannot now say they would have testified otherwise except for the Protective Order.
There can be no doubt that protection of sensitive market information is a proper basis for a protective order. But there is also no doubt that the public has a powerful interest in monitoring this litigation and understanding more fully the consequential decision-making that led to the conservatorship and to the steps taken by the Government in the years that followed. Here, broad and unspecified generalities about possible market effects, none anchored to the specific transcripts at issue, are insufficient to warrant confidentiality. The Court advised the parties that they were required to “explain [their] reasoning” for the confidentiality of particular
documents in a “meaningful” way. (Transcript of July 16, 2014 Status Conference (Docket No. 75) at 41.) That is notably absent here.
CONCLUSION
For all of the foregoing reasons, the Court should grant The Times motion to intervene, order that the “protected information” designations be removed from the Transcripts, and grant such other relief as the Court deems just and proper.
Dated: New York, New York August 17, 2015
__/s/____________________________ David E. McCraw, Esq.
Legal Department
The New York Times Company
620 8th Avenue
New York, NY 10018 Phone: (212) 556-4031 Fax: (212) 556-1009 mccraw@nytimes.com
08/17/2015 REPLY to Response to Motion re 177 MOTION to Intervene And For Order De-Designating Discovery Materials , filed by THE NEW YORK TIMES COMPANY. (McCraw, David)
LOL!
NuGene International Inc. Announces 153% Revenue Growth in Q2 versus Q2 2014
PR Newswire NuGene International, Inc.
IRVINE, Calif., Aug. 17, 2015 /PRNewswire/ -- NuGene International, Inc. (the "Company" or "NuGene") (NUGN) develops, manufactures and markets advanced skin and hair care lines utilizing adipose derived human stem cells and stem cell media. The Company announced that it had sales of $536,363 in Q2 2015 compared to $211,667 in Q2 2014.
A spokesperson for the Company attributed the increase to the Company's ongoing focus on expanding its distribution through professional channels, including dermatologists, plastic surgeons, medical offices and spas, resulting in the increased sales when comparing Q2 2015 to Q2 2014. NuGene expects to continue to expand direct online sales and sales through upscale retail locations.
During the second quarter of 2015, NuGene began recruiting and training sales representatives who will concentrate on opening new distribution channels while providing each existing customer with a dedicated point of contact within the company. NuGene also expanded its consumer product line by introducing a Skin Care Trial Pack during June 2015 which includes Universal Cream, Universal Serum, Eye Serum and the Light & Bright Gel in convenient 10 ml bottles. Management believes that this will provide first-time consumers with an attractive introductory means of evaluating NuGene products on a trial basis.
The NuGene's research team continued to develop additional consumer products, with the development of a facial mask, facial scrub and hydrating shampoo which management expects to launch during the third quarter of 2015.
The Company's subsidiary, NuGene BioPharma, Inc., continues to develop the SkinGuardian® product line of skin protectant, antiseptic and moisturizing lotion (SkinGuardian was acquired by the Company in March 2015). Management anticipates launching the SkinGuardian product with the added stem cell media during the latter part of 2015 or early 2016 in over the counter departments of pharmacies and other distribution channels.
Ali Kharazmi, co-founder and CEO of NuGene International, stated, "We are delighted to report year over year revenue growth as our core business continues to expand and our brand gains greater name recognition. We are starting to see the commercial benefits of our newly created dedicated sales force. From here we hope to build our strategic vision of becoming a leading cosmetics brand. We continue to invest in developing both our cosmeceutical and biopharmaceutical product lines, while expanding our distribution base through agreements such as the one recently announced with Jon'Ric International."
About NuGene, Inc.
NuGene International, Inc. specializes in developing, manufacturing and marketing proprietary regenerative cosmeceutical and pharmaceutical products based on adipose derived human stem cell and human stem cell media. The US Department of Health and Human Services calls regenerative medicine the "next evolution of medical treatments." The regenerative medical market which includes cosmeceuticals and pharmaceuticals was estimated at $7.2 Billion in the US in 2014 and is expected to rapidly grow in the coming years according to RNCOS Business Consultancy Services Global Cosmeceuticals Market report. NuGene's cosmeceutical and pharmaceutical products are based on proprietary stem cell based regenerative formulations derived from non-controversial, adult human stem cell derived media obtained from adipose tissue. NuGene's exclusive products combine its in-house advancements, proprietary technologies, and patent pending formulations. The company has four patents pending covering 15 unique applications. NuGene's goal is to leverage its knowledge and expertise to develop age defying cosmeceutical skincare and hair care products in addition to pharmaceutical products based on the same regenerative science platform.
Forward Looking Statements
This document contains "forward-looking statements," statements related to future, not past, events. In this context, forward-looking statements often address NuGene's expected future business and financial performance and financial condition, and often contain words such as "expect," "anticipate," "intend," "plan," "believe," "seek," "see," "will," "would," or "target." Forward-looking statements by their nature address matters that are, to different degrees, uncertain, such as statements about our current and future sales, planned operations, marketing activities and other operational, sales and financial plans. These may include our ability to convert pre-order commitments/wins into orders; timing of planned and anticipated product deliveries; the price we realize on orders since commitments/wins are stated at list prices; customer actions or developments such as customer returns and other factors that may affect the level of demand and performance of the major industries and customers we serve; the impact of regulation and regulatory, investigative and legal proceedings and legal compliance risks, including the impact of regulation and litigation; adverse market conditions, timing of and ability to obtain required regulatory approvals, or other factors relating to us; the impact of potential information technology or data security breaches; and the other factors that are described in "Risk Factors" in NuGene's Annual Report on Form 10-K for the year ended December 31, 2014. These or other uncertainties may cause our actual future results to be materially different than those expressed in our forward-looking statements. We do not undertake to update our forward-looking statements. This document also contains non-GAAP financial information. Management uses this information in its internal analysis of results and believes that this information may be informative to investors in gauging the quality of our financial performance, identifying trends in our results and providing meaningful period-to-period comparisons.
Investor/ Media Relations:
Jay Goth
951.704.6792
http://finance.yahoo.com/news/nugene-international-inc-announces-153-110000553.html?.tsrc=applewf
They are estimating have a status conference end of August.
@DorfmanJeffrey: @Fanniegate101 Watch for one on @ForbesOpinion on Monday.
Yes, he seems to have had quite an interesting, extensive career. I assume his latest endeavor, hedge fund consulting, New York, might be a clue to his interest in Fnma, Fmcc? Just guessing. His tweet said "buying Fnma, Fmcc" with follow up tweets of support. I guess someone could request an analysis from him? :)
YW! 955
@ShaleIntel: @nsfraudbuster @Fanniegate101 @FreeFannie sky's the limit
Yes, main point being Perry Capital stating it is essential for their team to review the sealed docs.
We'll see what happens when they get back from their vacations! :)
estimating late August for next status conference
DC Circuit (appeals)
USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 1 of 6
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
??PERRY CAPITAL LLC, Appellant,
Nos. 14-5243 (L),
14-5254 (con.), v. 14-5260 (con.),
14-5262 (con.)
JACOB J. LEW, et al., Appellees.
APPELLANT PERRY CAPITAL LLC’S RESPONSE TO MOTION FILED UNDER SEAL FOR JUDICIAL NOTICE
On July 29, 2015, Fairholme Fund and Fairholme Funds, Inc. (collectively “Fairholme”) filed a motion under seal requesting that this Court take judicial notice of documents that were produced by the government in a separate litigation involving the Net Worth Sweep in the Court of Federal Claims. Under Seal Motion (July 29, 2015) (D.E. 1565601). Pursuant to Federal Rule of Appellate Procedure 27(a)(3), Perry Capital, LLC (“Perry Capital”) submits this response in support of Fairholme’s motion.
The opening merits brief filed by Perry Capital, Fairholme, and Arrowood Indemnity Co. in this consolidated appeal argues, among other things, that the district court erred when it relied on flawed and incomplete administrative records. Initial Opening Brief for Institutional Plaintiffs, at 67-73 (June 29, 2015) (D.E.
??
USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 2 of 6
1560037). An administrative record must represent the whole of the record before the agency at the time of the challenged agency action. Id. at 68. The records below, however, were clearly incomplete because the government failed to include key, relevant documents—documents that evidently were before the agencies at the time the Net Worth Sweep was executed. Id. at 68-71.
Although Perry Capital does not currently have access to the documents appended to Fairholme’s motion for judicial notice, it is highly likely that those documents serve as further proof that the administrative records were incomplete and that the district court, at a minimum, should have ordered supplementation. The documents may also serve to undermine or refute entirely the government’s purported rationales for the Net Worth Sweep, and thus support Perry Capital’s arguments on the merits of this appeal. Perry Capital therefore generally supports Fairholme’s request for this Court to take judicial notice of those documents produced by the government related to the Net Worth Sweep.
Perry Capital currently lacks access to the documents attached to Fairholme’s motion because the documents are subject to a protective order issued by the Court of Federal Claims. See Fairholme Funds, Inc. v. United States, No. 13-465C (Fed. Cl.) (D.E. 217). Although Circuit Rule 47.1(d)(2) requires that “[e]ach party” to a case be served with copies of material filed under seal, that requirement applies only “if the party is entitled to receive the material under seal.”
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USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 3 of 6
Circuit Rule 47.1(d)(2). Because Perry Capital is not yet “entitled” to access the materials under the protective order issued by the Court of Federal Claims, Fairholme has not provided Perry Capital with those materials. Thus, only the parties to this appeal that are also parties to the Court of Federal Claims action— including the government—currently have access to Fairholme’s motion and the attached materials.
It is extremely rare and unusual for a single party to a litigation to be barred from viewing documents filed in its case. Cf. Abourezk v. Reagan, 785 F.2d 1043, 1060-61 (D.C. Cir. 1986) (explaining the limited circumstances under which courts may “dispose of the merits of a case on the basis of ex parte, in camera submissions”), aff’d, 484 U.S. 1 (1987); U.S. ex rel. Boisjoly v. Morton Thiokol, Inc., CIV. A. No. 87-0209, 1987 WL 10232, at *4 (D.D.C. Apr. 15, 1987) (lifting seal on documents to allow a litigating party access to documents). Not only is Perry Capital barred from reviewing the motion filed under seal and the attached documents, but Perry Capital also will likely be unable to review the government’s response to that motion or any further briefing containing sealed materials. In addition, it is significant that this Court has suspended the merits briefing schedule pending resolution of the motion for judicial notice, demonstrating that the document issue is affecting Perry Capital’s rights in this appeal.
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USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 4 of 6
For this Court’s information, Perry Capital has filed a motion before the Court of Federal Claims requesting that Perry Capital’s counsel be granted access to the documents filed in this Court, and counsel has agreed to be bound by the protective order. That motion is currently pending.
Dated: August 13, 2015
Respectfully submitted,
/s/ Theodore B. Olson
Theodore B. Olson
Douglas R. Cox
Matthew D. McGill
GIBSON, DUNN & CRUTCHER LLP 1050 Connecticut Avenue, N.W. Washington, D.C. 20036
Telephone: 202.955.8500 Facsimile: 202.467.0539
Janet M. Weiss
GIBSON, DUNN & CRUTCHER LLP 200 Park Avenue
New York, N.Y. 10166
Telephone: 212.351.3988
Facsimile: 212.351.5234
Counsel for Perry Capital LLC
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USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 5 of 6
CERTIFICATE OF SERVICE
I certify that on this 13th day of August, 2015, I caused the foregoing to be filed with the Clerk of the United States Court of Appeals for the D.C. Circuit using the appellate CM/ECF system. Service was accomplished on the following persons by the appellate CM/ECF system:
Mark B. Stern
Alisa B. Klein
Abby Christine Wright
U.S. Department of Justice Civil Division, Appellate Staff 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 Telephone: 202-514-2000 mark.stern@usdoj.gov alisa.klein@usdoj.gov abby.wright@usdoj.gov
Counsel for the U.S. Department of the Treasury and Secretary Jacob J. Lew
Charles J. Cooper
Brian W. Barnes
Howard Curtis Nielson, Jr
Peter A. Patterson
David H. Thompson
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W. Washington, D.C. 20036 Telephone: 202.220.9600 Facsimile: 202.220.9601
Counsel for Fairholme Funds, et al.
Howard N. Cayne
Asim Varma
David B. Bergman
ARNOLD & PORTER LLP 555 12th Street, N.W. Washington, D.C. 20004 Telephone: (202) 942-5000 Facsimile: (202) 942-5999 Howard.Cayne@aporter.com Asim.Varma@aporter.com David.Bergman@aporter.com
Counsel for Defendants Federal Housing Finance Agency and Director Melvin L. Watt
USCA Case #14-5243 Document #1567760 Filed: 08/13/2015 Page 6 of 6
Hamish P.M. Hume
BOISE, SCHILLER & FLEXNER LLP 5301 Wisconsin Avenue, N.W.,
Suite 800
Washington, D.C. 20015
Telephone: 202-237-2727
Facsimile: 202-237-6131 hhume@bsfllp.com
David L. Wales
BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP
1285 Avenue of the Americas
New York, N.Y. 10019
Telephone: 212-554-1409
Facsimile: 212-554-1444
Blair A. Nicholas
David R. Kaplan
BERNSTEIN LITOWITZ BERGER & GROSSMAN LLP
12481 High Bluff Drive, Suite 300
San Diego, CA 92130
Telephone: 858-793-0070
Facsimile: 858-793-0323 blairn@blbglaw.com davidk@blbglaw.com
Jay W. Eisenhofer
GRANT & EISENHOFER, PA 485 Lexington Avenue
New York, N.Y. 10017 Telephone: 646-722-8500 Facsimile: 646-722-8501 jeisenhofer@gelaw.com
Geoffrey C. Jarvis
Michael J. Barr
GRANT & EISENHOFER, PA 123 Justison Street Willmington, DE 19801 Telephone: 302-622-7000 Facsimile: 302-622-7100 gjarvis@gelaw.com mbarry@gelaw.com
Lee D. Rudy
Eric L. Zagar
Matthew A. Goldstein
KESSLER TOPAZ MELTZER & CHECK, LLP
280 King of Prussia Road
Radnor, PA 19087
Telephone: 610-667-7706
Facsimile: 610-667-7056
Interim Co-Lead Class Counsel for Class Plaintiffs
"Besides, the government has grown fond of the GSE profits. Just three companies paid more in tax last year than Fannie and Freddie did in dividends: Exxon, Chevron and Apple."
http://www.ft.com/intl/cms/s/0/0ea0d04c-4260-11e5-b98b-87c7270955cf.html#axzz3inkl5TNu
Yes, they own the largest company that produces manufactured housing.
Fairholme filed and asked for judicial notice, gov needs to respond by 8/20.
From Obi
Thanks. Judicial notice is a rule in the law of evidence (see link given below) that provides opportunity to submit facts into evidence when that fact is considered adjudicative and authoritative. Adjudicative evidence here means evidence related to making a decision in a legal case or proceeding.
Judicial notice can be given by the parties involved as is indicated in the filing and there is no need, by the Rules of Federal evidence for witnesses, discovery or briefings, etc. beforehand.
The appearance of the judicial notice can be correlated with US Court of Appeals suspension of the briefing schedule and it is being correlated by some.
There is speculation that the suspension is related to the the Myron Steele amicus curiae brief. However, that brief was submitted to the US Court of Appeals on 7/6/2015 (see link below) and it seems that if that had anything to do with the suspension, the Court was very tardy.
So, it is not known here, what was actually submitted as adjudicative evidence on 7/29/2015 (it may or may not be significant) or what the actual facts are for the suspensions. Given the room that uncertainty provides, imaginations will fly to fill up the room with this seeming correlation or with Myron Steele or something else, but it is surer and simpler to wait and see. Such imaginings are superfluous to any actual fact or outcome.
It seems Obama is also heavily influenced by Lew. I'd assume he would wait direction from Lew. It becomes more apparent each time with pending legislation. Like the Frank-Dodd, Lew said (basically) if there is any watering down, he is going to advise Obama to veto.
Yes, it appears that Perry (lawyers and those given access) have to ask to see what was filed even though they are the lead.
It was back on 7/6.
In the appeals case Perry is lead, 3 other cases consolidated, Fairholme is one. Perry's attorneys, (just those that qualify to review protected info) want access to this newly filed protected info.
USCA Case #14-5243 Document #1567644 Filed: 08/13/2015 Page 1 of 1
United States Court of Appeals
No. 14-5243
Perry Capital LLC, for and on behalf of investment funds for which it acts as investment manager,
Appellant v.
Jacob J. Lew, in his official capacity as the Secretary of the Department of the Treasury, et al.,
Appellees
------------------------------
Consolidated with 14-5254, 14-5260, 14-5262
September Term, 2014
1:13-mc-01288-RCL 1:13-cv-01025-RCL 1:13-cv-01053-RCL 1:13-cv-01439-RCL
Filed On: August 13, 2015 [1567644]
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
O RDE R
?Upon consideration of the motion of the National Black Chamber of Commerce for leave to participate as amicus curiae, the motion to substitute counsel for amici curiae Louise Rafter, et al., and appellees’ unopposed motion for extension of time to file response to the motion for judicial notice, it is
ORDERED that the motions be granted. Appellees’ response to the motion for judicial notice is now due August 20, 2015.
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Mark A. Butler
Deputy Clerk
from DC Circuit (appeals)
08/13/2015 Open Document CLERK'S ORDER filed [1567644] granting motion to substitute attorney [1565522-2] for amici curiae; granting motion of National Black Chamber of Commerce to participate as amicus curiae [1561117-2]; granting motion to extend time [1566954-2]; directing response to motion for judicial notice [1565601-2]. Response due on 08/20/2015 [14-5243, 14-5254, 14-5260, 14-5262]
It was in this filing, CJS.
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
FAIRHOLME FUNDS, INC., et al., ) ) Plaintiffs, )
v.
) No. 13-465C
) (Judge Sweeney) )
THE UNITED STATES, ) ) Defendant. )
PLAINTIFFS’ UNOPPOSED, SECOND MOTION FOR AN ENLARGEMENT OF TIME TO FILE A RESPONSE TO THE GOVERNMENT’S SUPPLEMENTAL MOTION TO DISMISS
Pursuant to RCFC 6.1(a), Plaintiffs respectfully move for an enlargement of time of 30 days to file a response to the Government’s supplemental motion to dismiss, Doc. 161. On June 17, Plaintiffs moved to stay briefing (Doc. 164) on the Government’s supplemental motion, and briefing on Plaintiffs’ stay motion is now complete, see Docs. 182 and 210.
Without an enlargement of time, Plaintiffs’ response to the Government’s supplemental motion would be due on Monday, August 10. This is Plaintiffs’ second request for an enlargement of time to respond to the Government’s supplemental motion, and the same good cause that supported Plaintiffs’ first 30-day request (which this Court granted on July 8, see Doc. 191) supports their present motion. This Court is currently considering Plaintiffs’ motion to stay briefing on the Government’s supplemental motion, and the stay motion would be rendered moot if Plaintiffs had to file a response to the Government’s supplemental motion before this Court has an opportunity to rule on the stay motion. To preserve the status quo and provide the Court additional time to consider Plaintiffs’ stay motion, Plaintiffs respectfully request that this Court enter an order enlarging the amount of time Plaintiffs have to file their response to the
1Case 1:13-cv-00465-MMS Document 219 Filed 08/06/15 Page 2 of 3
Government’s supplemental motion by 30 days, such that Plaintiffs’ response would be due on September 9, 2015.
The parties have been consulting on possible dates for a status conference, and Plaintiffs are hopeful that a date in late August will be convenient for both parties. See Doc. 208. A status conference held before September 9th would give the parties and the Court an opportunity to address Plaintiffs’ stay motion (assuming the stay motion is still pending at that time) before the new deadline proposed by this motion for enlargement.
In accordance with RCFC 6.1(b), Plaintiffs have consulted with opposing counsel, and the Government does not oppose this motion.
Date: August 6, 2015
Of counsel:
Vincent J. Colatriano
David H. Thompson
Peter A. Patterson
Brian W. Barnes
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W. Washington, D.C. 20036
(202) 220-9600
(202) 220-9601 (fax)
Respectfully submitted,
s/ Charles J. Cooper
Charles J. Cooper
Counsel of Record
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W. Washington, D.C. 20036
(202) 220-9600
(202) 220-9601 (fax) ccooper@cooperkirk.com
It was with their latest extension for plaintiffs responding to gov's motion to dismiss. They included the September dates and said they expected a status conference end of August.
One of the latest filings mentions expecting a status conference late August.
It must be pretty important to have been granted leave to file in 3 courts. As far as the other docs in Fed claims, I hope Sweeney grants their request for removal of protected status from those certain docs while everyone is still on vacation. :)
Case 1:13-cv-00465-MMS Document 227 Filed 08/12/15 Page 1 of 4
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
FAIRHOLME FUNDS, INC., et al., ) )
Plaintiffs,
) No. 13-465C
) (Judge Sweeney) v. )
) THE UNITED STATES, ) ) Defendant. )
DEFENDANT’S OPPOSITION TO PERRY CAPITAL’S NOTICE OF FILING OF APPLICATIONS OF CERTAIN COUNSEL REPRESENTING PERRY CAPITAL, LLC, FOR ACCESS TO PROTECTED INFORMATION, OR, IN THE ALTERNATIVE, MOTION TO AMEND THE PROTECTIVE ORDER
Defendant, the United States, respectfully submits this opposition to Perry Capital LLC’s notice of filing of applications of certain counsel representing Perry Capital LLC, appellant in Perry Capital LLC v. Lew, No. 14-5243(L) (D.C. Cir.), for access to protected information, or, in the alternative, motion to amend the Amended Protective Order (Notice of Filing). Perry Capital’s request is premature, and the Court should deny it.
Perry Capital is one of the appellants in Perry Capital LLC et al. v. Lew et al., Nos. 14- 5243, 14-5254, 14-5260, 14-5262 (D.C. Cir.) (the D.C. Circuit appeals). These D.C. Circuit appeals challenge a September 2014 decision of the United States District Court for the District of Columbia in Perry Capital LLC et al. v. Lew et al., Nos. 13-1025, 13-1053, 13-1439, 13-1288 (D.D.C.) (Perry Capital). In Perry Capital, Judge Lamberth granted FHFA’s and the Treasury Department’s motions to dismiss several complaints, filed by shareholders in Fannie Mae and Freddie Mac, challenging the Third Amendment to the agreements between Treasury and the Federal Housing Finance agency.
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Case 1:13-cv-00465-MMS Document 227 Filed 08/12/15 Page 2 of 4
Plaintiffs in this action are also appellants in the D.C. Circuit appeals.1 On July 29, 2015, plaintiffs filed, in the D.C. Circuit, a motion under seal asking that court to take judicial notice of certain discovery documents generated in this action, and to supplement the administrative record with those documents. Briefing on the motion is underway.
Perry Capital’s request for immediate access to protected information generated in discovery before this Court is premature in the absence of a decision by the D.C. Circuit granting Fairholme’s motion for judicial notice. Perry Capital is not a party to any of the complaints in this Court challenging the Third Amendment. Nonetheless, Perry Capital has asked the Court to provide its counsel immediate access to protected materials in the litigation before this Court, or to modify the Amended Protective Order entered on July 29, 2015 to facilitate such access.
Unless and until the D.C. Circuit grants the motion for judicial notice, Perry Capital should not be granted access to materials to which it otherwise has neither need nor entitlement. Such access would defeat the purpose of the Amended Protective Order to safeguard confidential, proprietary and market-sensitive materials from entities that are not parties the Court of Federal Claims complaints. Indeed, at this point, absent an order by the D.C. Circuit granting Fairholme’s motion, Perry Capital has no legitimate need for access to the materials that are the subject of the motion.
Perry Capital attempts to obscure the prematurity of its request by first claiming that denial of access “to filings in their own litigation” will be “unfair and raise due process concerns.” Notice of Filing at 3. But Fairholme has simply sought leave to file, in the D.C. Circuit, protected documents produced in litigation before this Court. Those documents are not currently part of the record in Perry Capital’s appeal. Deferring Perry Capital’s request for
1 One plaintiff named in Fairholme’s complaint in this Court, Continental Western Insurance Company, is not a party to Fairholme’s D.D.C. complaint.
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Case 1:13-cv-00465-MMS Document 227 Filed 08/12/15 Page 3 of 4
counsel’s access to the documents until the D.C. Circuit decides Fairholme’s motion for judicial notice will not harm Perry Capital. Should the D.C. Circuit deny the motion for judicial notice, the documents will never be “filings” in Perry Capital’s “own litigation.” Indeed, the cases Perry Capital cites discuss whether a court may consider the merits of a case without providing access to all materials considered to all parties. Here, the D.C. Circuit has yet to decide whether it will even consider the materials that are the subject of Fairholme’s motion. Thus, Perry Capital’s fairness and due process concerns are unfounded.
Similarly, Perry Capital’s counsel should not be permitted access to protected materials to which it is not otherwise entitled for the sole purpose of weighing in on Fairholme’s motion for judicial notice. Perry Capital has provided no basis upon which to conclude that Fairholme, a co-appellant in the D.C. Circuit, is incapable of defending its own motion, and the protected nature of the documents at issue should not be compromised simply to facilitate Perry Capital’s support of Fairholme’s arguments.
Perry Capital also claims that an amendment to the Amended Protective Order already in place in this case is unnecessary because virtually anyone may be viewed as “persons” for purposes of the application process detailed in Paragraph 7 of the order. But the application process in Paragraph 7 is limited to the categories of persons otherwise entitled to receive Protective Information under the order's Paragraph 4, as the language and structure of the order makes clear. Any other reading would negate the order’s carefully crafted provisions specifying categories of persons who may access Protected Information, and would therefore be absurd.
Finally, Perry Capital has not restricted its request for access solely to those documents that are the subject of Fairholme’s motion for judicial notice. Instead, Perry Capital seeks unfettered access to all protected information produced in the case before this Court. Because
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Case 1:13-cv-00465-MMS Document 227 Filed 08/12/15 Page 4 of 4
the D.C. Circuit has not decided whether it will consider any materials from this case, much less all materials designated as protected information, Perry Capital’s request should be denied.
For these reasons, the Government respectfully requests that the Court deny Perry Capital’s motion, or, in the alternative, stay its consideration of the motion until the D.C. Circuit has ruled on Fairholme’s motion for judicial notice.
??August 12, 2015
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
s/Robert E. Kirschman, Jr. ROBERT E. KIRSCHMAN, JR. Director
s/Kenneth M. Dintzer KENNETH M. DINTZER Deputy Director
Commercial Litigation Branch Civil Division
U.S. Department of Justice
P.O. Box 480
Ben Franklin Station
Washington, D.C. 20044
Telephone: (202) 616-0385
Facsimile: (202) 307-0973
Email: Kenneth.Dintzer@usdoj.gov
Attorneys for Defendant