Lieff Cabraser Heimann & Berns v. Labaton Sucharow LLP, et al
| ANDOVER COMPANIES EMPLOYEE SAVINGS AND PROFIT SHARING PLAN, WILLIAM R. TAYLOR, ARKANSAS TEACHER RETIREMENT SYSTEM, on Behalf of Itself and All Others Similarly Situated, ARNOLD HENRIQUEZ, on behalf of the Waste Mangement Retirement Savings Plan and all other smilarly situated plans, JAMES PEHOUSHEK-STANGELAND, MICHAEL T. COHN and RICHARD A. SUTHERLAND |
| STATE STREET GLOBAL MARKETS, LLC, STATE STREET CORPORATION and STATE STREET BANK AND TRUST COMPANY |
| WILMER, CUTLER & PICKERING, LLP, GERALD E. ROSEN, MCTIGUE LAW, LLP, THORNTON LAW FIRM LLP, ZUCKERMAN SPAEDER LLP, KELLER ROHRBACK LLP, LIEFF CABRASER HEIMANN & BERNSTEIN, LLP, LABATON SUCHAROW LLP, BARRETT & SINGAL, PC, HAMILTON LINCOLN LAW INSTITUTE and COMPETITIVE ENTERPRISE INSTITUTE |
| 21-1069 |
| February 1, 2021 |
| U.S. Court of Appeals, First Circuit |
| Other Fraud |
Opinions
We have the following opinions for this case:
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 Lieff Cabraser Heimann & Berns v. Labaton Sucharow LLP
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Docket Report
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MANDATE issued. [21-1069] (ALW) [Entered: 03/02/2022 08:45 AM]
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JUDGMENT entered: This cause came on to be heard on appeal from the United States District Court for the District of Massachusetts and was argued by counsel. Upon consideration whereof, it is now here ordered, adjudged and decreed as follows: The district court's Rule 11(b) sanction of Lieff Cabraser Heimann & Bernstein, LLP is affirmed, and Lieff Cabraser Heimann & Bernstein, LLP's challenges to the district court's criticisms of its actions are dismissed as unappealable. No costs are awarded. [21-1069] (ALW) [Entered: 02/09/2022 04:16 PM]
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OPINION issued by Rogeriee Thompson, Appellate Judge; William J. Kayatta, Jr., Appellate Judge and David J. Barron, Appellate Judge. Published. [21-1069] (ALW) [Entered: 02/09/2022 04:10 PM]
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CASE argued. Panel: Rogeriee Thompson, Appellate Judge; William J. Kayatta, Jr., Appellate Judge and David J. Barron, Appellate Judge. Arguing attorneys: Samuel Issacharoff for Lieff Cabraser Heimann & Bernstein, LLP and Theodore H. Frank for Competitive Enterprise Institute and Hamilton Lincoln Law Institute. [21-1069]--[Edited 11/02/2021 by DJT] (DJT) [Entered: 11/02/2021 02:15 PM]
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DESIGNATION of attorney presenting oral argument filed by Attorney Theodore H. Frank for Not Party Competitive Enterprise Institute and Amicus Curiae Hamilton Lincoln Law Institute. Certificate of service dated 09/30/2021. [21-1069] (THF) [Entered: 09/30/2021 03:27 PM]
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ORDER entered by Rogeriee Thompson, Appellate Judge: The motion filed by Amicus Curiae Hamilton Lincoln Law Institute's to participate in oral argument is granted. Amicus is permitted to present for the same amount of time allotted to appellant. [21-1069] (ALW) [Entered: 09/28/2021 05:17 PM]
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MOTION for leave to appear at oral argument filed by Amicus Curiae Hamilton Lincoln Law Institute. Certificate of service dated 09/27/2021. [21-1069] (THF) [Entered: 09/27/2021 11:34 PM]
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DESIGNATION of attorney presenting oral argument filed by Attorney Samuel Issacharoff for Appellant Lieff Cabraser Heimann & Bernstein, LLP. Certificate of service dated 09/14/2021. [21-1069] (SI) [Entered: 09/14/2021 02:48 PM]
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CASE calendared: Consistent with ongoing efforts to mitigate the risk of community transmission of COVID-19, the court will conduct oral argument remotely in this case on Tuesday, November 2, 2021 at 9:30 a.m., in lieu of in-person appearance. Check-in at 9:00 a.m. before court begins is required. There will be no continuance except for grave cause. Designation form due 09/20/2021. [21-1069] (DO) [Entered: 09/13/2021 03:02 PM]
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NINE (9) paper copies of supplemental brief [ # 6442906-2 ] submitted by Appellant Lieff Cabraser Heimann & Bernstein, LLP. [21-1069] (AJ) [Entered: 08/31/2021 01:39 PM]
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BRIEF filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP in response to amicus brief [ # 6440161-2 ]. Certificate of service dated 08/27/2021. Nine paper copies identical to that of the electronically filed brief must be submitted so that they are received by the court on or before 09/03/2021 . [21-1069] (DK) [Entered: 08/27/2021 05:35 PM]
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BRIEF tendered by Appellant Lieff Cabraser Heimann & Bernstein, LLP in response to amicus brief [ # 6440161-2 ]. Certificate of service dated 08/27/2021. [21-1069] CLERK'S NOTE: Docket entry was modified to edit the docket description. (SI) [Entered: 08/27/2021 02:50 PM]
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NINE (9) paper copies of amicus brief [ # 6440161-2 ] submitted by Amicus Curiae Hamilton Lincoln Law Institute. [21-1069] (AJ) [Entered: 08/18/2021 09:21 AM]
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AMICUS CURIAE BRIEF filed by Amicus Curiae Hamilton Lincoln Law Institute in support of Absent Appellee in Favor of Affirmance. Certificate of service dated 06/28/2021. Nine paper copies identical to that of the electronically filed brief must be submitted so that they are received by the court on or before 08/20/2021 . [21-1069] (ALW) [Entered: 08/13/2021 03:39 PM]
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ORDER entered by William J. Kayatta, Jr., Appellate Judge: The motion of Hamilton Lincoln Law Institute for an order appointing it amicus curiae to defend the district court's judgment on appeal or in the alternative for leave to file an amicus brief in support of affirmance of district court's order is resolved as follows: HLLI's request to file an amicus brief in support of affirmance of the district court's order is granted. Should argument be scheduled, HLLI may file a motion for leave to appear at that time. Appellant may file a response to the brief within fourteen days of the date hereof. [21-1069] (ALW) [Entered: 08/13/2021 03:33 PM]
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DISCLOSURE statement filed by Not Party Hamilton Lincoln Law Institute. Certificate of service dated 06/28/2021. [21-1069] (ALW) [Entered: 07/16/2021 12:30 PM]
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HAMILTON LINCOLN LAW INSTITUTES REPLY to response [ # 6432825-2 ] in support of motion for an order appointing it amicus curiae to defend the District Courts judgment on appeal; and in the alternative for leave to file an amicus brief in support of affirmance of the District Courts order filed by Not Party Hamilton Lincoln Law Institute. Certificate of service dated 07/15/2021. [21-1069] CLERK'S NOTE: Docket entry was edited to modify the docket text. (THF) [Entered: 07/15/2021 07:27 PM]
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ORDER entered: Upon consideration of motion and notice of joinder, the June 28, 2021 order of the court is hereby vacated. Zuckerman Spaeder LLP and McTigue Law LLP's notice that they do not intend to file a brief in this appeal is hereby noted. [21-1069] (ALW) [Entered: 07/13/2021 02:32 PM]
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NOTICE of joinder to Appellee Zuckerman Spaeder LLP's motion [ # 6430921-3 ] filed by Appellee McTigue Law, LLP. Certificate of service dated 07/13/2021. [21-1069] CLERK'S NOTE: Docket entry was edited to modify the docket text. (RMM) [Entered: 07/13/2021 09:31 AM]
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NOTICE of appearance on behalf of Appellee McTigue Law, LLP filed by Attorney Regina M. Markey. Certificate of service dated 07/12/2021. [21-1069] (RMM) [Entered: 07/12/2021 04:08 PM]
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COURTESY COPY of response filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP to motion for leave to file amicus curiae brief [ # 6430963-2 ]. Number of copies: 5. Certificate of service dated 07/08/2021. [21-1069] (ALW) [Entered: 07/09/2021 11:34 PM]
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INTERESTED PARTY-APPELLANTS RESPONSE in opposition to the motion [ # 6430963-2 ] filed by Hamilton Lincoln Law Institute to file an amicus brief filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP. Certificate of service dated 07/08/2021. [21-1069] CLERK'S NOTE: Docket entry was edited to modify the docket text. (SI) [Entered: 07/08/2021 02:03 PM]
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NOTICE allowing request for removal from service list. The following attorney has been removed from the service list for this case: David J. Goldsmith for Arkansas Teacher Retirement System. [21-1069] (ALW) [Entered: 07/01/2021 08:56 AM]
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REQUEST for removal from the service list filed by Attorney David J. Goldsmith for Not Party Arkansas Teacher Retirement System. Certificate of service was not included. [21-1069] (ALW) [Entered: 07/01/2021 08:51 AM]
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ORDER entered by William J. Kayatta, Jr., Appellate Judge: The district court has renewed its request that this court invite it to retain counsel in this appeal for purposes of representing it as quasi-fiduciary for the plaintiff class. The request is denied, no authority for granting the relief having been cited. Indeed, the Guide to Judiciary Policy suggests that granting such relief may be problematic. See Guide to Judiciary Policy, Vol. 20, 345.20 ("[t]he defense of judicial acts and rulings are the responsibility of the parties.") . Although we are assured by the distr ict court that the Administrative Office of the United States Courts does not view the question of the district court's representation in this court as troublesome, we are not sanguine. Cf. id. ("[j]udicial appropriations will not be expended for private legal representation where the lawsuit in question is not a personal action but instead constitutes a collateral attack upon a judicial act or court judgment."). While mandamus petitions may be an exception where the appellate court has invited or ordered the trial-court judge to address the petition "and the judge finds, with the approval of the Director [of the Administrative Office], that an answer is necessary to apprise the court of appeals regarding the legal considerations surrounding the judicial order or action at issue[,]" id. , 325(a), this is not such a case. Furthermore, we have the benefit of the district court's various and extensive writings, including the court's June 29, 2020 memorandum and order drafted after appellant's original brief was filed in Lieff Cabraser Heimann & Bernstein, LLP v. Labaton Sucharow LLP , No. 20-1365, and the memorandum dated June 1, 2021 drafted after appellant's most recent brief in this case. Furthermore, should the merits panel find that justice requires, the panel always has the authority to solicit or appoint amicus counsel, just as the Supreme Court sometimes does. See Collins v. Yellen , 594 U.S. ___, 2021 WL 2557067 (June 23, 2021). [21-1069] (ALW) [Entered: 06/30/2021 11:06 AM]
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MOTION for leave to file amicus curiae brief in support of Appellee filed by Movant(s) Hamilton Lincoln Law Institute. Certificate of service dated 06/28/2021. [21-1069] (THF) [Entered: 06/28/2021 11:26 PM]
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MOTION for Relief From Order of Court Filed June 28, 2021 (Document: 00117757247) filed by Appellees Zuckerman Spaeder LLP. Certificate of service dated 06/28/2021. [21-1069] CLERK'S NOTE: The ECF filer did not select the option that best describes the document and Docket entry was edited to modify the party selection. Correction made by clerk's office. No further action required. (CSK) [Entered: 06/28/2021 04:30 PM]
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ORDER entered. As Appellees McTigue Law, LLP and Zuckerman Spaeder LLP have failed to file a brief, appellees will not be heard at oral argument except by permission of the court. [21-1069]. CLERK'S NOTE: Docket entry was edited to modify the docket text. (ALW) [Entered: 06/27/2021 09:55 PM]
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NOTICE Concerning Briefing filed by Appellee Keller Rohrback LLP. Certificate of service dated 06/23/2021. [21-1069] (LLS) [Entered: 06/23/2021 07:22 PM]
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NOTICE CONCERNING BRIEFING filed by Appellee Thornton Law Firm LLP. Certificate of service dated 06/23/2021. [21-1069] (JCS) [Entered: 06/23/2021 06:34 PM]
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REQUEST for removal from the service list filed by Attorney Gary S. Peeples for Not Party Competitive Enterprise Institute. Certificate of service was not included. [21-1069] (ALW) [Entered: 06/22/2021 03:33 PM]
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NOTICE allowing request for removal from service list. The following attorneys have been removed from the service list for this case: Gary S. Peeples for Competitive Enterprise Institute. [21-1069] (ALW) [Entered: 06/22/2021 03:35 PM]
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NOTICE that a brief will not be filed by Appellee Labaton Sucharow LLP. Certificate of service dated 06/18/2021. [21-1069] (JAL) [Entered: 06/18/2021 07:15 PM]
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DISTRICT COURT'S RENEWED REQUEST that First Circuit invite it to retain counsel with an attached exhibit filed by District Court Judge Mark L. Wolf. Certificate of service was not included. [21-1069] (ALW) [Entered: 06/03/2021 11:12 AM]
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SUPPLEMENTAL record filed. Docket entries: 688 (Memorandum and Order). [21-1069] (ALW) [Entered: 06/01/2021 04:18 PM]
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FIVE (5) paper copies of appendix [ # 6423255-2 ] (Volumes:3) submitted by Appellant Lieff Cabraser Heimann & Bernstein, LLP. [21-1069] (AJ) [Entered: 05/24/2021 03:11 PM]
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NINE (9) paper copies of appellant/petitioner brief [ # 6423248-2 ] submitted by Appellant Lieff Cabraser Heimann & Bernstein, LLP. [21-1069] (AJ) [Entered: 05/24/2021 02:45 PM]
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APPENDIX filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP. Certificate of service dated 05/20/2021. Five paper copies of the electronically filed appendix must be submitted so that they are received by the court on or before 05/27/2021 [21-1069] (LIM) [Entered: 05/20/2021 11:36 AM]
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DISCLOSURE statement filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP. Certificate of service dated 05/20/2021. [21-1069] (LIM) [Entered: 05/20/2021 11:29 AM]
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APPELLANT'S BRIEF filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP. Certificate of service dated 05/20/2021. Nine paper copies identical to that of the electronically filed brief must be submitted so that they are received by the court on or before 05/27/2021 . Brief due 06/21/2021 for APPELLEES Keller Rohrback LLP, Labaton Sucharow LLP, McTigue Law, LLP, Thornton Law Firm LLP and Zuckerman Spaeder LLP. [21-1069] (LIM) [Entered: 05/20/2021 11:27 AM]
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APPENDIX tendered by Appellant Lieff Cabraser Heimann & Bernstein, LLP. Certificate of service dated 05/20/2021. [21-1069] (SI) [Entered: 05/20/2021 09:43 AM]
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BRIEF tendered by Appellant Lieff Cabraser Heimann & Bernstein, LLP. [21-1069] (SI) [Entered: 05/20/2021 09:40 AM]
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ORDER directing Appellant Lieff Cabraser Heimann & Bernstein, LLP to file a conforming brief and appendix. Brief and Appendix due 05/25/2021. [21-1069] (ALW) [Entered: 05/18/2021 06:43 PM]
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APPENDIX tendered by Appellant Lieff Cabraser Heimann & Bernstein, LLP. Certificate of service dated 05/14/2021. [21-1069] (SI) [Entered: 05/14/2021 10:32 AM]
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BRIEF tendered by Appellant Lieff Cabraser Heimann & Bernstein, LLP. [21-1069] (SI) [Entered: 05/14/2021 10:28 AM]
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ORDER entered by William J. Kayatta, Jr., Appellate Judge: The district court judge has requested that this court "invite it to retain counsel to appear on behalf of the court as fiduciary for the class" in this appeal. This court has the benefit of the district court's opinions, including its decision denying Lieff Cabraser Heimann & Bernstein's motion to stay the decision that is presently on appeal. The district court's request is denied without prejudice to reconsideration by the panel that decides the merits. [21-1069] (ALW) [Entered: 04/02/2021 08:43 PM]
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ORDER granting motion to extend time to file brief and appendix filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP. Brief and appendix due 05/14/2021 for appellant Lieff Cabraser Heimann & Bernstein, LLP. [21-1069] (DO) [Entered: 03/22/2021 01:32 PM]
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MOTION to extend time to file brief and appendix filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP. Certificate of service dated 03/22/2021. [21-1069] CLERK'S NOTE: Docket entry was edited to modify the docket text. (SI) [Entered: 03/22/2021 09:50 AM]
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SUPPLEMENTAL record filed. Docket entries: 679 (Order), 680 (Memorandum and Order), and 681(Memorandum and Order). [21-1069] (ALW) [Entered: 03/19/2021 09:44 AM]
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ORDER entered by William J. Kayatta, Jr., Appellate Judge: The motion of the Hamilton Lincoln Law Institute to Amend the Caption is denied with the caveat that HLLI may refile its motion should any party challenge on appeal the award of fees to HLLI. [21-1069] (ALW) [Entered: 03/12/2021 10:24 PM]
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BRIEFING schedule set. Brief and appendix due 04/14/2021 for appellant Lieff Cabraser Heimann & Bernstein, LLP. Pursuant to F.R.A.P. 31(a), appellee's brief will be due 30 days following service of appellant's brief, and appellant's reply brief will be due 21 days following service of appellee's brief. Please see the court's general order issued April 20, 2020, requiring the electronic filing of appendices. [21-1069] (MNH) [Entered: 03/05/2021 12:00 PM]
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NOTICE issued. The following attorneys have failed to register for an appellate ECF account and will no longer receive notice of court issued documents in this case: Joel H. Bernstein for Arkansas Teacher Retirement System, Dwight Bostwick for Arnold Henriquez, Michael T. Cohn, William R. Taylor and Richard A. Sutherland, Graeme Bush for Arnold Henriquez, Michael T. Cohn, William R. Taylor and Richard A. Sutherland, Kimberly Keevers Palmer for Arnold Henriquez, Gary S. Peeples for Competitive Enterprise Institute, Michael H. Rogers for Arkansas Teacher Retirement System, Paul J. Scarlato for Arkansas Teacher Retirement System, Lawrence A. Sucharow for Arkansas Teacher Retirement System, Michael P. Thornton for Arkansas Teacher Retirement System and Nicole M. Zeiss for Arkansas Teacher Retirement System. [21-1069] (ALW) [Entered: 03/05/2021 11:18 PM]
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NOTICE of appearance on behalf of Not Party Arkansas Teacher Retirement System filed by Attorney Michael P. Canty. Certificate of service dated 02/23/2021. [21-1069] (MPC) [Entered: 02/23/2021 11:27 AM]
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RESPONSE filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP to motion to amend caption [ # 6402954-2 ]. Certificate of service dated 02/22/2021. [21-1069] (SI) [Entered: 02/22/2021 09:53 AM]
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MOTION to amend caption filed by Not Party Hamilton Lincoln Law Institute. Certificate of service dated 02/19/2021. [21-1069] (THF) [Entered: 02/19/2021 10:47 PM]
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NOTICE of appearance on behalf of Appellee Zuckerman Spaeder LLP filed by Attorney Carl S. Kravitz. Certificate of service dated 02/17/2021. [21-1069] (CSK) [Entered: 02/17/2021 02:42 PM]
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NOTICE issued. After 03/03/2021, the following attorneys will no longer receive notice of court issued documents in this case unless they register for an appellate ECF account: Jonathan G. Axelrod for Arnold Henriquez, M. Frank Bednarz for Competitive Enterprise Institute and Hamilton Lincoln Law Institute, Joel H. Bernstein for Arkansas Teacher Retirement System, Dwight Bostwick for Arnold Henriquez, Michael T. Cohn, William R. Taylor and Richard A. Sutherland, Graeme Bush for Arnold Henriquez, Michael T. Cohn, William R. Taylor and Richard A. Sutherland, Kimberly Keevers Palmer for Arnold Henriquez, Gary S. Peeples for Competitive Enterprise Institute, Michael H. Rogers for Arkansas Teacher Retirement System, Paul J. Scarlato for Arkansas Teacher Retirement System, Lawrence A. Sucharow for Arkansas Teacher Retirement System, Michael P. Thornton for Arkansas Teacher Retirement System and Nicole M. Zeiss for Arkansas Teacher Retirement System. [21-1069] (ALW) [Entered: 02/17/2021 02:20 PM]
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NOTICE of appearance on behalf of Appellee Keller Rohrback LLP filed by Attorney Lynn L. Sarko. Certificate of service dated 02/17/2021. [21-1069] (LLS) [Entered: 02/17/2021 01:57 PM]
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NOTICE of appearance on behalf of Appellee Zuckerman Spaeder LLP filed by Attorney Michael R. Smith. Certificate of service dated 02/17/2021. [21-1069] (MRS) [Entered: 02/17/2021 01:06 PM]
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NOTICE of appearance on behalf of Appellee Labaton Sucharow LLP and NOTICE that Appellee does not intend to file an opposition brief filed by Attorney Justin Wolosz. Certificate of service dated 02/16/2021. [21-1069] CLERK'S NOTE: Docket entry was edited to modify the docket text. (JJW) [Entered: 02/16/2021 11:46 AM]
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NOTICE of appearance on behalf of Appellee Labaton Sucharow LLP and NOTICE that Appellee does not intend to file an opposition brief filed by Attorney Joan Lukey. Certificate of service dated 02/16/2021. [21-1069] CLERK'S NOTE: Docket entry was edited to modify the docket text. (JAL) [Entered: 02/16/2021 11:39 AM]
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NOTICE of appearance on behalf of Not Party Hamilton Lincoln Law Institute filed by Attorney Theodore H Frank. Certificate of service dated 02/12/2021. [21-1069] (THF) [Entered: 02/12/2021 03:25 AM]
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NOTICE of appearance on behalf of Appellee Thornton Law Firm LLP filed by Attorney Brian T. Kelly. Certificate of service dated 02/11/2021. [21-1069] (BTK) [Entered: 02/11/2021 12:50 PM]
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NOTICE of appearance on behalf of Appellee Thornton Law Firm LLP filed by Attorney Joshua C. Sharp. Certificate of service dated 02/11/2021. [21-1069] (JCS) [Entered: 02/11/2021 12:33 PM]
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NOTICE of appearance on behalf of Appellant Lieff Cabraser Heimann & Bernstein, LLP filed by Attorney Samuel Issacharoff. Certificate of service dated 02/04/2021. [21-1069] (SI) [Entered: 02/04/2021 09:33 AM]
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NOTICE of appearance on behalf of Appellant Lieff Cabraser Heimann & Bernstein, LLP filed by Attorney Steven E. Fineman. Certificate of service dated 02/04/2021. [21-1069] (SEF) [Entered: 02/04/2021 09:29 AM]
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NOTICE of appearance on behalf of Appellant Lieff Cabraser Heimann & Bernstein, LLP filed by Attorney Richard M. Heimann. Certificate of service dated 02/04/2021. [21-1069] (RMH) [Entered: 02/04/2021 09:26 AM]
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DOCKETING statement filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP. Certificate of service dated 02/04/2021. [21-1069] (RMH) [Entered: 02/04/2021 09:39 AM]
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TRANSCRIPT report/order form filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP indicating all necessary transcripts have already been filed in district court. Certificate of service dated 02/04/2021. [21-1069] (RMH) [Entered: 02/04/2021 09:45 AM]
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CIVIL CASE docketed. Notice of appeal (doc. #664) filed by Appellant Lieff Cabraser Heimann & Bernstein, LLP. Docketing Statement, Transcript Report/Order form, and Appearance form due 02/16/2021. [21-1069] (MNH) [Entered: 02/01/2021 05:42 PM]
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