In re Girardi, et al
| WALTER J. LACK, Esquire, In re: THOMAS VINCENT GIRARDI, Esquire, SEAN TOPP, Esquire, PAUL A. TRAINA, Esquire and GIRARDI & KEESE |
| ENGSTROM, LIPSCOMB & LACK |
| 08-80090 |
| June 5, 2008 |
| U.S. Court of Appeals, Ninth Circuit |
| Other |
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| Filing 63 Received letter dated from Non-party on 03/02/2012 re: case. [8101090] (Turcios, Margoth) [Entered: 03/13/2012 09:58 AM] |
Filing 62
Order Filed 1/21/2011 re: Lack to USDC @ Central CA [7620299] (DL) [Entered: 01/21/2011 09:37 AM]
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| Filing 61 Filed order (Appellate Commissioner) By order filed July 13, 2010, this court suspended respondent Paul A. Traina, Esq. from the practice of law in this court for six months. The court conditioned Respondents reinstatement upon a showing that he is in good standing, with no discipline pending, in all courts and bars to which he is admitted. In re Girardi, 611 F.3d 1027, 1039 (9th Cir. 2010). Respondent Trainas petition for reinstatement, filed January 14, 2011, advises that Respondent is in good standing with the State Bar of California, and that the bars disciplinary counsel is closing the investigation of Respondent without taking any further disciplinary action. The petition also provides evidence that Respondents concurrent and reciprocal suspension from the bar of the Central District of California will end upon his reinstatement to the bar of this court. Accordingly, Respondent's motion for reinstatement to the practice of law in this court is granted. The Clerk shall amend the courts records accordingly. (Appellate Commissioner) [7620290] (DL) [Entered: 01/21/2011 09:35 AM] |
| Filing 60 Filed order (Appellate Commissioner)By order filed July 13, 2010, this court suspended respondent Walter J. Lack, Esq. from the practice of law in this court for six months. The court conditioned Respondents reinstatement upon a showing that he is in good standing, with no discipline pending, in all courts and bars to which he is admitted. In re Girardi, 611 F.3d 1027, 1039 (9th Cir. 2010). Respondent Lacks petition for reinstatement, filed January 14, 2011, advises that Respondent is in good standing with the State Bar of California, and that the bars disciplinary counsel is closing the investigation of Respondent without taking any further disciplinary action. The petition also provides evidence that Respondents concurrent and reciprocal suspension from the bar of the Central District of California will end upon his reinstatement to the bar of this court. Accordingly, Respondent's motion for reinstatement to the practice of law in this court is granted. The Clerk shall amend the courts records accordingly. (Appellate Commissioner) [7620258] (DL) [Entered: 01/21/2011 09:27 AM] |
| Filing 59 Filed Respondent Walter J. Lack, Esquire motion for reinstatement before the Ninth Circuit. Served on 01/12/2011. [7615983] [08-80090, 03-57038] (Turcios, Margoth) [Entered: 01/18/2011 03:22 PM] |
| Filing 58 Filed Respondent Paul A. Traina, Esquire petition of Paul A. Traina for reinstatement before the 9th Circuit. Served on 01/12/2011. [7613728] (Turcios, Margoth) [Entered: 01/14/2011 02:48 PM] |
| Filing 57 FILED UNDER SEAL Respondent Sean A. Topp, Esquire submission regarding proposed order unsealing records dated 9/2/10 Served on 09/15/2010. [7482082]--[Edited 09/21/2010 by ASW: Sealed document, resent notice.] (Walker, Synitha) [Entered: 09/21/2010 02:48 PM] |
| Filing 56 Filed order in 03-57038 (Appellate Commissioner) In its July 13, 2010 order, the court adopted in full Judge Tashimas findings of fact, conclusions of law, and recommendations with respect to sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. 1912 and 1927, as they appear in the corrected version of the Special Masters Report and Recommendation that Judge Tashima filed on October 7, 2009. The court also referred the issue of sanctions to the Appellate Commissioner to conduct whatever proceedings he deems appropriate and consistent with Judge Tashimas report. Judge Tashimas Report and Recommendation recommended sanctions within specific monetary limits, and it provided that counsel for respondents and counsel for defendants shall meet and confer and shall file a joint written report detailing whether they have reached agreement on the sum owing from each Respondent to each Defendant. Accordingly, on July 30, 2010, the court ordered the parties to file a report within thirty days. On August 30, 2010, the parties filed a joint report stating that checks satisfying respondents obligations regarding the sanctions have been exchanged. In light of these representations, the courts orders regarding sanctions have been satisfied and the matter is now closed. (Appellate Commissioner) [7470174] (DL) [Entered: 09/10/2010 02:56 PM] |
| Filing 55 Served Panel with Amended order. [7469093] [08-80090, 03-57038] (DL) [Entered: 09/10/2010 08:43 AM] |
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Filing 54
Filed order amending order (WILLIAM A. FLETCHER, MARSHA S. BERZON and N. RANDY SMITH) The courts published order, filed July 13, 2010, is amended as follows: At page 10010 of the slip copy of the order, replace |
| Filing 53 Sent document, Order re: St. Bar request. [7461467] (DL) [Entered: 09/02/2010 12:12 PM] |
| Filing 52 Filed order (WILLIAM A. FLETCHER, MARSHA S. BERZON and N. RANDY SMITH) The State Bar of California has requested a copy of the report of the Independent Prosecutor, Professor Rory Little. Absent any objection, the panel proposes unsealing Prof. Littles report and all other sealed documents, with the following three exceptions: (1) the Declaration of Thomas V. Girardi Relating to Mitigation filed May 13, 2009; (2) the Declaration of Pamela Kay Traina filed May 13, 2009; and (3) the Submission of Thomas V. Girardi Regarding Correction to the Courts July 13, 2010 Order filed July 23, 2010. Respondents may comment on the proposed unsealing within 14 days after the filing date of this order. [7461452] (DL) [Entered: 09/02/2010 12:07 PM] |
| Filing 51 Sent document Order of 9/2/2010. [7461413] (DL) [Entered: 09/02/2010 11:44 AM] |
| Filing 50 Filed order (WILLIAM A. FLETCHER, MARSHA S. BERZON and N. RANDY SMITH) The July 14, 2010 request of Respondents counsel to redact the list of Counsel of Record that appears at the conclusion of this courts July 13, 2010 order is denied. Multiple documents in the public dockets of both the disciplinary case and the underlying appeal contain all the names of counsel. As the participation of all the originally named Respondents in these cases is a matter of public record, the requested redaction is not merited. [7461409] (DL) [Entered: 09/02/2010 11:41 AM] |
| Filing 49 Filed order (Appellate Commissioner) On July 13, 2010, the court adopted in full Judge Tashimas findings of fact, conclusions of law, and recommendations with respect to sanctions under Federal Rule of Appellate Procedure 38 and 28 U.S.C. 1912 and 1927, as they appear in the corrected version of the Special Masters Report and Recommendation that Judge Tashima filed on October 7, 2009. Judge Tashimas Report and Recommendation provides that counsel for respondents and counsel for defendants shall meet and confer and shall file a joint written report detailing whether they have reached agreement on the sum owing from each Respondent to each Defendant. The Report and Recommendation further provides that, if complete agreement is not reached, the joint report shall set forth the issues that remain to be resolved. The courts July 13, 2010 order refers the issue of sanctions to the Appellate Commissioner to conduct whatever proceedings he deems appropriate and consistent with Judge Tashimas report. Accordingly, within thirty days after the filing of this order, the parties shall meet and confer and submit to the Appellate Commissioner the joint written report regarding the amount of sanctions. (Appellate Commissioner) [7423488] [03-57038, 08-80090] (DL) [Entered: 07/30/2010 11:14 AM] |
| Filing 48 Filed [UNDER SEAL] Respondent Thomas V. Girardi, Esquire notice regarding court's 7/13/10 order. [7421206] (Turcios, Margoth) [Entered: 07/28/2010 03:57 PM] |
| Filing 47 Filed order (WILLIAM A. FLETCHER, MARSHA S. BERZON and N. RANDY SMITH) ...In a high-stakes gamble to enforce a foreign Judgment of nearly a half billion dollars, Respondents initiated and directed years of litigation against Defendants. Respondents efforts went beyond the use of questionable tactics they crossed the line to include the persistent use of known falsehoods. This litigation was based on three falsehoods: that Dole Food Company was named as a judgment debtor by a Nicaraguan court, that the Nicaraguan court corrected any mistakes it might have made regarding Dole Food Company in its judgment by the Writ of Execution, and that Respondents had submitted the corrected Writ of Execution to the state court and the federal district court. Respondents made these false representations knowingly, intentionally, and recklessly. Their actions vexatiously multiplied the proceedings at great expense to Defendants and required the Ninth Circuit to deal with a frivolous appeal. The court cannot and will not tolerate members of the bar employing the use of known falsehoods to further their objectives, no matter how appealing the underlying cause of their clients may be. For such conduct, Respondents should face substantial sanctions commensurate with the sums at stake, the efforts and resources expended in this litigation, and the gravity of their misconduct. 52Appellate Rule 38 and 1912 are read in pari materia to authorize the imposition of a monetary sanction for the filing and prosecution of any frivolous appeal. Joseph, supra, 31; see, e.g. In re George I, 322 F.3d at 591; NLRB v. Unbelievable, Inc., 71 F.3d 1434, 1441 (9th Cir. 1995). For this reason, the Special Master has not separately analyzed Respondents liability for monetary sanctions under 28 U.S.C. 1912 apart from their liability under Rule 38. 10064 IN RE GIRARDI The Special Master recommends to the panel that Respondents be sanctioned by being required to reimburse Defendants for the attorneys fees and costs incurred by Defendants in the Franco appeal,53 as follows:54 1. Respondents Thomas V. Girardi and the Girardi Firm shall reimburse Defendants Dow Chemical Company, Dole Food Company, and Shell Chemical Company (collectively, Defendants) their attorneys fees and costs, but not to exceed the aggregate sum of $125,000.00. 2. Respondents Walter J. Lack and the Lack Firm shall reimburse Defendants their attorneys fees and costs, but Lacks individual liability shall not exceed the aggregate sum of $250,000.00. 3. Respondent Paul A. Traina shall reimburse Defendants their attorneys fees and costs, but not to exceed the aggregate sum of $10,000.00 53Although it may well be academic because of the per-Defendant cap on the reimbursements recommended below, the Special Master includes as part of the attorneys fees and costs incurred by Defendants in the Franco appeal, attorneys fees and costs incurred by Defendants in prosecuting their motion for sanctions. Whether such fees and costs are recoverable as part of the sanctions imposed is an open question in the Ninth Circuit and the other circuits appear to be divided. The Special Master believes that the better view is the one adopted in In re Tutu Wells Contamination Litig., 120 F.3d 368, 387-88 (3d Cir. 1997) (affirming a sanctions award imposed under the trial courts inherent powers that included attorneys fees incurred in the sanctions proceedings), overruled on other grounds by Comuso v. Natl R.R. Passenger Corp., 267 F.3d 331, 338-39 (3d Cir. 2001). The Ninth Circuit earlier held that fees and costs incurred in pursuing a Rule 11 sanctions motion are not recoverable. Lockary v. Kayfetz, 974 F.2d 1166, 1177-78 (9th Cir. 1992). That holding, however, was overruled by the 1993 amendments to Rule 11, which now expressly permits such awards. See Margolis v. Ryan, 140 F.3d 850, 854 (9th Cir. 1998) (The rule in Lockary, enunciated in 1992, is no longer good law.). 54Pursuant to the Bifurcation Order, see note 2, supra, the matter of possible sanctions/discipline under Rule 46 is addressed by a separate, sealed order. IN RE GIRARDI 10065 4. Respondent [the young associate] shall reimburse Defendants their attorneys fees and costs, but not to exceed the aggregate sum of $5,000.00. 5. Respondent the Lack Firm shall be jointly and severally liable for the sanctions imposed on Respondents Traina and the young associate so that its aggregate liability shall not exceed $265,000.00. 6. Respondents aggregate liability to each Defendant shall not exceed $130,000.00, or said Defendants actual attorneys fees and costs, whichever is less. 7. Counsel for Respondents and counsel for Defendants shall meet and confer and shall file a written report with the Special Master within the time to be specified by the panel on whether they have reached agreement on the sum owing from each Respondent to each Defendant. If complete agreement is not reached, their report shall set forth the issues that remain to be resolved and resolution of those remaining issues are recommitted by the panel to the Special Master. * * * * * Note to Counsel: By analogy to Fed. R. Civ. P. 72(b), any party wishing to file objections to this Report and Recommendation must do so within ten (10) days of being served with a copy of this Report. Counsel of Record Thomas V. Girardi, Howard B. Miller, Girardi & Keese, Walter J. Lack, Paul A. Traina, Sean A. Topp, Engstrom, Lipscomb & Lack, Los Angeles, CA, for plaintiffs-appellants. Michael P. Fordas, Kirkland & Ellis, Chicago, IL, for defendant-appellee Dow Chemical Co. 10066 IN RE GIRARDI David W. Ogden, Wilmer, Cutler Pickering Hale & Dorr, Washington, DC, for defendant-appellee Shell Chemical Co. Alan E. Friedman, Jones Day, Los Angeles, CA, for defendant-appellee Dole Food Co., Inc. Thomas J. Nolan, Skadden, Arps, Slate, Meagher & Flom, Los Angeles, CA, for respondents Thomas V. Girardi and Girardi & Keese. Robert C. Baker, Baker, Keener & Nahra, Los Angeles, CA, for respondents Walter J. Lack, Paul A. Traina, Sean A. Topp, and Engstrom, Lipscomb & Lack [7402838] (DL) [Entered: 07/13/2010 11:26 AM] |
| Filing 45 Filed (ECF) Respondent Thomas V. Girardi, Esquire Correspondence: Letter to the Editor of the Daily Journal. Date of service: 10/16/2009 [7098394] (Nolan, Thomas) [Entered: 10/16/2009 04:44 PM] |
| Filing 44 ARGUED AND SUBMITTED TO WILLIAM A. FLETCHER, MARSHA S. BERZON and N. RANDY SMITH. [7096478] (LA) [Entered: 10/15/2009 02:25 PM] |
| Filing 41 Filed order (WILLIAM A. FLETCHER, MARSHA S. BERZON and N. RANDY SMITH) The request of Respondents Walter J. Lack and Paul A. Traina to close to the public the hearing scheduled for tomorrow, October 15, 2009, at 11:00 a.m., and to seal the transcript of the hearing, is denied.[7095433] (KKW) [Entered: 10/14/2009 04:54 PM] |
| Filing 43 Received UNDER SEAL In Re Paul A. Traina, Esquire notice regarding request for matters to remain sealed. [7096080]--[Edited 10/15/2009 by HH] (Turcios, Margoth) [Entered: 10/15/2009 11:46 AM] |
| Filing 40 Filed [under seal] In Re ENGSTROM, LIPSCOMB & LACK, Walter J. Lack, Esquire and Paul A. Traina, Esquire request concerning hearing. Served on 10/09/2009. [7092949] (Turcios, Margoth) [Entered: 10/13/2009 02:13 PM] |
| Filing 42 Received letter dated re: request that court provide the public and press with access to disciplinary action. [7096054] (Turcios, Margoth) [Entered: 10/15/2009 11:38 AM] |
| Filing 39 Filed UNDER SEAL Thomas V. Girardi request the declaration of Thomas V. Girardi relating to mitigation and all its supporting exhibits previously submitted to the court under seal on 05/13/09 remain under seal served on 10/05/2009 [7088895] (PANEL) (SM) [Entered: 10/08/2009 11:14 AM] |
| Filing 38 Filed clerk order (Deputy Clerk:MD): There will be a hearing in this matter at the James R. Browning United States Courthouse in San Francisco on Thursday, October 15, 2009 at 11:00 am in Courtroom One. The panel will hear from Walter J. Lack, Esquire and Paul A. Traina, Esquire. A total of forty minutes has been allotted for this proceeding. [7086874] (BY) [Entered: 10/06/2009 06:39 PM] |
| Filing 37 ARGUED AND SUBMITTED TO WILLIAM A. FLETCHER, MARSHA S. BERZON and N. RANDY SMITH. [7083483] (LA) [Entered: 10/02/2009 04:25 PM] |
| Filing 36 Notice of Oral Argument on OCTOBER 2 2009 San Francisco Calendar. Please return ACKNOWLEDGEMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Please open attached documents to view details about your case. [7060435] (AW) [Entered: 09/14/2009 12:45 PM] |
| Filing 35 CALENDARED: 10/02/2009 2:00 PM San Francisco, CA Courtroom 1 ( disciplinary hearing ) [7060426] (AW) [Entered: 09/14/2009 12:42 PM] |
| Filing 34 Filed order (WILLIAM A. FLETCHER, MARSHA S. BERZON and N. RANDY SMITH) Oral argument on the issue of possible discipline by this Court is scheduled for Friday, October 2, 2009, at 2:00 p.m. in Courtroom One of the James R. Browning United States Courthouse at Seventh and Mission Streets in San Francisco. (See Order for Complete Text) [7060393] (HH) [Entered: 09/14/2009 12:18 PM] |
| Filing 33 Filed [UNDER SEAL] Respondent Thomas V. Girardi, Esquire regarding special master's report dated May 19, 2009. (Turcios, Margoth) [Entered: 06/10/2009 02:40 PM] |
| Filing 32 Filed order (A. WALLACE TASHIMA) [UNDER SEAL] First and Final Report and Recommendation of the Special Master. (KKW) [Entered: 05/19/2009 11:55 AM] |
| Filing 31 Filed [under seal] The Independent Prosecutor's report, recommendation, and agreement with respondents; declaration relating to mitigation and exhibits in support of mitigation. (Turcios, Margoth) [Entered: 05/13/2009 03:09 PM] |
| Filing 30 Filed [UNDER SEAL] parties' stipulation regarding due date for independent prosecutor's final report and recommendation. (Turcios, Margoth) [Entered: 04/28/2009 12:02 PM] |
| Filing 28 Filed UNDER SEAL procedural order #1.8 (A. WALLACE TASHIMA) See order for complete text. (HH) [Entered: 04/24/2009 02:03 PM] |
| Filing 27 Filed UNDER SEAL Independent Prosecutor's status report, served on 03/30/2009 (BY) [Entered: 03/31/2009 07:11 AM] |
| Filing 26 Filed order UNDER SEAL (A. WALLACE TASHIMA): PROCEDURAL ORDER #1.7 (PLS. SEE ORDER FOR COMPLETE TEXT) (AF) [Entered: 02/19/2009 08:55 AM] |
| Filing 25 Filed order UNDER SEAL Procedural Order #1.6 (A. WALLACE TASHIMA) See order for complete text. (HH) [Entered: 01/15/2009 03:47 PM] |
| Filing 24 Filed order (UNDER SEAL) Procedural order #1.5 (A. WALLACE TASHIMA) See order for complete text. (SM) [Entered: 12/18/2008 01:43 PM] |
| Filing 23 Notice of Oral Argument on JANUARY 15 Calendar. Please return ACKNOWLEDGEMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. (AM) [Entered: 12/10/2008 03:36 PM] |
| Filing 22 CALENDARED: 01/15/2009 2:00 PM San Francisco, CA Courtroom 2 Status conference - CLOSED HEARING (AW) [Entered: 10/22/2008 12:02 PM] |
| Filing 21 Filed UNDER SEAL procedural order #1.4 order (A. WALLACE TASHIMA) See order for complete text. (SM) [Entered: 10/22/2008 11:46 AM] |
| Filing 20 Filed UNDER SEAL order (A. WALLACE TASHIMA) The joint stipulation regarding testimony, filed 09/22/08 is approved. IT IS SO ORDERED. (SM) [Entered: 09/30/2008 12:54 PM] |
| Filing 17 Mail returned on 09/08/2008 addressed to Diane L. Karpman, Esquire, re: August 21st order. Resending to: 301 N. Canon Dr., Ste. 303, Beverly Hills 90210. [03-57038, 08-80090] (HC) [Entered: 09/23/2008 09:58 AM] |
| Filing 19 Filed UNDER SEAL Joint Stipulation and Proposed Order Regarging Testimony. [08-80090, 03-57038] (DL) [Entered: 09/30/2008 11:17 AM] |
| Filing 18 Deleted Incorrect Docket Entry. (DL) [Entered: 09/30/2008 11:07 AM] |
| Filing 16 Entered appearance of Independent Prosecutor Rory K. Little in 03-57038 and Independent Prosecutor Rory K. Little in 08-80090. [08-80090, 03-57038] (ASW) [Entered: 09/08/2008 10:45 AM] |
| Filing 15 Filed clerk order (Deputy Clerk:bjb ): Judge Kozinski is no longer available for this case, Judge W. Fletcher has been drawn to replace him on the panel. [03-57038, 08-80090] (BJB) [Entered: 08/21/2008 02:42 PM] |
| Filing 13 Received (via fax) from Attorney Robert C. Baker, Esq. for In Re Walter J. Lack, Esq., Paul A. Traina, Esq., Sean A. Topp, Esq. and ENGSTROM, LIPSCOMB & LACK letter dated 07/22/2008, requesting a copy of the transcript from the Closed status conference held on 7/14/08. (NOTE: REQUEST GRANTED BY JUDGE AWT) (DR) [Entered: 07/22/2008 02:20 PM] |
| Filing 12 Filed order UNDER SEAL (A. WALLACE TASHIMA) See order for full text. (HH) [Entered: 07/16/2008 08:39 AM] |
| Filing 11 Filed order UNDER SEAL (A. WALLACE TASHIMA) See order for full text. (HH) [Entered: 06/30/2008 04:08 PM] |
| Filing 10 Received Appellees Dole Food Company, Inc., Dow Chemical Company and Shell Chemical Company statement in response to the court's order of June 9, 2008. PANEL and Special Master. Served on 6/25/08. (Turcios, Margoth) [Entered: 06/26/2008 02:23 PM] |
| Filing 9 Entered Rory K. Little in this case as Independent Prosecutor. (ASW) [Entered: 06/20/2008 03:56 PM] |
| Filing 8 Filed order UNDER SEAL (A. WALLACE TASHIMA): See order for full text. (HH) [Entered: 06/20/2008 11:31 AM] |
| Filing 7 Added attorney Robert C. Baker, Esq., for Paul A. Traina, , Sean A. Topp, ENGSTROM, LIPSCOMB & LACK and Walter J. Lack. (DL) [Entered: 06/19/2008 03:54 PM] |
| Filing 6 Added attorney Diane L. Karpman and Thomas J. Nolan, Esqs., for Girardi & Keese and Thomas V. Girardi. (DL) [Entered: 06/19/2008 03:52 PM] |
| Filing 5 Terminated Rory K. Little, Esq., for Thomas V. Girardi. (DL) [Entered: 06/19/2008 03:47 PM] |
| Filing 4 Filed order for PUBLICATION - Before: KOZINSKI, Chief Judge, Professor Rory K. Little, University of California, Hastings College of the Law, 200 McAllister Street, San Francisco, California 94102, is appointed as Independent Prosecutor in this matter. The Clerk will provide a copy of the file in this matter to Professor Little, including matters filed under seal. Following a review of the record, Professor Little is authorized to take steps as outlined in the Court's order of June 9, 2008, which has been docketed in both case number 03- 57038 and in this disciplinary docket, number 08-80090. All further disciplinary proceedings will be maintained on this docket. (RMM) [Entered: 06/10/2008 03:15 PM] |
| Filing 3 Added attorney Rory K. Little as Independent Prosecutor. (RMM) [Entered: 06/10/2008 01:49 PM] |
| Filing 2 Filed order (STEPHEN R. REINHARDT, ALEX KOZINSKI and MARSHA S. BERZON) This order is deemed FOR PUBLICATION. The Clerk shall open a disciplinary docket in this matter. All further proceedings involving possible sanctions or discipline, including this order, will be maintained on this new docket. The Clerk shall make a notation on the docket in 03-57038 indicating that all further proceedings involving sanctions or discipline will be maintained on docket 08-80090. [03-57038, 08-80090] (DLT) [Entered: 06/09/2008 10:16 AM] |
| Filing 1 Miscellaneous case docketed. [08-80090, 03-57038] (DL) [Entered: 06/05/2008 01:31 PM] |
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