Apparently the SEC is seeking to have the summary judgement verdicts imposed now, instead of waiting for the appeals process to finish. The SEC does have the right to demand implementation while waiting for the appeal. The following is the text from USXP/RA/Gunderson filing requesting that the judgements not be enforced until the whole process is finished.
This info was stolen from the RB board.
MOTION TO STAY PROCEEDINGS PENDING APPEAL - Filed Today
************************************
DEFENDANTS, UNIVERSAL EXPRESS, INC., MESSRS. RICHARD A.
ALTOMARE, AND CHRIS G. GUNDERSON'S, MOTION TO STAY
PROCEEDINGS PENDING APPEAL
Universal Express, Inc. ("USXP"), Richard A. Altomare,
its CEO and director, and personally, Chris G. Gunderson,
its general counsel and personally, pursuant to Rule 62,
Federal Rules of Civil Procedure, and the decisional
authorities applicable to the issues at bar more fully
cited below, collectively move this Court for the entry of
its order of stay pending appeal of the final judgment
entered against them on April 2, 2007 [D.E. #179]. In
support of this motion the movants state and aver:
1. This Court granted Plaintiff, Securities and
Exchange Commission ("Commission") motion for summary final
judgment with respect to alleged violations of the
Securities Act of 1933 ("Securities Act") §§5 and 17(a),
and an alleged violation of the Securities and Exchange Act
of 1934 ("Exchange Act") §10(b)(5). Final judgment was
entered on the Clerk's docket April 2, 2007. See D.E.
#179.
2. On June 1, 2007, the movants filed their notice
of appeal to the United States Court of Appeals for the
Second Circuit. See D.E. #185. The appeal is progressing,
with the appellant's therein having filed with that Court
the necessary preliminary papers required by Local Rules of
the United States Court of Appeals for the Second Circuit.
3. During the last status conference between and
among the Court and all of the parties-litigant, the
attorneys for the Commission announced its intention to
proceed to a trial on the merits of all remaining claims
against these movants ("USXP defendants") and all remaining
defendants. Evidenced expected to be adduced during the
trial of the remaining claims may well impact on some of
the findings of the Court which were based upon deposition
testimony referred to by the Commission in its summary
judgment moving and supporting papers.
4. In addition, there remains to be decided by the
Court the USXP defendants' request for trial by jury, the
brief filed in support of that request and the motion for
leave to amend the answer and affirmative defenses
heretofore filed by the USXP defendants as a result of the
litigation position advanced by the Commission in its
opposition to the request for trial by jury. Again,
evidence is expected to be adduced at trial may well impact
upon several of the findings of fact made by the Court
based upon the Commission's referral to certain deposition
testimonies.
5. Moreover, and with all due respect to the Court,
in the event the Court of Appeals renders a decision
reversing any of the relief favorably granted by this
Honorable Court in its opinion and order and final summary
judgment, a trial will be necessary on any such claim the
Commission continues prosecuting.
6. The fact that there remains claims that must be
resolved by trial and in the case of the USXP defendants
potential trial by jury, and given the non-final nature for
purposes of due process at least, of this Court's April 2,
2007 summary final judgment, fairness should prompt the
granting of a stay. A stay also should be entered as a
result of the Commission's inability to articulate in good
faith any prejudice that may result to it.
Discussion
A stay of proceedings to enforce a judgment in a
multi-claim or multi-party case is governed by Rules 62(d)
and (h), Federal Rules of Civil Procedure. Except for the
automatic stay postponements specifically authorized by
Rule 62(d) and (h), supra, the posting of a supersedeas
bond, if any, as may be required by the district court in
its discretion will effectively stay proceedings pending
appeal. The rules specifically provide thusly:
(d) Stay Upon Appeal. When an appeal is
taken the appellant by giving a supersedeas
bond may obtain a stay subject to the
exceptions contained in subdivision (a) of
this rule. The bond may be given at or
after the time of filing the notice of
appeal or of procuring the order allowing
the appeal, as the case may be. The stay
is effective when the supersedeas bond is
approved by the court.
At the same time, Rule 62(h), supra, provides:
(h) Stay of Judgment as to Multiple Claims
or Multiple Parties. When a court has
ordered a final judgment under the conditions
stated in Rule 54(b), the court may
stay enforcement of that judgment until
the entering of subsequent judgment or
judgments and may prescribe such
conditions as are necessary to secure
the benefit thereof to the party in
whose favor the judgment is entered.
The USXP defendants concede that the act of appealing
the summary final judgment entered April 2,, 2007 does not
automatically create a stay of that judgment pending
appeal. They also concede that Rule 62(d) governs the only
circumstances in which a party may obtain a say of
enforcement of a money judgment pending appeal beyond the
automatic 10-day period provided for by Rule 62(a), except
as is provided for in Rule 62(h). Rule 62(d), however,
does mandate a stay upon the posting of an acceptable
supersedeas. Rule 62(h) allows the district court to
decide the question of supersedeas bond balancing the
equities of the parties and considering the administration
of the case. The district court, therefore, possesses
discretionary authority relative to (i) the amount of the
supersedeas or (ii) whether any supersedeas shall be
imposed as a condition for stay, and (iii) pursuant to Rule
62(h) the entry of a stay where there are multiple claims
or multiple parties and (summary) final judgment is entered
as to one or more of the claims but not all or as to one or
more of the parties but not all. See, e.g., North Penn
Transfer, Inc. v. Maple Press Co., 176 B.R. 372, 375-77
(M.D. Pa. 1995) [judgment for plaintiff on unpaid shipping
charges ordered stayed under Rule 62(h) so that defendant
can challenge reasonableness of shipping rates before
regulatory agency and citing the possibility that immediate
enforcement of the judgment would make defendant
insolvent]. See also, ITV Direct, Inc. v. Healthy
Solutions, L.L.C., 445 F.3rd 66 (1st Cir. 2006).
In the Second Circuit the standards for issuing a stay
pending appeal of a district court decision or final
judgment requires the district court to address the
following:
(i) whether the stay applicant has made a strong
showing that he is likely to succeed on the
merits;
(ii) whether the applicant will be irreparably
injured absent a stay;
(iii)whether the issuance of a stay will
substantially injure other parties
interested in the proceedings; and
(iv) where the public interest lies.
United States v. International Brotherhood of Teamsters,
etc., 728 F.Supp. 924 (S.D.N.Y. 1989), citing Hilton v.
Braunskill, 481 U.S. 770, 776, 107 S.Ct. 2113, 2119, 95
L.Ed.2d 724 (1987); De la Fuente v. DCI Telecommunications,
Inc., et al, 269 F.Supp.2d 237, 240 (S.D.N.Y. 2003).
The USXP defendants respectfully but forcefully urge
this Court to agree with its showing that their arguments
made in opposition to the Commission's motion for summary
judgment relating to the bankruptcy code statutorily imbued
immunity, the absence of a finding of the statutory good
faith compliance defense with both the provisions of the
bankruptcy code and the plan for reorganization expressly
and specifically approved by the United States Bankruptcy
Court for the Eastern District of New York, at a minimum,
constitute very substantial questions posing issues of
first impression to both this Court and the court of
appeals. In addition, the USXP defendants, will be
irreparably injured in the event its sole director and
chief executive officer since it emerged from the
bankruptcy proceedings 13 years ago, which director and
officer also acted as the managing agent under the auspices
of the bankruptcy proceedings for several years prior to
the bankruptcy court's approval of the plan of
reorganization, will be removed from the day to day
operations of the corporation. His removal also will
threaten the livelihood of approximately 60 employees and
thousands of shareholders. At the same time, there cannot
be any argument advanced in good faith by the Commission
that the issuance of a stay will substantially harm either
the Commission or the other parties interested in these
proceedings. Finally, the petitioners/movants equally urge
this Court to conclude that the continuation of USXP's sole
director and chief executive officer will best promote the
public interest given the substantial strain that will be
imposed on the corporation in the event he can no longer
act in its best interests during the pendency of the
appeal. Since the Second Circuit also requires that the
foregoing requirements be applied flexibly according to the
circumstances of each case Morgan Guaranty Trust Co. v.
Republic of Palau, 702 F.Supp. 60, 65 (S.D.N.Y. 1988),
vacated on other grounds, 924 F.2d 1237 (2d Cir. 1991),
this Court should impose either a de minimus bond, or,
preferably, no bond whatsoever as a condition of the stay.
Said otherwise, imposing a de minimus bond or altogether
eliminating the requirement of a bond will not unduly
endanger the Commission's interest and ultimate recovery.
In compliance with this Court's Local Rules, the
undersigned certifies that his office has communicated with
counsel for the Plaintiff/SEC, Leslie J. Hughes, Esq., on
June 20, 2007, who has indicated that the SEC does not
agree to the motion to stay and should the motion to stay
be granted does not agree to a de minimus bond.
Conclusion
Based upon the highly controverted facts throughout
these proceedings, the principal factors which must be
addressed by this Court in deciding the question of a stay
all bearing in favor of the USXP defendants, and the
absence of any harm that can be articulated by the
Commission as the prevailing party in the district court,
the stay herein requested should be entered first without
any bond whatsoever or, in the alternative, one that is de
minimus in amount.
Respectfully submitted,
TIFFORD AND TIFFORD, P.A.
ARTHUR W. TIFFORD, ESQ.
Lead Counsel for Defendants
Universal Express, Inc.
Richard A. Altomare and
Chris G. Gunderson
1385 NW 15 Street
Miami FL 33125
Telephone: (305) 545-7822
Telefax: (305) 325-1825
BY /s/
ARTHUR W. TIFFORD
(NY ID-011481)
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the
above and foregoing was electronically filed this 20th day
of June 2007 to:
John A. Hutchings, Esq. John B. Harris, Esq.
Dill Dill Carr Stonebraker Lara Shaov, Esq.
& Hutchings, PC Stillman Freidman & Schechtman PC
455 Sherman Street, Suite 300 425 Park Avenue
Denver CO 80203 New York NY 10022
jhutchings@... Ishalov@...
jharris@...
Leslie Hughes, Esq.
Julie Lutz, Esq. Marvin Pickholz, Esq.
SEC Central Regional Office Jason Pickholtz, Esq.
1801 California Street, Suite 4800 Akerman Senterfitt LLP
Denver CO 80202-2648 335 Madison Avenue Suite 2600
New York NY 10017
Jason.pickholz@...
Harry H. Wise, III, Esq.
Attorney for Defendant
770 Lexington Ave. 6th FL
New York, NY 10021
hwiselaw@...
___________/s/____________
Arthur W. Tifford, Esq.
